Roberts v. Place

18 N.H. 183

• Court: Superior Court of New Hampshire
• Decided: July 15, 1846
• Status: Published

Opinion

Parker, C. J.

Upon the marriage of a feme sole, who is at the time the holder of a promissory note, as payee or indorsee, the property does not vest ipso facto in the husband, but the note is a chose in action, which he •may elect to make his own, by reducing it to possession; (Parsons v. Parsons, 9 N. H. Rep. 321; Marston v. Carter, 12 N. H. Rep. 159); in which case his indorsement will transfer the note in the same manner as her indorsement would have done, prior to the marriage. If the husband does not assert his marital rights, the right of action will survive to the wife.

The question then is, whether there is any thing in this case to take it out of the general rule. The note is payable, to the wife as administratrix, and it appears that it was given upon the sale, by her, of a part of the estate upon which she administered. Before the marriage she might have recovered it as part of the estate. 1 T. R. 487. If it be regarded as part of the estate, and held by her as such, in her capacity of administratrix, it is clear that the husband had no title to it, and no right to reduce it to possession. Co. Litt. 351, b. But the administratrix, upon the sale, might have taken the note to herself, without the addition of administratrix, and have disposed of it afterwards at her pleasure, being accountable upon her bond; and it is well settled that notwithstanding she took it to herself as administratrix, she might afterwards have elected to regard that as mere description, and have transferred it before marriage by her personal indorsement, or have recovered the avails to her own use, in an action in her own name, without any notice of the fact that it was payable to her as administratrix. 3 Blackf. 253. What she might have done before marriage her husband might do afterwards, with her assent, if there was no danger of loss to the estate. The marriage extinguished her authority as administratrix. Rev. Stat., chap. 64, sec. 17. But this did not change the character of the note, so that it thereby became absolutely a part of the estate to which an administrator de bonis non would be entitled as a matter of right, and in the absence of any objection on the part of the wife, or of any one interested in the estate, we are of opinion that it may well be taken to fall within the marital power of the husband, under the general rule, so that his indorsement passed the property.

Whether the husband might exercise the same power, against the express dissent of the wife, we do not determine. She might perhaps well insist that it should be regarded as assets, until she elected to treat it otherwise. Whether her sureties, or those interested in the estate, might not invoke the aid of equity, to restrain her and her husband from an election to treat the note as her personal property, in a case of apparent danger of loss to the estate, is a question also upon which we do not propose to enter. It is obvious that it might be held that the indorsee had sufficient notice, upon the face of the note itself, to put him upon inquiry whether there was any objection to the transfer. 7 Ves. 152, Hill v. Simpson. But nothing of the kind appears here, and we think the objection coming from the defendant ivas rightly overruled.

Judgment on the verdict.