The opinion of the court was delivered by
Peck, J.This case was argued at the last term of this court and held for consideration. The action is trover for certain promissory notes belonging, as the plaintiff claims, to the intestate. It appears that the notes previous to and at the time of the marriage between the defendant and the intestate, were her property, and that they were in the possession of her son Lewis Albee, who continued to hold and manage them for her for some time after the marriage. The jury under the charge of the court must have found that there was an ante-nuptial contract by which the intestate was to retain the entire *323interest and control of her property, and that the defendant was to have no interest in, or control over it. The jury must have also ' found that when the notes afterwards came into the possession of the defendant, he received them to hold as agent or trustee for the benefit of his wife, the intestate, without any personal interest or right in the defendant to the notes. It was conceded by the defendant that prior to the death of the intestate he had converted to his own use and benefit all the notes thus put into his hands except the note against Buchanan. The jury have found that the defendant thus converted them with the intent and purpose of appropriating them to his own use and depriving his wife and her children of the property. This act, done with such intent and purpose, the court told the jury would be a conversion for which trover would lie. The exceptions state that the defendant excepted to the charge so far as the jury were instructed what would amount to a conversion by the defendant.
The principal questions litigated before the jury were, whether there was such ante-nuptial contract; and whether when the defendant received the notes, some time after the marriage, he received them as the agent of his wife to be held for her use and benefit, or whether she intentionally surrendered all her right and interest in the notes to him. The jury having found against the defendant on both questions, the result is that the husband had abandoned and surrendered to his wife his marital rights as to this property, or rather what would have been his right had there been no ante-nuptial agreement; and hence the right of the wife to this property as her sole and separate property, was perfect and absolute as against her husband. The defendant therefore had no right to collect and appropriate the notes to his own private use with the intent and purpose of defeating the testator of this right, and depriving her of the property. Such act was certainly a conversion in fact, it was wrongful and unauthorised, and therefore was a conversion in law. The right of the testator to this property was no less perfect, and the act of the defendant no less wrongful and flagrant, than if the marriage relation had not existed. It is insisted in this court by the defendant’s counsel, that the only remedy, if any, is in chancery. *324It is true that the testator in her lifetime could not have maintained at law an action of trover against the defendant. But this was not from any want of right or title in. the property, nor because the act of the defendant was not a wrongful and unlawful conversion of her property, nor because she was without remedy to redress the grievance. It was by rea'son of a personal disability a wife is under, incapacitating her to sue her husband, at law. Her remedy would have been ample in a court of equity in her lifetime. Her administrator succeeds to all her rights, but we are not prepared to hold that, in enforcing those rights, he is necessarily restricted in his remedy, to the very remedy to which the intestate was limited by reason of the personal disability of coverture, whereby she is legally incapacitated to sue her husband at law. It is true the-administrator represents the intestate and succeeds to her rights, but he is not under her disability. So far as the disability arising from the coverture of the intestate affected her rights, or the substantial merits of her claim, her representative must be affected; but beyond that there does not seem to be any sound reason why that disability of the testator, which was merely personal, and only affected the mode of her relief, should embarrass or control her representative in the form of remedy. If he is not thus restricted, then, although the intestate could not have recovered of her husband at law in assumpsit for the money he collected and wrongfully appropriated to his use, yet her administrator might resort to that remedy. For the same reason it would seem that he might maintain this action of trover for the notes, since the act complained of was a positive tort, an actual, unlawful, injurious conversion of the testator’s property.
But it is not necessary to decide this question, as it is not raised by the bill of exceptions. In trover there are two principal questions, one relating to the right of the plaintiff to the property, the other as to the wrongful act of -the defendant, technically called the conversion. The question whether the right or title of the plaintiff was such as.could be enforced at law, or such as would enable him to maintain trover, if a conversion was proved, does not appear to have been raised in the county court. The only exception is to the charge as to what would constitute a conversion. The *325question of law, whether the right of the plaintiff was such as would entitle him to maintain trover against a tort feasor, or whether it was exclusively of equity jurisdiction, was not raised and does not come within the exception taken. On that.point the facts only were disputed. If the facts which the court required the jury to find in order to constitute a conversion, had shown a right in the defendant thus to appropriate the property to his own use, the charge would be erroneous, and the defendant could avail himself of the error under this exception; as in that case the act of the defendant would not he wrongful and therefore not a conversion. But the facts found by the jury show the contrary. This exception must be overruled.
In relation to the note against Buchanan, it appears that the only act the defendant had done was to surrender up the note he received of his wife against Buchanan, and take another for the amount payable to his wife, and this he still held in his possession. The court told the jury there had been no conversion of this note unless by refusing to surrender it to the plaintiff when demanded.
The evidence in relation to a demand and refusal was, that the plaintiff, the day before he commenced this suit, met the defendant at Derby Center, five miles from the defendant’s residence in Charleston, informed him he had been appointed administrator of Mrs. Cole, and demanded of the defendant all the notes that Mrs. Cole brought to him, and all that belonged to her, and that the defendant replied that if she left any property the plaintiff must look it up, that he should not produce any. This demand by the plaintiff and absolute refusal by the defendant, unaccompanied by any intimation on the part of the defendant that he would ever comply with the demand, precludes the defendant from setting up on trial the excuse that he had not reasonable time and opportunity afforded him to comply with the demand before the commencement of the suit, and fully justifica the charge of the court-on this point.
The exception to the exclusion of the defendant as a witness is not insisted on by the defendant’s counsel.
Judgment affirmed.