take the accounts which have been settled between the parties to be correct unless some errors are pointed out, which will then be corrected, and cause an account to be stated from that time. If there has been no account stated, or any express or implied settlement, then the accounts must be stated from the commencement of the partnership. If, in case of the death of a partner, the survivors have employed the capital without authority, the profits which they have made will be considered as capital, and as joint property subject to all just deductions.171 1531. The division of the surplus will be considered under two heads: of the things to be divided, and of the manner of making the division. 1532. The division cannot be made until after a liquidation has taken place and the rights of the respective partners have been ascertained. For this purpose all the profits which have been made by a partner, whether openly in the general transaction of the social business or in a clandestine manner, contrary to his duty as a partner, by carrying on the same or another trade for his private advantage, and in a manner injurious to the interest of the partnership, must be brought into the assets of the firm ;172 for when the profits arise from the capital or labor belonging to all the partners, they must be divided amongst them all. The assets consist of every thing which belongs to the partnership, whether the property be real or personal, and whether it consists of choses in possession or choses in action. The partners have a right to insist that all the property shall be turned into money. But it not unfrequently happens that such articles as have not been sold or disposed of are divided among them. Choses in action, which are classified into good, doubtful, and bad, are also sometimes divided equitably among partners. With regard to the trade-marks and good-will of the establishment, the right to use the one or enjoy the other is generally allotted to one of the partners; but they must be sold if insisted on.173 If nothing has been agreed upon in relation to trade-marks, it seems but reasonable that those who continue the business may use them, provided the use of them shall not be injurious to the other partners, by making it known by proper advertisements that they no longer designate the same establishment. 1533. In the division of the property, which we will suppose has all been reduced to cash in the first place, each of the partners is to be returned such advances as he has made to the firm. The remainder of the assets are divided in proportion to the amount of the capital stock which each partner has furnished, unless there has been a different mode of division agreed upon by the articles of agreement. In that case the division must be made as agreed upon. Willet v. Blanford, 1 Hare, Ch. 253; Collyer, Partn. B. 2, c. 3, s. 4. 172 Waring v. Cram, 1 Pars. Eq. Cas. Penn. 516. 173 Holden v. McMakin, 1 Pars. Eq. Cas. Penn. 270. 389 CHAPTER XIV. TITLE TO PERSONAL PROPERTY BY OPERATION OF LAW 1534-1543. Title by marriage. 1536-1538. Title to chattels in possession. 1537. Chattels personal. 1538. Chattels real. 1539-1543. Title to choses in action. 1541. By what capacity husband takes. 1544-1557. Title by intestacy. 1547. Appointment of administrator. 1548-1557. Kinds of administrators. 1549-1551. General administrators. 1550. General administrator of an intestate estate. 1551. General administrator cum testamento annexo. 1552-1557. Special administrators. 1553. Administrators with limited authority over the estate. 1562. Title by bankruptcy. 1565. Title by testament. 1534. Having examined the law by which title is vested in property by original occupancy; by acts of war; and by contract, or the acts of the parties, it will be proper now to consider how title is vested in property by operation of law. This may be by marriage, by intestacy, by forfeiture, by judgment, and by bankruptcy or insolvency. 1535. By the common law the husband becomes liable for the debts of the wife incurred before marriage, and they may be recovered by a joint action against him and his wife during the coveture. To balance this liability the law vests in him, by the marriage, all the personal chattels which were in her possession at the time of the marriage, and her other personal property sub modo. He is also entitled to certain rights in her real estate which will be considered in another place. 