State ex rel. Hazzard v. Layton — 3 Del. 348

Majority

p. 348

STATE use of HAZZARD and wife vs. CALEB S. LAYTON, Adm’r. of c. t. a. of JOHN WILSON, dec’d.

Headnote

The husband of a person entitled to a distributive share may appeal from the settlement of an administration account; and, being under no disability to sue, this right of appeal is barred by limitation in three years after marriage, although the wife be under the disability of infancy.

Such appeal though in the name of husband and wife, for the wife’s right, is the husband’s suit.

Appeal from the Orphans’ Court of Sussex county; the chancellor sitting alone.

The plaintiff, William Hazzard, in right of his wife Elexine, late Elexine Wilson, on the 18th of May, 1838, filed exceptions to the administration accounts of defendant, passed respectively on the 10th of March, 1837; 3d of June, 1829; 14th of July, 1830; 13th of July, 1833 and 19th of May, 1835. The defendant appeared and pleaded the act of limitation to all except the last account; plaintiffs replied infancy of said Elexine Hazzard, late Wilson; defendant rejoined that the said William Hazzard and Elexine his wife, were married more than three years before the filing the exceptions in this cause,! to wit: on the 9th of January, 1834, and that at the time of the said marriage the said William Hazzard, the husband of said Elexine. was of full age and under no legal disability to file exceptions to saidl accounts. Demurrer and joinder in demurrer. After argument al March term, 1840, demurrer overruled; and, on motion, the exceptions to all the accounts except the last dismissed, on the ground thall more than three years had elapsed before the filing of said exception; to the first four accounts, from the marriage of William Hazzard. he being of full age at the marriage. The court proceeded to heai the exceptions to the last account. Appeal prayed and granted.

The main-question argued was, whether the plaintiffs were barre; by limitation of their right to except to the first four administratioij accounts.

The provision in the act of limitation is, that no exceptions to aij account of an executor, &c., “shall be received or filed in the Cb phans’ Court, after the expiration of three years from the settlemenl of said account; ’provided that this limitation in respect to any persof under disability of infancy, coverture or incompetency of mind the time of the settlement of any such account shall begin to ru| from the ceasing of such disability, and not from the time of such sel tlement.”

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Eidgely, for defendant,

on this question contended that the right of excepting to these accounts given by the constitution to “persons concerned,” (Art. 6, sec. 21,) was the right of William Hazzard the husband of Elexine Wilson; that this right accrued on the day of his marriage; and he being under no legal disability to except or sue, his right was barred by limitation: that the saving of the statute was of the rights of persons under disability, and can never apply to the husband who is under no disability. (Shankland’s case, Errors and Appeals, Oct. 1823.) He argued that there was no reason why longer time should be given the husband to sue for his wife’s right of action than for his own; or longer time than any other person not under a disability to sue:, that the saving of the statute was to protect the helpless, and not to extend the rights of those who had full power to protect themselves; and that the wife’s disability could never enure to the, benefit of the husband, inasmuch as it could never prejudice him. (Law Lib. 2; Blans. Lim.) Whenever the husband’s right to sue accrues the act begins to run, unless he is laboring under a personal disability. (4 T. Rep. 519.)

Houston and Brinckloe, for plaintiff,

argued that the husband was not a “person concerned” in these exceptions, otherwise than in respect of the wife’s right of action, which was expressly saved by the statute from being barred: that this could not be said to be a proceeding by him to reduce his wife’s chose in action into possession, as it would be as much a chose in action, and her right, after the exceptions were determined as before; a right which would survive to her on her husband’s death: that this was not a suit at all in the meaning of the act barring suits; it was only a proceeding to correct accounts, and in which nothing was or could be recovered. They denied the application of Shankland’s case, which was decided in respect to the disability of coverture, and in a case where the cause of action accrued after the marriage. In suits by husband and wife for khe wife’s right, the union of interests is peculiar to this relation; they [are not interested as joint parties, for then either could sue or release. Ilf action be by husband and wife in right of the wife and she die, the ■suit abates; not so if the husband die. Two actions, one by husband knd wife, the other by husband alone, cannot be consolidated. The husband joins in the action not because he has a joint interest, but Because the wife cannot sue alone: the suit is the suit of tlje wife. [2 Leigh JV. P. 1116; 2 Sound. PI. & Ev. 716; 1 Chit. PI. 64; 5 Com. ]ig. PI. 2, a. 1; 1 ib. Abat. d. b.) In torts the non-joinder of a joint

