#### JOSEPH MARDREE & AL. vs. JOHN MARDREE.

A distributive share, accruing to a wife during the coverture, does not vestía the husband, but will survive to the wife, unless reduced into possession by the husband.

Where the wile is the sole next of tin and the husband the administtatov, and the debts of tire intestate are paid or assumed by him, and there are ne reasons why he should hold any longer as administrator, the presumption is very strong that he held as husband, and consequently for himself.

Where there are other next of kin besides the wife, the husband being administrator, in order to entitle him to the property in his own right, ha must appear by some act to be exercising a dominion over it, not according to his duty as administrator or in the discharge of functions of a representative character, but for his own benefit and as personally the owner. Thus when the husband and the other next of kin, there being other funds for the payment ofthe debts, had agreed to employ the negroes, &c., on the lands of the intestate and at the end of the year to divide the proceeds of the crop among them “according to their rights as distributees *Held,*that this was a sufficient reduction into possession by the husband, to prevent any right of survivorship in the wife.

The cases of *Revel*v. *Revel,*2 Dev. 4" Bat. 272, *Poindexter*v. *Blackburn,*1 Ire. Eq. 286, cited and approved.

Appeal from the Superior Court of Law of Perquimans County, at the Fall Term, 1848, his Honor Judge Bailey-presiding.

*296Joseph Dail died intestate in January 1817, leaving a widow, Celia an only daughter and child, then the wife of Wilson Mardree, and also leaving a number of slaves, stocks of various kinds, which were on two plantations in Pcrquimons, where he had resided and died. One trnct of the land belonged to him, Dail, in fee ; and the other belonged to his wife in fee. Administration of his estate was taken in May 1847 by the son in law, Wilson Mardree. The intestate left cash and good bonds to the amount of nearly $1000, which was more than sufficient to pay the debts, and came to the hands of the administrator Wilson. Upon the death of the intestate. it was agreed between Mrs. Dail and Wilson Mardree, that the latter should sell nothing as administrator,but that they would keep the slaves and other personal property on the two plantations and plant and make crops thereon for that year on their joint account, •and divide the crops in proportion to their distributive shares in the property. On the 9th day of August following, an instrument was drawn up by Wilson Mardree and executed by Mrs. Dail in the following words :

‘Whereas Wilson Mardree has taken out administration upon the estate of my late husband, Joseph Dail, of which the only distributees are myself and the said Wilson in right of his wife Harriet, who is the daughter of the said Joseph : And whereas it was agreed betw-een the said Wilson and myself to keep the personal estate together and to cultivate the lands during the present year : Therefore, know all men, that I, Celia Dail, do, for and In consideration of the premises, agree that the personal estate of the said Joseph shall be kept together and the crop that was planted at the death of the said Joseph, as well as that which was planted after his death, shall be cultivated for the benefit of the estate of the said Joseph ; and that the proceeds of the crops, after paying expenses and charges, shall be divided between the said Mardree *297and myself, according to our rights as distributees of the said Joseph Dail*”

The plantations were managed by Wilson Mardree through the year 1847, until his death in the latter part of October. But he did not reside on either of the plantations ; and Mrs. Dail lived on that on which her husband died. In November 1847, John Mardree obtained letters of administration on the estate of Wilson Mardree and also became administrator *de bonis non*of the first intestate, Dail. He sold the crops of 1847 and the stock and paid all the debts, and has a surplus of cash in hand of about $1^00, after paying all the debts of Dail — being the proceeds of the stock and other chattels (except slaves) that had belonged to Dail, and of the said crops; and he has also in possession the slaves.

In September 1848, Mrs. Dail and Mrs. Mardree, the widow of Wilson Mardree, filed their petition against John Mardree, as administrator *de bonis non*of Joseph Dail for an account and distribution of the estate. The defendant insisted in his answer, that Mrs. Mardree owned no part of the slaves or other specific property left by her father, but that her slaves became vested in her late husband by force of his possession of the property and the use of it as his own. On the hearing, the Judge of the Superior Court-was of that opinion and decreed accordingly ; and Mrs. Mardree appealed.

*Jordan,*for the plaintiffs, submitted the following argument :

Though the precise question to be determined here has not been before the Court, there are undoubted principles and analogous cases, which establish the right of the wife to the possession of the property in dispute ; and this depends upon the question of reduction into possession *by the*husband. This is a *sine quq non*to his right — a cor-*298dition, upon which alone, the law gives to him her choses in action.

Now, reduction into possession is a plain, legal, unambiguous phrase, denoting a specific act, attended with legal consequences ; and no acts of an equivalent character. will, at law, produce the same effect. 2 *Kent.*135. 1 *Russ.*20. *Roper on Husband and Wife,*Yol. 1, 204.

