This cause, which is pending in this court at its place of session at Richmond, having been fully argued there, but not determined, this day came here the parties by their counsel; and the court, having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said decree is wholly erroneous. It is therefore decreed and ordered, that the said decree be reversed and annulled, and that the appellees, Abel T. Johnson and E. K. Sneed, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid in this court. And this court now proceeding to render such decree as the said circuit court ought to have rendered, it is further decreed and ordered that the bill of the complainants, Abel T. Johnson and E. K. Sneed (appellees here), be dismissed, and that they pay to the defendants their costs by them about their defence in the said circuit court expended: which is ordered to be certified to the said circuit court of Gloucester county. And it is further ordered that this decree be entered on the order book here, and be forthwith certified to the clerk of the court at the place of session where this cause is pending as aforesaid, who shall enter the same on his order book and certify it to the clerk of the circuit court of the county of Gloucester. DECREE REVERSED. 1877. July Term. Shurtz & als. V. Johnson & als. 1877. July Term. Wytheville. WARE V. WARE's adm'r. July 12. Absent, Anderson and Burks, J's. A guardian of an infant husband received in satisfaction of the wife's distributable share in her father's estate, certain bonds due the estate. These bonds the guardian surrendered to the obligors, and took from them other bonds payable to himself as guardian; upon which latter he recovered judgments and sued out executions, which were levied upon the property of the debtors respectively. Forthcoming bonds were given and forfeited, and executions again issued and levied; but no sales were made of the property. All this occurred in the lifetime of the husband, and he died before he became of age. After the death of the husband, the wife filed her bill against the administrator of the husband to have the debts delivered to her, or to have a settlement out of them-HELD: 1. The guardian had the power, as guardian, to reduce into possession for the husband the wife's choses in action; and what was done in this case was such a reduction into possession of these choses in action. 2. The property having been reduced into possession the wife is not entitled to a settlement. This case was heard at Richmond, but was decided at the term of the court at Wytheville. It was a suit in equity in the circuit court of Gloucester county, brought in October, 1872, by Mary E. Ware, the widow of Cincinnatus J. Ware, deceased, and daughter of Henry Hughes, deceased, against the administrator of Cincinnatus J. Ware, to have decreed to her certain judgments which had been recovered by the guardian of her husband, and which were based upon debts trans 1877. July Term. ferred by the representatives of her father to the guardian of C. J. Ware, as a part of the distributive share in her father's estate. There was a decree dismissing the bill; and thereupon Mrs. Ware applied to a judge of this court for an appeal; which was allowed. The Ware's facts are stated in the opinion of Staples, J. J. S. Wise, for the appellant. Wm. B. Taliaferro, for the appellee. STAPLES, J., delivered the opinion of the court. There can be no doubt that the acts done by the guardian of the husband, in this case, if done by the husband himself, would be held to be a reduction into possession of the wife's choses in action. After the intermarriage of Mrs. Ware, the appellant, with Cincinnatus J. Ware, the administrator of her father's estate delivered to the guardian of Cincinnatus J. Ware, certain bonds in payment or satisfaction of Mrs. Ware's distributive share in that estate. These bonds, as is conceded, the guardian surrendered to the obligors respectively, taking in their place others payable to himself as guardian. Upon these he afterwards instituted suits, recovered judgments, sued out executions, which were levied upon the property of the debtors respectively. Forthcoming bonds were given and forfeited, and executions again issued and levied, but no sales were made of the property, in consequence of the stay laws passed in the early part of the war. All this occurred in the lifetime of Cincinnatus J. Ware, and during his minority. He was killed in battle while in the public service and before he attained twenty-one years of age. It is not seriously controverted, that these acts were sufficient to extinguish the entire in Ware V. adm'r. Ware V. Ware's adm'r. 1877. terest of Mrs. Ware in the subject matter of controJuly Term. versy, if it be competent for a guardian of an infant husband to reduce into possession for the husband, the wife's choses in action. The learned counsel for the appellant takes the ground that the guardian has no such power; that it is a marital right personal to the husband, which he alone can exercise, and which he may exercise or not, at his pleasure; and in this case, the husband never having elected to reduce the wife's choses into possession, and not having ratified the acts of the guardian, whatever was done by the latter was without authority, and wholly ineffectual to divest the wife's interest. This point has been elaborated with great force and ingenuity in the printed brief of the counsel for the appellant. And it is to this our attention must be chiefly directed. It is well settled, that, as to the choses in action of the wife, marriage is only a qualified gift to the husband, upon condition that he gets possession during the coverture; for if he die before the wife, without having gained such possession, she, and not his personal representative, will be entitled to them: but it is equally true, and has been so expressly held by this court, that the marital right, though it confers no absolute title to the property while a chose in action, yet attaches to the chose in action-vests an appreciable interest therein-gives the right to make the property of which it is the representative absolutely that of the husband; and this right, vendible and assignable, is the subject of sale or gift to the extent of the husband's interests. When the assignment is without consideration, as in case of a gift, if the husband dies before the chose is reduced into possession, the legal right of the wife of survivorship attaches and defeats the right of the assignee. If the assignment is special 1877. July Term. Ware adm'r. for value, it is considered in many cases a quasi reduction into possession, which defeats the legal right of survivorship, and the assignee is only subject to the wife's equity to a settlement. See Dold's trustee v. Gei- V. ger's adm'r, 2 Gratt. 98-110. In that case, the wife Ware's being entitled to a distributive share in her father's estate, it was agreed by the husband, who was then insolvent, it should be settled upon the wife, and it was accordingly settled to her separate use. Although the husband thus declined to reduce the property into possession, and expressly waived his marital right thereto, this court was unanimously of opinion, that it was liable to the claims of the husband's creditors, and might be subjected to their payment, nothwithstanding the settlement upon the wife. It will thus be seen that the husband has an appreciable interest in the wife's choses in action, which may be the subject of sale, gift, assignment or release, and may be appropriated by his creditors to the payment of their claims. See upon this point Yerby and wife v. Lynch & als., 3 Gratt. 439, 474, 477, 493-4, 567-8. This being so, it is difficult to understand why the chose is not subject to the ordinary rules and incidents applicable to any other estate or property of the ward which may be brought under the control and supervision of the guardian. Although the guardian has no beneficial interest in the estate of his ward, still his authority is coupled with an interest, and is not barely an office. In respect to the real estate, he may make a lease for years, upon which ejectment may be maintained; he may have an action of trespass against a stranger, in his own name, for spoiling the grass; he may have a writ of right of ward, and recover the land and damages, as well as the body of the ward; he VOL. XXVIII-85 |