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owner can only be pleaded in abatement, but if husband bring trover in his own name for his wife’s goods, he will be nonsuited. (1 Ch. PI. 64-5.) In actions ex contractu» the non-joinder of defendants must be pleaded in abatement; but if the husband be sued on the promise of the wife before marriage, he may demur, or move in arrest of judgment, or for a nonsuit. If tho wife be sued alone, she can plead the matter only in abatement. (1 Ch. PI. 44.) In a suit for the right of the wife, the law regards the interest as peculiarly that of the wife; the husband’s name is used not on account of any joint interest, but as giving the wife power to assert her own rights; then how can any replication of the husband’s ability to sue be an answer to a plea of her disability. No plea is good against the suit of husband and wife for the wife’s right, that does not apply especially to that right; nothing can bo pleaded as against the husband except to deny the marriage. A release of all demands by the husband would not be a good plea, unless it expressly appear in the release that it is to have reference to such a claim. The debt of the husband cannot be set off against such claim. (1 Leigh JV. P. 156.) The statute is a disqualifying act and ought to be taken strictly. (2 Law Lib. 12; 2 Bos. & Pul. 542; 1 Lord Rcty. 280; 13 East 440; 2 Leigh JST. P. 1248.)

Rtdgely, in reply,

contended that acts of limitation being statutes of repose were, from principles of policy, to be construed favorably i to the bar. (Elans. Lim. 1, 2, &c., Wilk. Lim.. 12.) They do not I bar rights, but take away remedies; they do not look to the rights of I any party, but to the power of asserting the remedy. In respect to [ any one under the disability the statute is no bar, but as to any one I having the power to sue it is a bar. The plaintiff in this case had I the power for the full time allowed by the statute.

Chief Justice Booth delivered the opinion of a majority of the| court, Judge Harrington dissenting.

This is an appeal from the Orphans’ Courtl for Sussex county. From the bill of exceptions taken under the! act of assembly, and from the documents accompanying it, the case appears to be this:—

John Wilson, late of the said county, deceased, being the owned of certain real and personal estate, made his last will and testament! in writing, bearing date the 29th day of November, A. D. 1825; bj which he ordered, that part of his real estate should be sold, anc devised some houses and lots, being the residue thereof, to his sonl David M. Wilson, in fee; and directed, that whatever the real estatcl

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devised to David was valued at, should be deducted from his share of the testator’s estate. After taking out several legacies bequeathed to his daughter, Elexine, now the wife of William Hazzard, the testator directed his estate to be equally divided among his sons, David M. Wilson and James Wilson, and his daughter, the said Elexine, when they should arrive at full age. The testator soon after, died. The will was proved the 29th of December, 1825, and letters of administration, with the will annexed, were granted to the respondent, Caleb S. Layton, on the 11th of January, 1820; who passed five several accounts of his administration- before the register of Sussex county: The first on the 10th of March, 1S27; the second on the Sd of June, 1829; the third on the 14th of July, 1830; the fourth on the 13th of July, 1833, and the fifth on the 19th of May, 1835. The respondent, to carry into efiect the said will, was obliged to resort to the legislature for a private act, to empower him to have a valuation made of the real estate devised to David; and by virtue of that act, it was valued at one thousand dollars.

On the 9th of January, 1834, the said William Hazzard and Elex-ine Wilson were married; and on the 18th of May, 1838, exceptions by way of appeal, were taken to the Orphans’ Court of Sussex county, by the said William Hazzard, in right of his wife, from the settlement of said accounts before the register of the said county. One exception to the last account was, that interest was not charged upon one thousand dollars, the valuation of the real estate devised to David; upon the ground, that the amount of both principal and interest ought to be deducted out of his share of the testator’s estate; whereas, [the administrator, c. t. a. had deducted only the valuation money, to [wit: one thousand dollars. At the time of the marriage of the appellants, and at the time of taking the said appeal to the Orphans’ [Court, the said Elexine Hazzard was an infant under the age of [twenty-one years. The respondent pleaded the act of limitation to Ithe exceptions taken to all the accounts, except to that passed the ■19th o^ May, 1835. To this plea, the appellants replied the infancy If Elexine Hazzard, late Elexine Wilson. The respondent rejoined, that the said William Hazzard and Elexine, his wife, were married Inore than three years before the filing of the exceptions in the cause, |o wit, the 9th of January, 1834; and that at the time of the said Inarriage the said William Hazzard, the husband of the said Elexine, Ivas of full age, and under no legal disability to file exceptions in this lause. To this rejoinder there was a demurrer, and joinder in de-