1 By the civil law, the property of the husband and wife is held in a kind of community or partnership, so that the wife's share cannot be disposed of by the husband, nor sold for his debts. In Louisiana, the rights of the husband and wife are regulated by the code, B. 3, t. 6. The rule of the common law has been changed and modified by statute in most of the states. The personal property of the wife continues to be her separate property after marriage in New York, Pennsylvania, Massachusetts, Michigan, Maine, Minnesota, Wisconsin, California, and Alabama, and in Iowa under certain limitations. In Texas there is a community of goods subject to control of the husband. N. Y. Stat. 1848, Ch. 200; Penn. Stat. April 11, 1848; Mass. Gen. St. Ch. 108; Mich. Comp. St. 1857, art. 16; Me. Rev. St. Ch. 61; Minn. St. 1858; Wisc. Rev. St. Ch. 95; Cal. Stat. 1858, Ch. 22; Ala. Stat. 1850, Ch. 23; Iowa, Stat. 1860, 2489; Tex. Digest, p. 312. 1536. A distinction is made between her chattels personal and her chattels real. 1537. All the wife's chattels personal in possession vest immediately in the husband. Money, furniture, and the very setting out the wife has received from her father, belong to the husband, immediately on the marriage; but from this general rule must be excepted the wife's clothing and paraphernalia suitable to her station in life; and though he might, in his lifetime, give away or sell her jewels and ornaments, yet, if he dies without having disposed of them, they will belong to her after his death, for he cannot bequeath them by his will. 1538. A chattel real vests in the husband, not absolutely, but sub modo; as, in the case of a lease for years, the husband is entitled to receive the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture, and it is liable to be taken in execution for his debts; if he survives her, it becomes immediately his own. But in case the wife survives him, and such chattels remain undisposed of by the husband, so that the property has not been changed, the right to it survives to the wife, for, as before observed, he cannot bequeath it by his will.3 1539. At common law the husband is entitled to the wife's choses in action, and he may reduce them to possession or sell them, and then they become his absolutely. But if in his lifetime he does not so dispose of them, at his death they survive to the wife, and she takes them in her own original right, without administering to the estate of her husband, and they will not be liable for his debts. On the death of the wife, her choses in action do not, strictly speaking, survive to the husband, but he may recover them as her administrator, and after paying her debts, dum sola, for which he will be responsible though as husband, he will then be no longer liable for them; they will belong to him. This right is given to him by the English statute of 22 and 23 C. II, commonly called the statute of distributions, and the statute of 29 C. II, c. 3, s. 25, the provisions of which statutes have been re-enacted in most of the United States.5 1540. Questions frequently arise as to the right by which the husband takes, what is a sufficient transfer of a chose in action to deprive the wife of her right as survivor, and to what equity the wife is entitled in her choses in action. These will be separately examined. 6 1541. The husband cannot take under the statute of distribution as next of kin to his wife, for they do not bear that relation to each other; he takes under the character of husband. Statutory provisions exist in most of the states, securing to the wife her separate property acquired after marriage, and allowing her to engage in trade as a feme sole. In general the assent of the husband is required to enable her to dispose of her separate property. In some states the rule of the common law exists, and property acquired by the wife after marriage vests immediately in the husband. Skillman v. Skillman, 2 Beasl. N. J. 403; Quigly v. Muse, 15 La. Ann. 197. See Hall v. Young, 37 N. H. 134. Personal property in the possession of the husband or in the possession of both is presumed to belong to the husband. Gillespie v. Miller, 37 Penn. St. 247; Vaden v. Vaden, 1 Head, Tenn. 444; Young v. Ward, 21 Ill. 223; Commonwealth v. Williams, 7 Gray, Mass. 337. 3 Coke, Litt. 351, a. Coke, Litt. 351; 2 Sharswood, Blackst. Comm. 434. 