Hoyt v. Howell

The Chancellor.

The first cause of demurrer assigned is not good. By the sale, the lands were converted into money. The case stated in the bill is, that the husbands received the whole money for the share of their respective wives, and that the husbands deposited with the defendant such portions of the money as, with a like portion deposited with the defendant by Adelia Smith, an unmarried daughter of the intestate, made a sum the interest of which would bo equal to the yearly value of the dower of the widow of the intestate; which interest was to be paid by the defendant to the said widow; and on her death the sums so deposited with, the defendant were to be paid by him to the persons depositing the same.

By this statement the money deposited was the money of the husbands ; and the case is the same as if they had deposited money received by them from any other source.

From this view it follows, that the complainant may sue in his individual right, to recover from the defendant, on the death of the widow, the money deposited by him with the defendant.

This disposes of tho third cause of demurrer also.

1 am also of opinion that the case stated in the bill is a case *332for relief in this Court. This disposes of the 4th and 5th causes of demurrer assigned.

The 2d cause of demurrer assigned is good.

Adelia Smith died before the widow, leaving a will, by which she gave to her sister Anna Maria Hoyt, the wife of the complainant, all her part, (being one-fourth) of the moneys so deposited with the defendant during the life of her mother, the said widow ,* and appointed Charles Hoyt, the complainant, executor of her will.

After the death of Adelia, and before the death of the widow, Anna Maria Hoyt, the wife of complainant died, intestate, and the complainant took letters of administration of her estate.

The bill is exhibited in the name of Charles Hoyt in his own right for the money in the defendant’s hands given by the will of Adelia to his wife; of which will he is executor: he can sue only as executor. And a claim in his right as executor of Adelia’s will, would be improperly joined in the same bill with a a claim in his own right.

For this cause of demurrer assigned the demurrer is allowed.

Order accordingly.