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mnrrer. The Orphans’ Court overruled the demurrer, upon the ground that the exceptions being taken by William Hazzard, in right of the said Elexine, his wife, were barred by the act of limitation; more than three years having elapsed before filing the exceptions to the first four accounts, from the time of his marriage with the said Elexine, and he being of full age and under no legal disability.

The Orphans’ Court disallowed the before-mentioned exception to the last account, considering upon the construction of the will of the testator, that only the value of the real estate devised to David M. Wilson, to wit, only the sum of one thousand dollars, without interest, should be deducted from, his share of the testator’s estate.

From the decree of the Orphans’ Court upon these two points, the present appeal is taken. Upon the last point, it plainly appears from the will of the testator, that the devise to his son David, was to take effect immediately upon the testator’s death; and that the value of the real estate so devised, was to be deducted from the share of David. There is not the slightest ground for supposing the testator intended that the devisee should be accountable for interest upon the valuation money, or for the rents and profits of the real estate. The administrator, with the will annexed, had no concern with the real estate devised to David, except to ascertain its value; for which purpose he was obliged to resort to the legislature for a special act to authorize a valuation, in order to make the deduction from David’s share of the estate. The delay, if there were any, in obtaining the act of assembly, cannot make the administrator accountable for interest upon the valuation money, nor the devisee for the rents andl profits of the real estate.

The material question in the cause is upon the first point: whetherl the exceptions taken by way of appeal to the first four accounts settled before the register of Sussex county, are barred by the lit! section»of the act of limitation, (Digest, 398,) which declares tha1 “no exceptions to an account of an executor, administrator or guardian, settled by the register for the county, shall be received or filei in the Orphans’ Court after the expiration of three years from th< settlement of said account; provided, that this limitation in respect t< any person under disability of infancy, coverture or incompetency o: mind, at the time of the settlement of any such account, shall begii to run from the ceasing of such disability, and not from the time o: such settlement.”

It is contended for the appellants, that as the interest of Williar

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Hazzard is entirely in right of his wife, who was an infant at the time of the settlement of the accounts before the register, and so continued at the time of her marriage, and at the time of taking the exceptions, the case comes within the proviso of the act of limitation: that the exceptions are her suit: that she is virtually the plaintiff: and as she cannot sue in her own name because of the disability of cover-ture, that the husband, therefore, for the protection of her interest, sues for her, in his and her name.

The exceptions taken in this case by /way of appeal, were taken by the husband, and not by the wife; for by marriage, husband and wife are but one person in law; she is deprived of all separate legal existence, which during coverture is merged in that of the husband; she has no will, and without his authority can do no act. The exceptions are his suit, and not hers; brought by him for the purpose of enforcing his marital rights, for his own sole and exclusive use and benefit; and to defeat and destroy the only rights which the wife can have, namely: her right in case she survives her husband. All the rights of the wife by marriage pass to the husband. Her personal property in possession becomes his absolutely; her choses in action [are under his control; and of her real property he is entitled to the [usufruct. In the proceedings instituted by him to recover her choses [accruing before coverture, he joins the wife, because his right or title Is derived through her; and not because she has any interest during «overture, in his action or remedy. And it is for the very reason of Ihe suspension of her rights during coverture, and her inability to institute any proceedings for their recovery, that the act of limitation fcrotects her by providing that in respect to her, the limitation shall ■begin to run only from the ceasing of her disability; thus allowing her Ihree years from that time to pursue her remedy for the recovery of Rer choses, where the husband has been unable, or has neglected to reduce them into possession during the coverture. The argument, there-■ore, which relies upon the pr’oviso in the act of limitation to protect the ■usband, and to enable him to obtain his wife’s choses, defeats her ■ghts in case of her survivorship, and destroys the very object and Mention of the proviso, which are to save them.

