Description - Practice Reports in the Supreme Court and Court of Appeals Volume 36 by Nathan Howard
This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1869 Excerpt: ...district, and the plaintiff's counsel there made the point among others, that the plaintiff being owner of tle demand as surviving husband, could recover in his individual capacity, and which appears to have been the only point considered by that court. SUPREME COURT. John Reznor, adm-inistratoT, &c. agt. Caswell Webb, and others. Eighth District General Term, February 12th, 1866. Before Marvin, Grover, Davis and Daniels, Justices. Marvin, J. I think the judgment should be affirmed. I do not think that this action could have been maintained by the plaintiff without taking out letters of administration, on the ground that he was the husband of one of the mortgagees and the survivor of his wife. The debt secured by the mortgage is a chose in action, it was not reduced into the possession of the husband during coverture. It is necessary that an action should be brought to secure the debt. The plaintiff as surviving husband will be entitled to the money when collected, but in what character is he entitled to maintain an action to secure the money? The husband is solely entitled to administration on the estate of his wife. He is to give Bamor agt. Webb. bonds as other persons, but shall be liable as administrator for the debts of his wife only to the extent of the amount received by him. If he does not take out letters he is presumed to have amounts in his hands sufficient to satisfy her debts and shall be liable therefor. If he dies leaving any assets of his wife unadministered they pass into the hands of his personal representatives and they are liable for her debts in preference to his. (2 R. S. 75, 29.) There is nothing in this provision showing that the husband may by action recover the outstanding debts "due to his wife at the time of her d...
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