Day v. Messick — 6 Del. 328

Majority

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John R. Day and Wife v. John P. Messick, Administrator of Ritty A. Messick, deceased.

Headnote

A husband is not liable, after the death of his wife, for debts contracted by her befor'e their marriage. Neither is he liable as her administrator for such debts, except to the extent of the choses in action due her at her death.

The facts in this case were returned and submitted on a special report of referees on a rule of reference, for the opinion and judgment of the Court, by the agreement of the parties.

. The report of the referees was as follows: that a certain Elizabeth Waller, since deceased, by deed of bargain and sale, bearing date the 10th day of April, 1838, conveyed to Henrietta Waller and Sally Ann Bussell, a tract of land in fee simple, reserving to herself a life estate therein, and that after the death of Elizabeth Waller, Bitty Ann Waller went into possession of the land, and received the rents and profits of it, until the 23d day of September, 1848, when it was appraised in the Court of Chancery, and accepted by her, on proceedings in partition instituted for that purpose, and afterwards married John P. Messick, and died without ever having accounted with or paid the said Sally Ann Bussell any part of the rents and profits of the land, up to the time of the appraisement and accept

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anee of it in the Court of Chancery, as above mentioned. That letters of administration had been duly granted on the estate of Bitty Ann Messick, late Bitty Ann Waller, to her husband, John P. Messick, and that Sally Ann Bus-sell is now the wife of John B. Day, and this action was instituted to recover her share of the rents and profits of the land, up to the period of the appraisement and acceptance in the Court of Chancery, no action before ever having been brought for that purpose, the right of the plaintiffs to sue for the same having been saved by her infancy, in the meanwhile, and her marriage within three years. That if, upon the facts above stated, the Court should he of opinion that John P. Messick, administrator of Bitty Ann Messick, deceased, was liable to pay to the plaintiffs the said Sally Ann’s share of the said rents and profits, then the referees found him indebted to the plaintiffs in the sum of $137.12; otherwise, they reported no cause of action.

announced the opinion of the Court: In this case judgment must be entered for the defendant on the special report returned by the referees.

The law in relation to husband and wife renders the husband liable during coverture for all the debts of the wife contracted before their marriage, without any reference to the property or estate which he may have acquired by her; but this liability exists and continues only during the lifetime of the wife, unless the nature of the debt is changed by the recovery of a judgment upon it against the husband during her life, and if she dies before this is done, his liability as her husband, which he has now ceased to be, for her debts contracted prior to the marriage, is entirely discharged, notwithstanding he may have acquired by the marriage, property in her right, far beyond the amount of her indebtedness at that time. For as the law makes Urn liable for all her debts during their coverture, without regord to her means before the marriage, so the law, by way of equivalent and upon a principle of compensatory justice,

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relieves him of that liability as her husband on her decease, without relation, as we have before said, to any fortune,. however great, which he may have obtained by her.

But in this case the action is not against the defendant as the husband, but as the administrator of his deceased wife. This, however, does not materially affect or alter the principle before referred to. For although the husband, on the death of the wife, is entitled to and may take out letters of administration on her i estate, he is not in general liable as such for her debts contracted previous to the marriage. He is only liable, even in this capacity, to the extent of such choses in action, if any, as may have been due her, and which were not reduced to possession by him as her husband, before her death, and which he must now resort to an administration on her estate, in order to sue for and recover them. But even this limited liability, we apprehend, can only be enforced in chancery, and has no existence at common law. 2 Kent’s Com. 135; 2 Bright’s Husb. and Wife, 2. This, at all events, is the measure and extent of his liability even as her administrator; and it should therefore appear, if we were disposed to recognize and adopt the principle as a rule of action for this Court in this case, that there were such choses in action due her, and payable to the defendant as her administrator, before any obligation could be imposed on him as such to pay this debt after her decease. And this must be so, for the obvious reason, that there must be assets applicable to the debt before the administrator can be made liable for it, and in no other way can there be any assets coming to his hands as her administrator, since all her personal property and effects reduced to possession by him before her death became his absolutely, and are not now in his hands as her administrator. But the report of the referees in this case says nothing about any choses in action due the wife at the time of her. death, and we must of course presume that there were none. Judgment must therefore be entered for the defendant.