■ But it is said, that the infancy of the wife protects the suit brought ■y the husband in his and her name, because from the very words S' the proviso, an infant is not merely excepted out of the act of limi-Htion, but excluded from it; that the act does not begin to run until He disability ceases; that nothing can remove the disability of infan

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cy but efflux of time; and therefore, that the exceptions in this case cannot be barred until the expiration of three years from the time of Elexine Hazzard’s attaining full age.

The distinction between a saving or an exception out of an act, and an exclusion from it, seems to be a distinctión of words, without any difference in substance. If a person is saved or excepted oat of an act, he is certainly excluded from its operation. All acts of limitation are intended to protect those, and those only who cannot protect themselves; and either by a saving or excepting clause, or by a proviso, or by a positive enactment, preserve to those persons laboring under the usual disabilities, the right to prosecute their suits after the ceasing of such disabilities. Then, and not till then, do the acts of limitation begin to run against them, although they bar all other persons. The infancy of the wife, with the supervening disability of coverture, saves her until both disabilities cease; but cannot protect the husband in prosecuting his suit for recovering her dioses for his own benefit, any more than the disability of coverture alone without that of infancy, would protect such suit. The argument drawn from the suit of an infant by guardian, or next friend, does not apply to the case. There is no analogy between such a suit, and one brought by the husband, in which he joins the wife, for recovering her dioses; nor, is there any similarity between the guardian and the husband. In] the former case, the suit is in the name of the infant alone; the guardian or next friend is no party; has no interest in the property suedl for, which when recovered, belongs exclusively to the infant. Noi so, in r-espect to the suit brought by the husband, in which he join; the wife, to recover her dioses. There what is obtained by the re suit of the suit, belongs absolutely and exclusively to the husband, and forever extinguishes the right of the wife.

When it is said that nothing can remove the disability of infanejj hut efflux of time; nothing but the infant’s attaining majority; tin remark is inacurate; for the disability is removed by death. There! fore, if the administrator of a deceased infant allows more thai| three years to elapse, after the grant of administration, and beforj taking exceptions to an account in which the infant in his lifetime was interested, although at the time of taking the exceptions, the ii fant, had he lived, would still be under twenty-one years of age, th| act of limitation would surely bar the administrator; because he under no disability. For the same reason, the husband of an infaij is barred, if being under no disability, he allows more than thr

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rears to elapse from the time of marriage before taking exceptions; although when the exceptions are taken, the wife is still in her minority.

These exceptions then are the suit of the husband, instituted by him for his exclusive benefit. As his right of action accrued at the time of his marriage, when, in the language of the constitution, he became a party concerned in the settlement of the accounts of the respondent, and as at the time of his marriage, he was under no disability, the act of limitation began to run against him from that period; because there was then a cause of action; a person competent to sue; a person to be sued; and a jurisdiction in which the suit might be maintained. Having allowed more than three years to elapse after his marriage, and before taking his exceptions, he is barred; and cannot shelter himself under the infancy or coverture of his wife.

I I-t was contended, in the course of the argument for the appellants, that in suits brought in the name of the husband and wife, for the wife’s choses, they are to be regarded as separate and distinct parties; 'for if sho dies pending the' suit, it abates; and if the husband [dies, it survives to the wife. But admitting them to be regarded as ¡separate and distinct parties, this view of the case does not aid the [appellants. The respondent pleads the act of limitation. The repli[cation of the appellants replies the infancy of Elexine Hazzard, the Iwife, as an answer to the plea. The rejoinder alledges that William ■Hazzard, the husband, was of full age; to which there is a demurrer isn the part of the appellants. The rejoinder is certainly no answer l-o the replication; and it .is equally certain that the replication is no Imswer to the plea. The demurrer extends back through the whole jecord, and attaches ultimately upon the first substantial defect in Ihe pleadings; and judgment must be given against the appellants, in Ivhose replication the first substantial defect has occurred. For al-lhough the rejoinder is bad, it is sufficient for a bad replication. The Season why the replication is bad, is, because it does not contain a Sufficient answer to the plea, as respects the parties answering; for the ■lea alledges that the appellants are barred by the act of limitation, ■nd the replication replies the infancy only of one party, and gives ■0 answer whatever to the other party. It is now well settled, that I replication to a plea of the statute of limitation must avoid the Hffect of the statute as to all the plaintiffs. The disability of one cant be imparted to the others, and will not prevent the bar. All will

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be barred, unless all be under a disability. (Perry vs. Jackson, 4 Term Rep. 516; Marsteller vs. M‘Lean, 7 Cranch 156 .)