5 Biggest v. Biggest, 7 Watts, Penn. 563; Hoskins v. Miller, 2 Dev. No. C. 360; Whitaker v. Whitaker, 6 Johns. N. Y. 112; Bryan v. Rooks, 25 Ga. 622; Ryder v. Hulse, 24 N. Y. 372. The common law in regard to the wife's choses in action has been modified by statute in the same manner as in regard to her other separate property, and after her death an action to reduce the chose into possession must be brought by her representatives and not by the husband. Willis v. Roberts, 48 Me. 257; Sharp v. Burns, 35 Ala. N. s. 653. 6 Watt v. Watt, 3 Ves. Ch. 246; Garrick v. Camden, 14 Ves. Ch. 381; Anderson v. Dawson, 15 Ves. Ch. 537; Bailey v. Wright, 18 Ves. Ch. 49, 55. 1542. By collecting money due on a bond, or note, or other chose in action, the husband appropriates it to his own use, and by that conversion makes it his own, unless, indeed, he manifests an intention to preserve it for his wife. An actual sale of the chose in action will transfer it to the purchaser divested of the wife's right; but a general assignment in bankruptcy, or under insolvent laws, will not pass her property or right of survivorship, and if the husband die before the assignees reduce it to possession, it will survive to her.10 Nor will an assignment by the husband of the wife's chose in action as a collateral security deprive her of her right of survivorship." Obtaining a judgment in his own name for the purpose of recovering such chose in action will deprive the wife of her survivorship, but if the judgment be in favor of the husband and wife jointly, her right survives.12 To deprive the wife of the right of survivorship the conversion must be made by the husband as such, and not in a representative capacity.13 Bringing an action by the husband is a sufficient reduction into possession, although he die before judgment.14 1543. When the husband is compelled to go into chancery in order to recover a chose in action, before he will be permitted to recover, he will be required to make a reasonable provision out of it for the maintenance of his wife and children, on the ground that he who asks equity must do equity. It matters not, therefore, whether the suit for the wife's debt, legacy, or portion be instituted by the husband himself or by his assignees; in either case, a just settlement on the wife must first be made of a portion of the property; and this provision is not to be proportioned merely to that part of the wife's equitable right that the complainant seeks to recover, but to the whole of her personal fortune, including what the husband had previously received.15 The right of the wife to have a provision made for her is called the wife's equity.16 1544. When a man dies without a will he is said to die intestate, and the state or condition of his estate is an intestacy. The real estate of which he was seized at the time of his death passes by operation of law to his heirs by descent, and his personal property becomes vested in any one who may be lawfully appointed 'It was held in Pennsylvania, that taking possession is not in all cases conclusive, though it may be considered as primâ facie evidence of conversion. On proof being made that he held the money as her trustee, his estate would be liable. Estate of Hinds, 5 Whart. Penn. 138. See Stanwood v. Stanwood, 17 Mass. 57; Marston v. Carter, 12 N. H. 159; Phelps v. Phelps, 20 Pick. Mass. 556; In Re Gray's Estate, 1 Penn. St. 327; Timbers v. Katz, 6 Watts & S. Penn. 290; Barber v. Slade, 30 Vt. 191. 8 Hill v. Townsend, 24 Tex. 575; Lynn v. Bradley, 1 Metc. Ky. 232. But the assignment must be for a valuable consideration. 9 It is well settled that an assignment in bankruptcy or insolvency vests in the assignee all the husband's rights including the right to reduce to possession. Smith v. Chandler, 3 Gray, Mass. 392. And as the assignee would be guilty of a breach of trust in not reducing the choses to possession, the question raised in the text would not be likely to occur unless their existence was fraudulently concealed. 10 This is the general rule, though in Pennsylvania, owing to the force of certain expressions in the act of Assembly, the choses in action of the wife pass to the assignees of an insolvent, not subject to her right of survivorship. Richwine v. Heim, 1 Penn. 373. 11 Hartman v. Dowdel, 1 Rawle, Penn. 279; contra, Tritt v. Colwell, 31 Penn. St. 228. 12 Oglander v. Baston, 1 Vern. Ch. 396; Stewart's Appeal, 3 Watts & S. Penn. 476; Knight v. Brawner, 14 Md. 1. 13 Estate of Kintzinger, 2 Ashm. Penn. 455; Mayfield v. Clifton, 4 Ala. 375. 