Spencer, J.
delivered the opinion of the court. The defendant’s counsel made several points on the argument, two of which only I deem it requisite to examine.
1. The validity of the declaration; and, 2. The testator’s liability in consequence of the receipt of the 29th of September, 1779.
The objection is that the promise, to be rendered binding, ought to have been in writing, or alleged to have been made in consideration of assets. The counsel seemed to suppose, that the judgment on this count would be de bonis propriis, and that the executor would, in this mode of declaring, be prevented from pleading plene administravit. If such would be the consequence, then I should hold the objection to be valid; but according to the case of Secar v. Atkinson, (1 H. Bl. 102.) and of Executors of Hughes v. Hughes, (7 Bro. P. C. 550. and 2 Sound. 117. e. note 2.) the judgment will be de bonis testatoris, and this mode of declaring is [117] adopted merely to save the statute of limitations; consequently, the defendant is not prevented from .making any defence under such a form of declaring, which he might have made, had the declaration stated the promise of the testator, and his liability only.
The second point is clearly with the defendant. The receipt is proved by an account between the testator, in behalf of his son, the plaintiff, with the estate of Mary Dewitt; and it is evident that Henry Dewitt must have died before his wife Mary.
It cannot be pretended, if the testator was entitled in his own right to the share of his wife in her mother’s personal estate, that his ignorance of his rights, and receiving that share, as for his son, will give the plaintiff a legal right to call the representative of his father to an account for what he had a right to receive and retain.*
That the husband surviving his wife, is entitled to all her dioses in action, as well as to her personal estate in posáession, cannot be controverted. The 16th section of the act concerning executors and administrators, and the distribution of intestates’ estates,† (1 Rev. Laws, 539.) enacts, that nothing contained in that act shall be construed to extend to the estates of femes covert that shall die intestate, but that their husbands may demand >md have administration of their rights, credits, and other personal estate, and recover and enjoy the same, as fully as they might have done before the passing of the act. It is a transcript of the 29 Car. II. c. 3, s. 25. and in the case of Squib v. Wyn, (1 P. Wms. 381.) Lord Chancellor Cowper held, that even a term, which is a chattel real, shall go to the husband surviving his wife. In the case of Cart v. Russ, (1 P. Wms. 383.) a xvife died possessed of dioses in action, and the husband survived and died without taking out letters of administration to his wife, after which, the next of kin of the wife administered to her and Lord Parker held, that the admi[118] nistrator of the wife, was but a trustee for the executor of the husband, the right of the wife’s chases in action . being, by the statute of distributions, vested in the husband, as next of kin to the wife. Lord Hardwicke lays' down the same principle, in Elliot v. Collins. (3 Atk. 527.) He says, the husband surviving the -wife, her whole estate vested in him, at the time of her death, and no person could possibly be entitled to . the rights of the wife but himself, so that her whole property belonged to him. In Hargrave and Butler’s note to Coke Littleton,(a) (note 304.) after stating the statutes of distribution, they observe, upon the construction of these statutes, it has been held that the husband may administer to his deceased wife, and he is entitled, for his own benefit, to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested in. her and reduced into possession, or contingent and recoverable only by action or suit; and that by a series of cases, it is now settled, that the representative of the husband is entitled as much to that species of his wife’s property as lies in action or suit, and is not reduced into possession, as to any other; and that the right of administration follows the right of the estate, and ought, in case of the husband’s death, after the wife, to be granted to- the next of kin of the husband, and if obtained by a third person, he is a trustee for the representative of the husband. Bacon's Abridgment, (tit. Baron and Feme, C.) contains a note by Mr. Gwillim to the same effect; and Christian, -in his note to 2 Black. Com. 435. gives the same construction to 29 Car. II. c. 3. s. 25. that the husband shall have administration of all his wife’s personal estate, which he did not reduce to possession before her death, and shall retain it to his own use; and in case of his death before administration granted to him, or it be recovered, [119] the right to it passes to his personal representatives and not to the wife’s next of kin.