This case falls directly within the principle of Shankland’s case, decided many years ago by the Court of Errors and Appeals of this State. There the husband sued in right of his wife, joining her name in the suit, to recover her chóses; and as the wife was within the saving clause of the former act of limitation of this State, (2 Del. Latos 890, sec. 2,) it was contended that he was protected, because she was under the disability of coverture; and the point decided by the court was, that the saving clause of the statute could not be extended to the husband, because he was under no disability.

The case of Hulm vs. Heylock, Cro. Car. 200, it is apprehended is in point. By the Slat. 4 Henry 7, chap. 24, called the statute of fines, all persons and their heirs, other than parties to the fine, having any right or title to lands at the time of the fine engrossed; and all other persons to whom a right or title remains, descends or comes, after the said fine engrossed and proclamations made, by force of any gift I in tail, or by any other cause or matter had or made before the said fine levied, are forever barred; unless in the former case, they pursue their right or title by way of action or lawful entry within five I years next after proclamations made; and in the latter case, within I five years next after such right or title accrued, descended or camel to them; excepting femes covert and persons within the age of twen-l ty-one years, in prison, out of the realm, or not of whole mind at thel time of the fine levied, and not being parties to such fine. Ail such! persons who labor under any of these disabilities, either at the timel of levying the fine, or when a right to lands whereof a fine has been! levied first accrues to them, are allowed five years from the removalf of their disabilities, to make their claim by action or lawful entry! and unless they do so within the five years, they and their heirs ar^ forever barred.

In Hulm vs. Heylock, the case was this: J. M. being seized of landl devised it in fee to J. G., an infant of the age of three years. Thq son and heir of J. M. entered and levied a fine with proclamations in the lifetime of J. G., being within age, who afterwards died beind within age, the wife of Keylock being his sister and heir. It wal decided that the fine and non-claim barred the husband, (who suffer! ed the five years to pass,) and all claiming under him, and the wifi herself during the coverture; but that the vrife should have new fivl years after the death of the husband.

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The same principle is decided in Doe on the demise of Wright vs. Plumptree, 3 Barn. & Ald. 474. There the defendant levied a fine with proclamations. The husband who was the lessor of the plaintiff, and claimed in right of his* wife, did not enter within five years after his title accrued; and it was decided by Best, justice, who tried the cause, that although the wife, if she survived her husband, would be entitled to enter within five vears after his death; yet that her husband, not having made an entry or brought his action within the time prescribed, was barred by the fine. It was contended, on a motion for a new trial, that the husband, who claimed in right of his wife, might enter at any time during the coverture: that it was clear, an infant by his guardian might avoid a fine by an entry at any time during his infancy; and that by parity of reason, a husband claiming in right of his wife, might avoid the fine during the coverture; for the wife’s interest, it was said, is kept alive during the whole period of the coverture. But the court were clearly of opinion, that the husband not having entered within the five years after his right accrued, was barred by the fine; and the case of Hulm vs. Heylock was referred to as deciding the point.

It is said to be the policy of all statutes of limitation to prevent suits, and thus to conduce to the peace of society; but that the decision of the court in this present case, defeats that policy, by suspend-ling the right to take exceptions to these accounts, until the disability [of the coverture ceases. But this objection seems to be without [foundation. The act, by its verj. terms, gives the right to the wife [to take exceptions after her disability ceases; and therefore, until then, suspends her right. And it need only be remarked, that to permit the husband, in case he survives her, to take exceptions as the ad-Ininistrator of his wife, after his own suit instituted during the cover-lure, in her right, has been barred, is in accordance with that well Known maxim of law, “Quando dua jura in una persona concurrunt, Iequum est, ac si essent in diversis.” Therefore, where a man acquires a new right, he is allowed to pursue his remedy under it, al-lhough he neglected to take his remedy under the right which first Iccrued.

I The judgment of this court is, that the decree of the Orphans’ ■ourt be affirmed.

The principal question made in the argu-ent of this appeal was, whether the plaintiffs were hatred by lapse

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of time of their right to except to the defendant’s administration accounts. The first four accounts were settled more than three years before the filing these exceptions; and the interest of William Haz-zard accrued moro than three years before that time. But this interest is entirely in right of his wife; who, at the time of settling the accounts, and also of her marriage with William Hazzard, and at the date of the exceptions, was an infant under the ago of twenty-one years.