The law leans to the right of the wife by survivorship, and, to defeat this right, the property must be altered. The acts of *the*husband must unequivocally show, that;, he has elected to disaffirm the wife’s right, and hold in his own. 5 *Johnson’s Chancery Cases,*and cases cited; *Berry*v. *McCalister,*Conf. R. 100. As to what is a reduction into possession by the husband ; see further, *Williams on Executors,*1 vol. 557, and authorities there cited ; *Roper on husband and wife,*220, ut Supra.

Constructive possession of the wife’s choses in action by the husband is not to be favored, so as to defeat her claim by survivorship. 11 *Seargent and Rawls,*325.

Where husband died, before distribution made, it was held to survive: 1 *Dessausure, 244,*and the same rule was declared, where the husband had possession of the property, as executor. 2 *Call.*447. *Hen.*& *Mur. 214.*

There must be some distinct act, indicative to elect to take as husband. 6 *Mur. 64,*and see 1st *Randolph,*355. The case of *Elms*v. *Hughes,*3 Dessausure 155, is decisive of this case. The widow, administered upon the hus< band’s estate and married. The second husband took into his possession and use all the property, and kept it as his-own up to his death. *The contest*was between the widow, as survivor, and the husband’s administrator. Adjudged to the wife, upon the ground, that *partition between*husband and widow, and her first children, was necessary, to vest the property *in Elms as husband;*and until division, it was a right of action, and survived. The hus* *299band’s possession must be in the character of husband. 16 *Vesey*413, 12 *Vesey*497. The property must come under the *actual control and possession*of the husband— *quasi husband.*12 *Kent.*138 ; for marriage is only a qualified gift of the wife’s choses in action. *Roper*202.

Reduction into possession is confined to actual receipt; and he must not leave it in the State in which he found it. He must claim it as his own ; deal with it as his own ; and exclude any vestige that he holds in his wife’s right. 2 *Vernon*707, also ISO *Stamper*v. *Barker*5 Mad. 167, *Estate of Hinds, 5*Whuton 158, 1 *Russ.*20.

If the husband recovers judgment for the debt of the wife, and dies before execution, the wife is entitled. 3 *Atkins*20, *Pre. Ch.*415, 1 *Ch. Cases*27, *Preston on Abstracts,*&c. 2 Vol. 34S.

Husband seised of tithes in right of his wife, dies: the wife has the action for subtraction : but if the tithes be once set out and severed, they become a chattel, vested in the husband. *Williams on Executors*554, and cases cited.

The mere intention to reduce them into possession, is insufficient. The acts must be such, as to change the property, and make the husband’s absolute ; such as an award upon a judgment, &c.: therefore, a mere appropriation of the funds, will be unavailing. 5 *Vesey*515. *Williams*556.

And, the distinction between property coming to the husband, before and after marriage, no longer obtains. 3 *Vesey*675. 10 *Vesey*578. *Revel*v. *Revel,*2 Dev. &Bat. 272. *Hardie*v. *Gotten*& *others,*1 Ire. Eq, 61, *Poindex-ter*v. *Blackburn,*286, *ut Supra.*

If the husband assign over the wife’s bond, due to the wife; this will not bind her. *Freeman*241. *Pre. in Chancery*121, 419. Or, if he takes it into possession, receives part principal, and all the interest,, it survives. *300*Crash*v. *Crash,*1st and 2nd Yol. Mad.'Chancery Reports 411.

The possession, and the right of property are inseparable. The husband in the case before us held it either as administrator, or, in his own right. The right of proper* {.y could not be in one, and the possession in the other at the same time.

Now, the acts of the husband were his acts as administrator. tie took possession as administrator — held as administrator ; and to adopt them, and make them speak an election, on his part, to take as husband, and divest the wife’s interest, would be, to give the instrument, between the distributees, a meaning foreign to its clear intent.

To make the agreement a reduction into possession. We must alter the doctrine laid down in the books; we must have recourse to a substitute ; to something, which, shall be distinct from that, which has, hitherto, been regarded as a condition, in the completion of the husband’s title.

But, in order to determine this question, divest the husband of his two-fold character. Suppose administration had been granted to John Mardree in the first instance, and the agreement had been executed in the same manner by the husband and Mrs. Dale ; in whom would the right of property have been? Would that agreement have divested the administrator of his right ? and who could have sued for a wrong done to the property ? The administrator John, or the two distributees ? Or, would he have held as their trustee ? Surely, the administrator, when there were large debts hanging over the estate, would not expect such consequences to follow !!