15 Teneick v. Flagg, 5 Dutch. N. J. 25. Dearing v. Fitzpatrick, 1 Meigs, Tenn. 551; Kenny v. Udal, 5 Johns. Ch. N. Y. 464; 1 Beav. Rolls, 593; Howard v. Moffat, 2 Johns. Ch. N. Y. 206; Dumond v. Magee, 4 Johns. Ch. N. Y. 318; Duval v. Farmers' Bank, 1 Gill & J. Md. 282; Durr v. Bowyer, 2 M'Cord, Eq. So. C. 368. See Rees v. Waters, 9 Watts, Penn. 90. 16 Shelford, Marr. & D.; Bouvier, Law Dict. Wife's Equity. his administrator, to manage his estate in his place, distribute it according to law, and to represent the intestate. The administrator does not receive the personal property for his own use; he is a mere trustee to administer it for the purpose of paying the intestate's debts and distributing the surplus, after paying the just expenses of his administration, to the next of kin of the intestate.17 1545. By the term next of kin is meant the relations of a party who died intestate. In general, no one comes within the term who is not included within the provisions of the statute of distribution. A wife cannot claim as next of kin to her husband, nor a husband as next of kin to his wife; and, under the intestate laws, this is perhaps always the case.18 1546. To understand this subject we must ascertain who may be appointed an administrator and by whom he is to be appointed, the several kinds of administrators and their various powers. 1547. When the rights of men were but little understood in England, the king, and afterward the clergy, seized upon all vacant estates, and so much abuse prevailed that but little of what a man left at his death benefited his family. The clergy, with their usual avidity, seized the goods of the intestate, and were allowed to give, alien, or sell them, at their will, and dispose of the money in pios usus; and, as the reverend prelates were not accountable to any but God and themselves for their conduct, it is not surprising that so much abuse prevailed. 19 In the United States, happily, the clergy have no jurisdiction in cases of this kind. The power to grant administration is vested in certain public officers, known in the several states by different names, such as judge of probate, ordinary, register of wills, and for granting administrations, surrogates, orphan's courts, and other names expressive of their authority. The provisions of the acts of each state point out the persons who are to be appointed, and the order in which they are to be chosen, leaving, in general, a discretion with the appointing officer in the selection of individuals out of classes.20 1548. Administrators are of several kinds each having powers, and being bound by obligations different from each other; it will be requisite, therefore, to examine them separately. Administrators are general, or those who have a right to administer the whole estate of the deceased; or special-that is, those who administer it but partially or but for a limited time.21 "The heirs and next of kin may by agreement among themselves pay the debts and divide the estate without the intervention of an administrator, and other parties cannot interfere or prevent such a disposition. Taylor v. Phillips, 30 Vt. 238. 18 Where property is given by will to the next of kin, it may, owing to circumstances, be construed so as to include husband or wife under this designation. Hovenden, Fr. 288, 289; 1 Mylne & K. Ch. 82. The statutes of distribution usually provide that the husband or wife shall take a certain share; this they take entirely by virtue of the statute. Brigham v. Maynard, 9 Gray, Mass. 81; Cross v. Carey, 25 Ill. 562; Loring v. Craft, 16 Ind. 110; Hilderbrand's Appeal, 39 Penn. St. 133; Coleman v. Brooke, 37 Miss. 71; Robinson v. Tuttle, 37 N. H. 243. 19 Plowd. 277; 2 Sharswood, Blackst. Comm. 495. 20 The order of precedence is usually: First. The husband or wife. Weaver v. Chace, 5 R. I. 356. Second. The next of kin, the degrees being reckoned according to the civil law. The appointing officer in general is guided by the wishes of the distributees in his notice in the different classes. A creditor has no claim to be appointed in Texas. Cain v. Haas, 18 Tex. 616. A married woman cannot be an administrator unless her husband assents. Nickelson v. Ingram, 24 Tex. 630. When personal assets are situated in another state than the domicil of the intestate, the administrator appointed by the state of the domicil has no power over such assets. VOL. I.-2 Z 393 |