The plaintiff relies on this as bringing the case within the following proviso or exception to the act of limitation. “Sec. 11. No exceptions to an account of an executor, administrator or guardian,settled by the register for the county, shall be received or filed in the Orphans’ Court after the expiration of three years from the settlement of said account; 'provided, that this limitation in respect to any person under disability of infancy, coverture or incompetency of mind at the time of the settlement of any such account, shall begin to run from the ceasing of such disability, and not from the time of such settlement.”

It would seem from the plain application of the words of this proviso, that the limitation fixed by this act could not in any manner affect the rights of Mrs. Hazzard, who was under the disability ofl infancy at the settlement of the accounts, and up to the filing exceptions. But it has been strongly argued, that her husband could notl now have the benefit of this proviso, inasmuch as he was under noj disability, and has suffered three years to elapse, since his right tol except accrued. It has been, argued that the bar of the statute wasl extremely beneficial to the public, and the exceptions out of it werel designed to protect only those actually under a disability to enforce their claims.

It must be apparent that unless Mrs. Hazzard’s right of excepting to- these accounts is identical with her husband’s, and her right full} sunk in his, the rejoinder in the pleadings that he was of full age anc under no disability, is no answer to the replication of her infancy! If that establishes a disability which prevents the statute of limitatioi! from having any application to her case, then the competency of ability of any other person to sue, even in her right, cannot make thf act apply to her, unless this goes to the extent of removing her disl ability. For until that disability is removed, there is no law of litnif tation as to her right. She is not merely excepted out of the act, bt excluded from it.

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Now-in the first place, the right of the husband to the chose in action of the wife, is not identical with the wife’s right. Marriage is a conditional gift to the husband of such property of the wife; but if the condition, (viz: the reducing it to possession,) be not performed, it is no gift at all. (32 Law. Lib. 129.) The husband has no right per se; none that he can enforce except by and-through her, until her property is reduced into, his possession. If he sues, it must be with her name; if he dies, the right continues in her; and does not go to his representatives. Even the obtaining judgment does not change the right. A mere intention to reduce the wife’s choses in action into possession will be insufficient. The acts to effect that purpose must be such as to change tjie property in them; or, in other words, must be something to' divest the wife’s right, and to make that of the husband absolute. (Roper on Hus. & wife 208; 32 Law Lib. 132.) It is true, that marriage furnishes a means of enforcing the wife’s rights notwithstanding her infancy, but this does not remove her disability any more than the appointment of a guardian or the right [(always existing) to sue by next friend. In either case the husband, guardian, or next friend may sue for the infant, and may bind her by their acts; but the legal disability of the infant still continues. She can neither compel them to sue nor sue for herself; she can [neither exercise any judgment, nor be supposed to have any judgment in the matter. It is not because .there is no means of suing for Ian infant that she is excepted out of the acts of limitation; though ¡suit may possibly be brought by another in her behalf, her own disability is protected by the law; and all her rights are saved from the operation of the statute until the disability is removed. Nothing can remove the disability of infancy but efflux of time; nothing but the infant’s attaining majority. And if the right of excepting to these recounts be expressly saved, it can surely be no objection that in exercising this right a feme covert must needs join with her the name of ler husband. It would be idle to admit the right and deny the means B>f enforcing it. The argument for the defendant takes for granted, ■rst, that this exception is a suit by the husband for his right; whereas, ■e has no right to the thing sued for until it is recovered, and then implies, that because he might have excepted sooner, not only he but ■is wife must, at least during his life, be barred by the act of limita-■on. But that act only respects her right and protects her disability, ft, was indeed argued that the husband could in no case be benefit-by this disability of the wife, inasmuch as it could not prejudice

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him. As well might it be said, that the wife should not be prejudiced by the neglect of the husband to except, as it was not in her power to avail herself of his ability. It comes round to the question, is the wife barred of her right to except? does the act of limitation apply to her? If it does not, then the neglect of no other can prejudice her or deprive her of a right secured to her by the law. And if this right exists in the wife, it is no reason for depriving her of it that the husband, through whom only she can exercise it, may be incidentally benefited by it.