Then in what better condition is the husband ? The agreement is made for specific purposes, to wit; to pre-? yepf a sacrifice of the growing crop.

*301The intent is apparent, from the case as made up and agreement: for up to the day of the husband’s death, he held the property as administrator, and kept it upon the lands of Joseph Dail, the intestate, and no division is spoken of as to the property of the intestate, except the corn ; showing clearly, the husband did not intend to make the property his own, by that act; and after the crop was matured then to settle up the estate as administrator and sell the perishable part thereof. This view, further appears, from the fact, that the money and notes were kept distinct as administrator: and the administrator *de bonis non*received them as his intestate’s, Dail’s property; and thus made his returns — manifesting most clearly, how this agreement was interpreted by all those interested. The agreement sets out, and claims in right of his wife ; and concludes, for the benefit of his intestate’s estate.

The administrador Wilson, received the writing as a mere protection : for it appears, the other distributee on< ly signed it — a part of the crop growing on her maiden land. While, the property remained in the same state, R was, when his intestate died, without division — the debts unpaid, and without *any claim of the husband to the same, as husband.*The agreement, though signed on the 9th of August, shows it was entered into long before ; evincing the crop was the object in view, and thus to benefit the estate.

Separate the administrator from the husband, or, in other words, make them two distinct persons, and the agreement amounts to nothing ; for all that can be said of it, it was to make the administrator a mere trustee; and according to the case of *Wall*v. *Thompson,*16 Vesey 413, was not a reduction into possession, for it was made *diverso intuitu.*

The plaintiff particularly refers your Honors, to the ease in 3rd *Howard’s Mississippi Reports, 307*; *Scott*v, *James*& *others;*and to *the argument of*counsel, Also *302to *Fonblanque Equity,*title, choses in action and notes 313. Also *Conference Report**100, The husband, could at no time, lay his hand on any piece of property, and say this is mine ; and there is no evidence he ever dreamed of claiming, or regarded it as bis own, and without this, there is no reduction. 2 *Black. Com.*432.

*Heath*for the defendant, submitted the following argu • ment:

If the question be an open one in this State, and the Counsel is not aware, whatever *obiter dicta,*may exist that it has ever been *directly*in judgment, then it is insisted. for the defendant, that chatties *accruing to the wife, during coverture,*vest, without any Act of the husband, at once, in him : for this position see the very able historical argument of Judge Whyte, 1 *Yerger’s Tennes~ see Reports,*413.

2d. The rule, that a reduction of a wile’s chose in action, by the husband into his possession, as trustee, or in a fiduciary character, will not bar the claim of the wife surviving, refers to those trusts, where the husband expressly receives, and holds for the wife : possession as administrator, has been expressly held to be sufficient, to bar the claim of the surviving wife.

1 *Howard’s Mississippi Reports,*558, confirmed in *Ma-grudev*& *Nichols*v. *Stewart’s Adm’r,*4 Howard, 204.

3d. Even if this were not so, and such reduction as administrator would not bar the wife surviving-, then the agreement, between the distributees of Dail, is conclusive of the reduction into possession, and will bar her claim : it is an agreement, between them, *as distributees,*one of whom *is also administrator and assents;*it recites* that they are “the *only*distributees” of said Dail: that it hath been agreed between them, as such distributees, to beep the personal property together; to cultivate the crop;, *303and that “the proceeds of the said crop, after paying expenses, and charges, shall be divided between the said Wilson Mardree and myself, according to our rights, as distributees of the said Joseph Dail.” This agreement is signed and sealed by one of the distributees, andhaud-ed to, and kept by the other ; the one b}' giving, and the other by accepting and holding it, must be construed to have agreed to bold as distributees, and tenants in common, particularly as one of the distributees was administrator on the estate, and had in his hands, as the case shows, bonds, notes, and cash sufficient, to pay all the debts due from the estate. If authority be wanting to give this effect to the agreement, it can be found. *Lassiter*& *wife*v. *Turner, Administrator,*1st Yerger, Tennessee Reports, 413.

4th. It would seem on principle, that in all cases, where the character of administrator and next of kin is combined in the same individual, any act done by that individual in relation to the property of the intestate, not plainly referable to his character as administrator, but which he might rightfully do as distributee, would be an election to hold as distributee,and not as administrator, in precisely the same way, and to the same extent, as a like act would vest a legacy in one as legatee, where the same person combines the two characters of legatee and executor, and as in the latter, so in the former case, this will be presumed, from slight circumstances, particularly where the property is not wanted to discharge the liabilities of the estate. Here the case and the agreement both show, that the administrator has done acts, which he had no authority to do as administrator, not referable to his character as such ; but which he might rightfully do as distributee, and tenant in common with the other distributees ; hence there was a reduction into possession by the husband, so as to bar the wife’s claim as survivor.

