I think the judgment should be affirmed. I do not think that this action could have been maintained by the plaintiff without taking out letters of administration, on the ground that he was the husband of one of the mortgagees and the survivor of his wife. The debt secured by the mortgage is a chose in action, it was not reduced into the possession of the husband during coverture. It is necessary that an action should be brought to secure the debt. The plaintiff as surviving-husband will be entitled to the money when collected, but in what character is he entitled to maintain an action to secure the money? The husband is solely entitled to administration on the estate of his wife. He is to give
The husband may undoubtedly receive voluntary payments and may in that way have assets in his hands, or he may take possession of her personal property if he can obtain it without action. But I know of no authority for his maintaining an action in his individual character to collect the . debts accruing to his wife at the time of her death. It is clear that they are not legally and unqualifiedly his.
The statute, section 30, shows that letters may be granted to a person other than the husband, by reason of his neglect, &c., and in such case the administrator is to account for and pay over the assets remaining in his hands to the husband or his personal representatives after the payment of the debts. If the husband survives the wife, he, as her administrator, is entitled to all her personal estate which continued in action or unrecovered at her death. (Roper on Husband and Wife, 205.) If he dies before all such property'is recovered, his next of kin will be entitled to it in equity. But the wife’s next of kin will be entitled to letters of administration (de bonis non) of her estate not received by her husband during his life; they will become the trustees of what they receive for the next of kin of the husband. (Id. 205.) This is the common law, but our statute has changed the law in one respect. If the husband die leaving assets unadministered they pass to his personal representatives. In Ransom agt. Nichols (22 N. Y. R. 110), it was held that the husband,
I have examined all the cases cited. They do not show that the husband may maintain the action vs ithout letters.
If this decision is good law it follows that the plaintiff cannot recover in this action.
The fact that the plaintiff had induced the defendant to give a note some three years after the death of his vsife, cannot change his rights as surviving husband. It is still a mere chose in action, to be recovered by suit at law. In order to have invested him as owner he must have recovered possession during coverture, and besides it will be seen by the testimony of the defendant (and nowhere denied), that he refused to give a note to plaintiff as being the owner, but gave one payable to Frank Eagle, under the express agreement that it was to be left with Sarahette Webb for the benefit of Frank if he should live to want it. If not it would belong to the Webb estate. That note was afterwards given up and the note in question given in its place, under the reiterated assurance of the plaintiff, that he had no interest in the demand, and only wanted the note • for the benefit of Frank Eagle. By reference to the note it will be seen, that
We have examined, with some care, the sevei'al questions arising, and decided on the trial, and have not been able to find that any rule, as to the admission or rejection.of evidence was violated to the prejudice of the plaintiff.
The defendant insists that either and each of the foregoing points is a sufficient defense to this action, and that the judgment should be affirmed with costs.
Thepromisory note in suit was executed and delivered by the defendant to the plaintiff. By its terms it is payable to the plaintiff or order. The consideration for which it was given, was a debt which the defendant owed originally to the plaintiff’s wife, Cynthia, who died intestate about two years and six months before the note was made, leaving the plaintiff, her husband, surviving her, and as the referee has found, without having made any valid effectual disposition in her life time of the debt due to her from the defendant.
These facts raise a clear rima facie right in the plaintiff to recover upon the note, and in my judgment such right is not overcome by any countervailing evidence in the case. The matters relied upon by the defendant at the utmost, show that the note was given to the plaintiff, in trust for others, and not for his own use. The ante-nuptial agreement between the plaintiff and said Cynthia, does not release the defendant from his obligation to pay his note to the payee therein named, although it may tend to show that such payee will be liable to account to others for whatever he shall receive upon the note. It was competent for the defendant to bind nimself to pay to the plaintiff as a trustee for others, and it is quite apparent that he intended to do so, when he gave
No fraud was practiced upon the defendant to induce him to execute the note. According to his own testimony he was informed by the plaintiff of the ante-nuptial arrangement between him and Cynthia, nearly two years before the note was executed. The plaintiff’s right to recover does not depend on his having taken out letters of administration upon the estate of his wife. The term administrator used in the note is a mere word of description, in no respect essential to the right of the payee to sue. In short, the note was given on a good consideration for a valid and just debt and without fraud, and no reason is perceived why the payee should
The judgment should he reversed, and a new trial ordered.