But is the first assumption of the defendant’s counsel in this case, and upon which his whole argument is founded, correct? Is this a suit at all? Is it a suit to recover any thing? It is a proceeding to correct accounts, but thereby nothing is recovered. The defendant has filed certain administration accounts. If right, they furnish the means of a future suit to recover something; if wrong, their cor-1 rection on exceptions filed, approaches no nearer to a recovery than if they had been originally filed correctly. In these exceptions nothing is demanded, nothing recovered; the wife’s chose is her chose I yet, not the husband’s; and it seems to be a stretch to consider thisl a suit by the husband to reduce it into his exclusve possession,^[2]

But would a suit by husband and wife, founded on the decree onl these exceptions and designed to recover the balance on the corrected accounts; would even this be a suit for his right? For thel question is not so much whose suit it is, as for whose right it is: fori the statute protects the right of action. Is this then a suit for the| husband’s right? How? Suppose he dies pending suit, it survives tc the wife, and does not go to the husband’s administrator. Suppose judgment is recovered, whose judgment is it? Still the wife’s; and not the husband’s. If he die even after judgment but before execul tion, the judgment still belongs to the wife; and the reason given isl that the husband has not yet reduced it into possession, nor showi any determination to reduce it into his possession: has not yet per-l formed that condition upon which alone by virtue of the marriage he has any right to claim his wife’s chose in action. Non constal even yet that the husband ever means to reduce his wife’s chose intq his possession and complete his right to it. Much less can we saj in this case that Mr. Hazzard, by uniting with his wife in excepting

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to administration accounts preparatory to a suit, is acting in his own right; and that he alone shall be considered and not his wife, in applying the act of limitations.

If this be the action of the husband and for his right, as it is al-ledged to be by the marriage, then the statute would protect his disability of infancy, though suing for the wife’s chose in action. For the act says, that if any person entitled to the action be under the disability of infancy, &c., this act shall be no bar to such action during the continuance of such disability, nor for .three years after. Suppose an infant feme entitled to a legacy takes a husband who is an infant. The legacy is his according to this argument, and the action his. Then he is protected by the statute during his infancy, and for three years thereafter. He dies after the three years, without reducing the legacy into possession. The wife sues, and it then appears that her right of action has been all the time protected, first by per infancy and afterwards by the coverture. This construction piakes the statute to protect the disabilities both of husband and wife, [which is absurd. The statute means as it says, to protect the person who is entitled to the action or right of action, and the true test Is how would the right of action survive in case of the death of either. Ilertainly to the wife if the husband die; but if she die the husband tan take them only as her administrator.

I Another test equally conclusive is found in the consequence of not loining the wife or husband in a suit for her chose in action. If the Ivife sue alone, and the non-joinder of the husband be not pleaded in abatement, she will recover; for his non-joinder is of so little conse-luence that it cannot be objected to otherwise than by plea in abatement: but if the husband sue alone he will be nonsuited, and the non-minder of the wife will be fatal in every stage of the proceedings; in ■rrest of judgment, or on a writ of error.

I This in my opinion does not contradict the decision of the High lourt of Errors and Appeals, in the case of Shankland.^[2] That