It may be added, that there is not an authority to be met with contradicting these well and clearly established principles.
The plaintiff rests his right to recover, on the ground that the testator received money to which the plaintiff is entitled; and the only count in the declaration on which he can recover, is the one for money had and received. Should it, therefore, be admitted, that as the testator did not take out letters of administration on the estate of his wife, he is to be regarded as only equitably entitled to the money he received, this equitable right is, in this action, sufficient to protect the defendant from any responsibility; for it cannot be questioned, that in the action for money had and received, the defendant may make any defence which shows that the plaintiff, ex asquo et bono, is not entitled to recover. Great stress has been placed on the terms of the receipt; and that it appears the testator meant to receive the money for his son, the plaintiff. I consider this as furnishing no legal or equitable title to the plaintiff, to sue for the money thus received, if the defendant has otherwise a right to retain. The amount of the argument is this, the defendant’s testator received his own money, or money to which he was entitled, for the plaintiff, and in this action, in which the plaintiff is bound to show that the money so received was his, or that he was equitably entitled to it, he shows directly the reverse, and that it was his father’s. It cannot be pretended that the receipt operated as a transfer of the property from the father to his son. It was a mere muniment of evidence, and worked no change in the right to the money.
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Spencer, J.
delivered the opinion of the court. The defendant’s counsel made several points on the argument, two of which only I deem it requisite to examine.
1. The validity of the declaration; and, 2. The testator’s liability in consequence of the receipt of the 29th of September, 1779.
The objection is that the promise, to be rendered binding, ought to have been in writing, or alleged to have been made in consideration of assets. The counsel seemed to suppose, that the judgment on this count would be de bonis propriis, and that the executor would, in this mode of declaring, be prevented from pleading plene administravit. If such would be the consequence, then I should hold the objection to be valid; but according to the case of Secar v. Atkinson, (1 H. Bl. 102.) and of Executors of Hughes v. Hughes, (7 Bro. P. C. 550. and 2 Sound. 117. e. note 2.) the judgment will be de bonis testatoris, and this mode of declaring is [117] adopted merely to save the statute of limitations; consequently, the defendant is not prevented from .making any defence under such a form of declaring, which he might have made, had the declaration stated the promise of the testator, and his liability only.
The second point is clearly with the defendant. The receipt is proved by an account between the testator, in behalf of his son, the plaintiff, with the estate of Mary Dewitt; and it is evident that Henry Dewitt must have died before his wife Mary.
It cannot be pretended, if the testator was entitled in his own right to the share of his wife in her mother’s personal estate, that his ignorance of his rights, and receiving that share, as for his son, will give the plaintiff a legal right to call the representative of his father to an account for what he had a right to receive and retain.*
That the husband surviving his wife, is entitled to all her dioses in action, as well as to her personal estate in posáession, cannot be controverted. The 16th section of the act concerning executors and administrators, and the distribution of intestates’ estates,† (1 Rev. Laws, 539.) enacts, that nothing contained in that act shall be construed to extend to the estates of femes covert that shall die intestate, but that their husbands may demand >md have administration of their rights, credits, and other personal estate, and recover and enjoy the same, as fully as they might have done before the passing of the act. It is a transcript of the 29 Car. II. c. 3, s. 25. and in the case of Squib v. Wyn, (1 P. Wms. 381.) Lord Chancellor Cowper held, that even a term, which is a chattel real, shall go to the husband surviving his wife. In the case of Cart v. Russ, (1 P. Wms. 383.) a xvife died possessed of dioses in action, and the husband survived and died without taking out letters of administration to his wife, after which, the next of kin of the wife administered to her and Lord Parker held, that the admi[118] nistrator of the wife, was but a trustee for the executor of the husband, the right of the wife’s chases in action . being, by the statute of distributions, vested in the husband, as next of kin to the wife. Lord Hardwicke lays' down the same principle, in Elliot v. Collins. (3 Atk. 527.) He says, the husband surviving the -wife, her whole estate vested in him, at the time of her death, and no person could possibly be entitled to . the rights of the wife but himself, so that her whole property belonged to him. In Hargrave and