The opinion of the Court was delivered, by
Lowrie, J.This case has its origin in 1837, and therefore depends, for its ruling principles, on the law of husband and wife as it stood before the Act of 1848. This wife became entitled to the annual interest of a sum of money, proceeds of land of a former husband, as a substitute for dower, and the administrators of the former husband intrusted the present husband with the sum, out of which the interest arises, he engaging to pay his wife the interest during life, and at her death to refund the principal. The husband has used up the principal and has failed, and the administrators will have to bear this loss; and now the wife says that he has never paid her the interest, and demands that the administrators shall pay her; yet her claim does not impress us as being either strikingly honest or legal.
As husband, Meisenhelter was entitled to his wife’s income, and by his contract he was to pay it, and thus he occupied the position of both debtor and creditor. If he paid the income he could at the same time claim it back for himself. But it would be idle to *394require him to go through such a form as a means of showing his intention to appropriate the money to his own use. The true rule is to presume that, if he did not pay the money to the use of his wife, he retained it for his own. His neglect to pay was because of his intention to appropriate to himself, and was equivalent to such appropriation; Hind’s estate, 5 Whart. 188; Ellis v. Baldwin, 1 W. & Ser. 253. If her income had been dower, and her husband had bought and'then sold the land out of which it issued, without reservation, this would amount to an appropriation of the dower to himself during coverture.
In this case, how can it be otherwise? Suppose he had refused to pay the interest, what then ? His refusal to pay is an appropriation to his own use; and by not paying he refuses to pay. The matter was entirely at his pleasure. If the administrators had sued him regularly as the interest fell due, he could always have paralysed their action by pleading payment to himself, or that he had appropriated it to his own use, as he. was entitled to do. In truth the contract that he would pay his wife was a mere form; for it meant only that he would if he pleased. Under such- a contract the administrators could not enforce the rights of the wife, for she had,none; and of consequence they are not responsible to her. She cannot reply that the administrators should not have put the money into such a position, for she had no claim on anything but the interest, and as to that her husband could say, and did say, I claim that and choose to have it in such a position that I can most readily enjoy it. It was put into that position, and cannot now' be changed at the expense of the administrators. The case does not raise the question as to the wife’s right in ease she should survive her husband.
Decree: It is ordered, adjudged, and decreed, that the decree of the Orphans’ Court of York county, directing the payment by the administrators of Peter Boose, deceased, to Rebecca Miesenhelter of annual interest be reversed with costs.
Lewis, J., dissented.