I concur in the main opinion except in the holding, directly or by inference, that, after default of a husband, the wife may later defend a right of the husband lost by such default, in the absence of a showing that the husband neglected to defend, and that the husband can inherit from his wife the right to attack his own default judgment through such inheritance, without even a showing of negligence. So to hold is to reason in a circle.
I think a defense by the wife of the right of the husband, under the statute, on "neglect" of the husband, must be interposed before a default judgment, at least that the default is not presumed to be neglect without proof. I think such a right to defend the right of the husband was personal to the wife, due to her relation as wife, in its nature and agency which did not survive or pass upon her death to her heirs or representatives.
A default of itself is not evidence of neglect of the husband. To neglect means, "To fail to attend to with due care or attention; to forbear one's duty in regard to; negligently to omit or to suffer to pass unimproved, unheeded, undone, etc.; to slight." (Webster's New International Dictionary, G. C. Merriam Co., 1921.) The husband may have given every attention due or necessary. He may have been honest and believed that the plaintiff had a just claim and he no defense, and, being unable to pay or satisfy the claim, have permitted default and judgment as the honorable thing for him to do. Yet the main opinion would permit the wife to defend his right after such default, by a holding that a default establishes neglect, under C. S., sec. 6638.
I think it is entirely unnecessary to go so far to decide the issues. A recital of the inheritance of the wife's interest in the property, with the other recitals, was sufficient to state a cause of action. In fact, I think the husband could have maintained the action, and thus his administrator could. (Shoemaker v. Collins, 49 Mich. 595, 14 N.W. 559.) *Page 694