*304Ruffin, C. J.

The Court is of opinion, that the decree

was right and ought to be affirmed. A distributive share, accruing to a wife during the coverture, does not vest in the husband, but will survive to the wife, unless reduced into possession by the husband. *Revel*v. *Revel,*2 Dev. *&*Bat. 272. *Poindexter*v. *Blackburn,*1 Ired Eq. 286. When the administrator is some other person than the husband, it is generally not difficult to determine, whether the husband h.as or has not possessed himself of the share, or the things of which it consists,.so as to change the property, by extinguishing the wife’s right and vesting it. in the husband ; for usually the share consists of money which the husband receives and for which he gives a receipt, or it-consists of stock or spccfic things, which are divided and a share thereout allotted to the wife or the husband for her, and transferred or delivered to him. But we suppose it. is not necessary, there should be an actual division between the next of kin, to enable the husband of one of them to take, and exclude the wife’s right by survivorship. All that is requisite is, that the share should be *got oat*of *the hands of the*administrator, as such, and should be held, either in severalty, or in common with others, as the husband’s own. For, if, instead .of a division of the pioperty by the administrator and a delivery by him of the shares to the next of kin severalty, it be agreed by the next of kin, that they will take the property from the administrator undivided,and the administrator accordingly give it up to all them together, then clearly the next of kin hold the things absolutely as their own property, and the husband of the next of kin is then to be regarded as in possession of his wife’s share for himself and as his own property. For, it must be noted, that no act of the wife is necessary to vest her property in her husband, nor can she in any manner prevent it. The act is the husband’s own j and, though he must reduce the chose into possession, *305yet any act' of dominion over it is sufficient, which shows that the husband undertakes to use or dispose of it, as his own presently, whether the possession be several as to one share, or jointly Avith some or all of the next of kin. When the title of the administrator becomes extinct, that of the next of kin is made absolute. But it is not, ordinarily, so easy to determine this question, when the same person is the administrator and the husband of one of the next of kin. Where the wife is the sole next of kin, and the debts of the intestate are paid or assumed by the husband, and there is no reason, why the husband should hold any longer as administrator, the presumption is very strong, that he held as husband, and, consequently, for himself. But, when there is another person besides the wife entitled to share in the estate, it would seem to require some unequivocal act on the part of the husband, who is the administrator, to terminate the title in himself as administrator and in his wife as one of the next of kin, and vest it in himself as husband. Yet, clearly, there must be some way in which it may be done; and we think it is not difficult to settle the principle, which will determine, whether the husband has done an act, which was meant by him, and in its nature is sufficient, to denote that he holds as husband, and thereby to terminate the title of administrator and merge his wife’s right in his own. It is this, that he shall appear by some act to be exercising a dominion over the property, not according to his duty as administrator, or in the discharge of functions of a representative character, but for his own benefit and as personally the owner. For, unless that be sufficient, we do not perceive how the "right can ever be vested in the husband except by a suit to which the wife is a party. Therefore, whenever the husband or the other next of kin divide the property, or they take it undivided and apply it to uses having no reference to the office of administrator and contrary to its *306duties, but for the benefit of persons who are next of kin or in their right, it seems manifest that the possession is that of all the persons, who are next of kin, and not of that one who is administrator and in his representative capacity. If it be not so, what else could the husband do, which would more completely vest the possession in him as husband *X*Now, the husband here and Mrs. Dail contracted respecting this property as owners, saying that they are “the only distributees,” and as such entitled to dispose of the property for their own benefit; and therefore they agreed that the slaves, instead of being sold or hired in course of administration, should work on the land belonging to those parties respectively, and that the profits should be divided in certain proportions between theml The administrator, did not merely finish the crops planted by his intestate, but the parties in their own right planted other crops and employed the slaves and stock in their culture. It is true, the article says, that it should be for the benefit of the estate *•,*but thb meaning of that, it is obvious, was not tp provide a fund for the purposes of the estate, as the payment of debts— since there were none, not already provided for, but if was to prevent either of the parties from claiming a greater share of the produce than in proportion to his or her share of the estate under the statute of distributions. For, immediately after saying, that it should be for the benefit of the estate, the article adds, “ and the proceeds of the crops shall be divided between the said Mardree and myself, according to our rights *as distributees.”*It seems to us, therefore, that this was as unquivocal an election by the next of kin and the husband to hold in their personal rights as they could, under the circumstances, have evinced.

Pm Curiam. Decree affirmed with costs.