#### EDMUND L. DOZIER, Admr. de bonis non of ISAAC DOZIER, *v.*ISAAC L. SANDERLIN Exr. of WILLIS SANDERLIN.

If an administrator marries the next of kin of his intestate, and has assets, and upon the death of his wife, administers upon her estate, her distributive share becomes his property, the claim being by the mere operation of law, satisfied and extinguished. And, in such case, *it seems*that the wife’s share would become the property of the husband, without an administration on her estate.

Where an intestate is indebted to the wife of his administrator, and the latter has assets, the debt is satisfied by the mere operation of law, and does not survive to the wife.

Assumpsit brought by the administrator *de bonis non*of Isaac Dozier, against the executor of his former administrator. The jury, upon the issue submitted to them, found a verdict in favour of the plaintiff, for the sum of two thousand nine hundred and sixty-nine dollars and forty cents, the amount of assets which had come to the hands of the defendant’s testator, subject to certain deductions, if the Court, upon a case agreed, should think the defendant’s testator entitled thereto. The case stated, that Isaac Dozier died intestate, and Willis Sanderlin, the defendant’s testator, administered upon his estate, and assets to the amount above mentioned, came to his hands. Willis Sanderlin married Chloe, a daughter of Isaac Dozier. Chloe, after surviving her father, died, and her husband administered upon her estate. Willis Sanderlin then married Patsey Dozier, to whom Isaac Dozier had been guardian, and to whom at his death, he was indebted as guardian, in the sum of six hundred and ninety-seven dollars and seventy-six cents. Willis Sanderlin lived about two years after his marriage with Patsey Dozier, during all which time he had in his hands the amount of assets above stated, of the estate of Isaac Dozier. The only evidence of his retaining, or reducing into possession the sum due his wife from the estate of his intestate, was his applying to one George Perebee, an accountant, to state the accounts between his wife Patsey and Isaac Dozier, her guardian, saying he wished to know how much to retain from the estate of Isaac Dozier.

*247Patsey survived her husband and was then living, and one of the questions presented to the Court, was, whether the sum due the said Patsey, from Isaac Dozier, belonged to the defendant as executor of Willis Sanderlin or survived to his wife. The other question was, whether the defendant’s testator was entitled as administrator of his first wife to her distributive share of her father’s estate, which was one-seventh part thereof.

His Honor, Judge Donneel, at Camden, on the last Circuit, *pro forma*disallowed both claims made by the defendant on behalf of his testator, and rendered judgment for the whole amount of two thousand nine hundred and sixty-nine dollars and forty cents, from which the defendant appealed.

*Kinney,*for the defendant.

— If a husband reduces his wife’s chose in action into possession during coverture, he is entitled to it as his own, at law. Here he had it in possession during the marriage, and manifested a determination to keep it *jure manto.*Whenever a debt is due to an administrator from the estate upon which he has administered, and he has assets in his hands, the assets to an amount sufficient to extinguish the debt, become his own, as the law appropriates them to that purpose. *Muse*v. *Sawyer,*N. C. Term Rep. 204. 1 Rolle’s Abr. 350. By marriage the husband is appointed by the wife to receive her choses in action. He is, therefore, in this case both payer and receiver, and the law makes the application.

*Bailey*and *Iredell,*for the plaintiff.

— Choses in action, to become the property of the husband, must be reduced into his possession as husband. Here he held as trustee, and no act was done showing a reduction into possession, in his own right. An intent only, to reduce into possession will not do. 1 Roper’s Husband and Wife, 204. *Blount*v. *Bestland,*5 Yes. Jun. 515. A mere appropriation is not sufficient. *Wildman*v. *Wildman,*9 Yes. Jun. 174. 1 Roper’s H. & W. 216. A husband’s receipt of his wife’s choses in action, must be in the character of husband. *Baker*v. *Hall,*12 Ves. Jun. 473. *Berry v.M‘Alister,*Conf. Rep. 100. If a husband takes property in the *248character of a trustee, and shows no act to evidence his taking it as husband, it survives to the wife. Merely calling upon an accountant to state an account, is not a sufficient act. A debt to be extinguished must be owing from the person, who is alone to receive it for his own use, and not for the use of another.

*Kinney,*in reply.

— Where a man is to receive money from a particular fund, and the fund is in his hands, the law makes the application, and discharges the debt. Can a debt due the wife be paid to any person but the husband *1*Can the wife give a receipt and discharge for the debt? A court of law will make the application of the fund; though a Court of Equity may hold the husband as a trustee for the wife.

Ruffin, Chief J ustice.

— It is yielded on the part of the plaintiff, that the testator, Willis Sanderlin, by administering on the estate of his first wife, Chloe, became entitled to her distributive share of her father’s estate, and might retain it out of the assets of the father, then in his own hands as administrator of the father. Whether the administration on the wife’s estate was necessary, might be doubted, supposing the husband to have assented to the distribution ; and there is no dispute, here, whether he held the assets for distribution, or for the benefit of his intestate the father’s creditors. Having the assets, he was himself the debtor to the father’s next of kin; and whether the debt to his wife became extinct, because as husband he might retain it, or not, it seems certain that by administering on her estate, which enured to his own benefit, and thereby becoming himself the sole creditor, and being . before the sole debtor, the debt was satisfied and extinguished.

It is insisted, however, that the debt to Patsey, the second wife, was never reduced to possession by the husband in his life time, and therefore survived to her. The argument is, that he did not hold as husband, but had the assets as administrator and trustee; and several cases were cited, where the executor married the residuary *249legatee, and it was held that it was not *per fte*a reduction to possession by him. But those cases seem to have no •application to that before us. They involved the consideration of the executor’s assent to the legacy, until which he could not be said to hold either as legatee or husband. Here the husband’s intestate had been the former guardian of the wife, and was indebted to her at his death. It is not seen how this differs from any other debt. If the intestate had owed the wife a bond debt, and the husband administered on the debtor’s estate and received assets sufficient, he might or ought to apply them to the debt; because as husband he has the right to retain, and as the administrator having assets, he is the hand to pay. It is clear, that the husband may retain for a debt due to his wife from his intestate. Indeed it is stated, that if a married woman be executrix, the husband may retain, if the testator was indebted to him, or (which is said to be the same thing) to the wife before marriage. Toll. Exrs. 359. It cannot be otherwise; for the case is within the reason of the rule of retainer. Whether the debt be due to the husband or to the wife, and whether the one or the other be the -representative, can make no difference; for in neither case, could a suit be brought, and therefore the remedy is by retainer. When a retainer is allowed, and the party has assets, it is an extinguishment, upon the principle that the same hand is both to pay and to receive. *Muse*v. *Sawyer,*N. C. Term Rep. 204.

The Court does not think it necessary to consider the effect of the marriage merely, nor of the evidence of the intention of the husband to appropriate a part of the assets to the debt; nor how the rule is, where the husband is the executor and the wife a legatee. The case is decided on the whole of its own circumstances; which are that an administrator of a debtor, with ample assets, marries the creditor. We think the law immediately applied so much of the assets in satisfaction. Consequently, upon the case agreed, both of those sums are to be deducted from the verdict; and the judgment must be reversed, and judgment rendered here for the plaintiff, for one thousand nine hundred and forty-seven dollars and twelve cents.

Per Curiam. Judgment accordingly.