Butler’s note to Coke Littleton,(a) (note 304.) after stating the statutes of distribution, they observe, upon the construction of these statutes, it has been held that the husband may administer to his deceased wife, and he is entitled, for his own benefit, to all her chattels real, things in action, trusts, and every other species of personal property, whether actually vested in. her and reduced into possession, or contingent and recoverable only by action or suit; and that by a series of cases, it is now settled, that the representative of the husband is entitled as much to that species of his wife’s property as lies in action or suit, and is not reduced into possession, as to any other; and that the right of administration follows the right of the estate, and ought, in case of the husband’s death, after the wife, to be granted to- the next of kin of the husband, and if obtained by a third person, he is a trustee for the representative of the husband. Bacon's Abridgment, (tit. Baron and Feme, C.) contains a note by Mr. Gwillim to the same effect; and Christian, -in his note to 2 Black. Com. 435. gives the same construction to 29 Car. II. c. 3. s. 25. that the husband shall have administration of all his wife’s personal estate, which he did not reduce to possession before her death, and shall retain it to his own use; and in case of his death before administration granted to him, or it be recovered, [119] the right to it passes to his personal representatives and not to the wife’s next of kin.
It may be added, that there is not an authority to be met with contradicting these well and clearly established principles.
The plaintiff rests his right to recover, on the ground that the testator received money to which the plaintiff is entitled; and the only count in the declaration on which he can recover, is the one for money had and received. Should it, therefore, be admitted, that as the testator did not take out letters of administration on the estate of his wife, he is to be regarded as only equitably entitled to the money he received, this equitable right is, in this action, sufficient to protect the defendant from any responsibility; for it cannot be questioned, that in the action for money had and received, the defendant may make any defence which shows that the plaintiff, ex asquo et bono, is not entitled to recover. Great stress has been placed on the terms of the receipt; and that it appears the testator meant to receive the money for his son, the plaintiff. I consider this as furnishing no legal or equitable title to the plaintiff, to sue for the money thus received, if the defendant has otherwise a right to retain. The amount of the argument is this, the defendant’s testator received his own money, or money to which he was entitled, for the plaintiff, and in this action, in which the plaintiff is bound to show that the money so received was his, or that he was equitably entitled to it, he shows directly the reverse, and that it was his father’s. It cannot be pretended that the receipt operated as a transfer of the property from the father to his son. It was a mere muniment of evidence, and worked no change in the right to the money.
I cannot, however, assent to the position, that the plaintiff has even a technical legal title to the money received by his father. The administration given by the statute to the husband who survives his wife, cannot be necessary to entitle him to the beneficial use of what he [120] recovers. It merely confers a right to sue for her choses in action; and if he can get them, without suit, his title is as perfect as though he had taken letters of administration. . The statute expressly provides, that nothing contained in it shall extend to the estates of femes covert; and consequently, the plaintiff cannot claim under this statute; it recognises, the common law right of the husband, to recover and enjoy the personal estate of his deceased wife.
The equitable rights of the husband, or his representatives, will arise, should letters of administration be taken out on her estate by any other than the husband or his personal representatives. The legal title to recover the choses in action of the wife, would then reside in such administrator, and the equitable right to them in the husband or his representative.
The construction of the statute must be the same in law as in equity ; and it cannot be maintained that when it gives the right in the deceased wife’s personal estate to her husband, and gives him the right of administration, that any other person has a legal title against the. husband.
Baron Comyns, in his Digest, (tit. Baron and Feme, E. 3.) lays down the law to be, that if the husband dies without administering to the personal estate of his wife, it goes to his representative, and is vested in him before administration taken out, and not to her next of kin; and he takes the distinction I have mentioned, that if administration is granted to such next of kin, yet in equity he is looked on as a mere trustee for the representatives of the husband.
Upon no principle can the plaintiff recover, and the defendant must have judgment.
Judgment for defendant.