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Lenderman v. Talley

6 Del. 523 1 Houst. 523 Court Del. Super. Ct. English

Delivered by Houston, J.,

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p. 523
Sarah Lenderman v. Eli B. Talley, Executor of Christopher Lenderman, deceased.

Headnote

Promissory note's made to a married woman and not reduced to possession by the husband, on his death survive to the wife, and not to his executor, if she is then living. And as to the rights of the wife by survivorship, in such cases, there is no distinction between choses in action accruing to the wife before marriage and during her coverture.
This was an amicable action docketed between the parties and submitted to the Court on a case stated.
p. 524
The defendant, Eli B. Talley, was the executor of Christopher Lenderman, deceased, who left to survive him his widow, Sarah Lenderman, the plaintiff. Before his death and during their marriage she was the holder of several promissory notes payable to her in the usual form of such instruments, for the following sums respectively:' One for $50, by Thomas Metcalf, Jr.; one for $145, by Samuel M. Talley; one for $60, by'Samuel M. Day; one for $22, by Jacob Martin, and one for $30 and another for $12, by John Hand; all of which were made and delivered to her in the lifetime of her husband and during her coverture, and were still held by her due and unpaid at the time of his death. After the death1 of the husband, the defendant, under the impression that he was entitled to them,, in virtue of his office as his executor, requested the plaintiff to deliver the notes to him, which she did, and he thereupon proceeded to collect the respective sums due upon them, as the executor of the husband. The question submitted for the decision of the Court was, whether the plaintiff or the defendant was entitled to sue upon said promissory notes and to recover the amounts severally due upon them, on the facts above stated.

delivered the'opinion of the Court.

Whatever doubts may have been at one time entertained in regard to the question presented in this case, it may now be considered as well settled, by recent decisions both in this country and in England, that the plaintiff is entitled to recover. The general principle of the law on this subject is, that choses in action due the wife, and which are not reduced to his possession by the husband during the coverture, on his death survive to the wife, if she is then living; and the fact that the chose in action accrued to the wife during the coverture, constitutes no exception to this general principle.

The question here presented has been maturely considered, and all the Cases bearing upon it have been carefully reviewed in an able opinion of the Supreme Court -of

p. 525
Massachusetts, by Dewey, J., in Hayward v. Hayward, 20 Pick. 517 , in which it was held that a distributive share of an intestate’s personal estate, which accrued to a marriedg woman during her coverture, and the husband died without reducing it to possession, survived to her; and that there is no distinction as to the fights of the wife by survivorship, between choses in action"'which accrue before marriage and such as accrue during her coverture; but in either case, if the husband dies without reducing them to possession, they survive to her. In a case decided since -that time, in England, it was ruled that a promissory note, although negotiable and transferable according to the custom of Merchants, like a bill of exchange, yet it is still a chose in action, and that a promissory note given to a wife in the lifetime of her husband, and not collected by him, on his death survived to her. Gaters v. Madeley, 6 Mees. & Wels. 423. The principle established in these cases has also been recognized and affirmed, and perhaps extended still further in its effect and operation, by a recent decision of the Court of Errors and Appeals in our own State, in which it was decided that a distributive share of the personal estate of an intestate, which accrued to a married woman during the lifetime of her husband, and which he had assigned to one of his creditors in payment of a debt which he owed him, but not under his seal and in the presence of two subscribing witnesses, according to the statutory provision in regard to assignments, so as to enable and authorize the assignee to sue for it in his own name, on the death of the husband before the assignee had collected it, survived to the wife notwithstanding the assignment. The State, for the use of Vickers, v. Robertson & Burton, 5 Harr. 201 .

It is therefore the opinion of the Court that the several promissory notes referred to in the case stated, with the respective sums of money due thereon, survived to the wife on the death of the husband, and that she, and not the executor of the husband, was the only party who could rightfully sue for and recover them. Judgment is accordingly directed to be entered for the plaintiff.

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