(a) (a) The State use of James Hazzard and Ann his wife et al vs. William Shankland. High Court of Errors and Appeals, June term, 1821. ;rit of error to the Common Pleas. x This was a suit on a testamentary bond, dated the 27th of August, 1804, [• the use of the legatees or some of them; and judgment was recovered :rein. Afterwards a writ of sci. fa. was sued out on this judgment to >ril term, 1815, for the use of these plaintiffs; and the defendant Shank- *362 land, who was a surety, pleaded inter alia the act of limitation, and plaintiff replied that “said Ann took to husband the said James Hazzard, and to him was married and under coverture, before the date of the testamentary bond, and that the coverture still continued. To this replication defendant demurred generally; and on this demurrer the court below gave judgment for the defendant. The exceptions set out this for error, asserting that the replication and', the matters therein contained were sufficient in law for the plaintiff to maintain said action against said defendant, the act of limitation mentioned in the plea saving the right of tho said Ann to commence an action upon the] said testamentary bond, after a breach thereof, at any time during her cover-! ture, and within three years after her discovertare. Ridgely, chancellor, in delivering the judgment of the Court of Appeal; (at October term, 1823,) stated that the only question was, “whether the savj ing of the right of a feme covert in the second section of the act to compel ex ecutors to give security, &c., applies to the husband and wife during their lives! upon a suit brought by them on a testamentary bond made after marriage The words of that saving clause are “provided also, that all actions upoil such testamentary bonds hereafter executed shall be commenced within sis years after the passing the said bonds, and not after, saving the right of an; person or persons who shall be within age of twenty-one years, feme cover! non compos mentis, or imprisoned, of bringing such action or actions withi three years after their coming to or being of full age, discovert, of soun memory or at large.” ( 2 Del. Laws 890 .) According to the meaning of this act the right of the husband and wil to bring a suit after six years from the passing the bond is not saved, fcl he is not under any of the disabilities mentioned in the act, and his nat or interest is not referred to nor contemplated. The saving is to bring suit within three years after a disability is removed, but where there is r| disability there is no saving. The act was clearly designed to save t)| rights of married women, and to keep their rights alive until they becari free and able to act for themselves, and not to protect rights whi< might be exercised at the pleasure of the person or persons having sui rights. Tt had no view to the interest of the husband, and there was no cessity that it should, for he could bring a suit at any time; but the w| though she has a right has no remedy of herself, and therefore, the law ve providently interposes to save her against the omissions or neglect of *363 lusband. But there can fee no reason for the same caution in regard to the lusband, even in those cases where the right is derived from the wife, and There he must join her name with his in prosecuting such right. The Chancellor then referred to Cro. Car. 200, Hulm, vs. Heylock; 4 Term Rep. 116, Perry vs. Jackson; Litt., sec. 403. If husband and wife have a Ight of entry into lands which another hath in fee or fee tail, and such ten-nt die seised, the entry of the husband upon the heir, who is in by decent, is taken away. But if the husband die, the wife may enter upon the sue who is in by descent; for the laches of the husband shall not prejudice le wife or her heirs. (Co. Litt. 246, a.) If an action be against an at-Irney and others who have no privilege, he shall have no privilege. (1 nom. Dig. 6; Abatement, D. 6.) So if it be against an attorney and his Efe.

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case differs from this in these important particulars. 1st. The decision was made upon a limilation law essentially differing in terms from the present act. 2d. It was in reference to the disability of coverture; and 3d. Being a suit for a right of the wife which accru

p. 363

ed after the marriage, it was not merely in form, but in substance, a suit for a cause of action belonging to the husband. He might have sued for it in his own name, without joining the wife with him.

We have seen that, by the proviso to the existing act of limitation, it begins to run in respect to any person under disability of infancy, coverture, &c., only “from the ceasing of such disability:” the old act of 1787 imposes a general limitation, saving the right of any person within the age of twenty-one years, feme covert, &c., of bringing suit within three years after their coming to or being of full age, discoverture, &e. Now the case of Hazzard and wife against Shank-land was (in effect) a suit upon a testamentary bond for a legacy, to which the defendant (a surety) pleaded the act of limitation, and the .plaintiffs relying upon this saving, replied coverture before the date •of the bond, and that the coverture still continued. The court held that the husband Was not wfithin the saving; and indeed they might have ]laeld that the toife was not, at that time; for the act of 1787 only aves to her the right of bringing suit after discoverture, which of ourse could never enure to the benefit of the husband, for it could jiot be enjoyed during the coverture. It is true that the chancellor n delivering the opinion of the court, argued that there was no ne-essity of extending this saving clause to the husband, because he as under no disability to sue, but the case is evidently confined to be particular disability of coverture, and it appears from the subse-uent case' of Young vs. Jacobs, that the court not only did not con-:ider the disability of infancy, but that the chancellor himself doubted Ivhether the same law would apply to it. If a doubt could arise un.er the saving in -the act of 1787, how much stronger is the present

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act, which is essentially different in the saving clause, both as to infancy and coverture.

Brincldoe and Houston, for appellants.

Ridgely, for respondent.

It seems to me, therefore, on this view of the case, that the plaintiffs were not barred by the act of limitation of the right of excepting to any of the defendant’s administration accounts, and that the decree of the chancellor dismissing the exceptions to the first four accounts was erroneous.

On the other point, I am for affirming the chancellor’s decree.

Decree affirmed.

Footnotes

(a) (a) See the case of Robinson vs. Robinson’s adm'r., post, June term 1842.

Cases cited

Marsteller v. M'Clean 7 Cranch 156 SCOTUS 1812-03-13 p. 356