#### George W. Muse and Elizabeth his wife, *ads.*H. E. Edgerton, and others.

If there be a decreein equity in favor of husband and wife, and the husband die, the decree will survive to the wife, though her name might not have been necessarily joined in the proceedings.

But where there has been an order to pay the money to the husband, this is such an appropriation that it will go to his representatives upon his death.

*Before Ms Honor Chancellor JOHNSTON, at Barnwell, January*1838.

The defendants in this case filed their petition, in which they stated that the said Elizabeth being about the age of twenty years, on the 16th December, 1824, intermarried with Otis Edger-ton, who, on the 5th of November, 1826, filed a bill in the joint names of himself and the said Elizabeth and in her right, against Jacob Walfe, administrator of Jacob Walfe, deceased, the fa*180ther of the said Elizabeth, and one Benjamin Bruton, executor of John "Walfe, deceased, charging, among other things, that the said Elizabeth had, in her infancy,,in the division of her father’s estate, become entitled to a slave called Prank, whom (being in his possession as the guardian of the said Elizabeth) the said Jacob Walfe exchanged with the said John Walfe, for a slave called Peter, who lived but a short time, while Frank was still alive and valuable, in possession of the executor of John Walfe. The bill, among other things, prayed that the defendant, Benjamin Bruton, might be decreed to deliver up Frank, and account for his hire out of the estate of his testator, John Walfe. Benjamin Bru-ton having departed this life, letters of administration on the estate of John Walfe, with the will annexed, were granted to Charles Malloy, who being by a bill of revivor made a party to the cause, the same was heard in February term 1830, when the court decreed that Charles Malloy should give up the slave Frank, and account for his hire out of the estate of his testator.

Soon after the decree, and before the execution thereof, that is to say, in August 1830, Otis Edgerton departed this life, never having reduced the slave Frank into his possession. On the *5th*of May, 1831, the petitioners intermarried, and George W. Muse, some time afterwards, administered on the estate of Otis Edgerton, who left a considerable estate which he derived from his marriage with the said Elizabeth, and in her right, and three children, namely, H. E. Edgerton, E. T. Edgerton and O. E. Edgerton, the complainants.

On the 13th of October, 1831, Charles Malloy delivered up the slave Frank to George W. Muse, pursuant to the said decree, and in part execution thereof.

In January 1832, the commissioner, pursuant to the said decree, reported the sum of one thousand three hundred and fifty-five dollars as due from the estate of John Walfe, for the hire of Frank, which amount was subsequently received by George W. Muse. The petitioners becoming convinced that it would be for their benefit, as well as for the benefit of the children of Otis Edgerton, that partition of the estate should be made, on the 2d January, 1832, a bill was filed by James W. Maxwell, the uncle and *181next friend of the "complainants, praying partition of the estate of Otis Edgerton, including the slave Frank; and the petitioners consenting thereto, a writ of partition accordingly issued, upon which the commissioners, to whom it was directed, returned that the estate could not be divided, and recommended a sale, which return was confirmed by the court, and the estate ordered to be sold. That the estate was accordingly sold by the commissioner, except the slave Frank, as to whom, the order was suspended on the suggestion of the petitioners, who were duly appointed the guardians of the complainants.

The petitioners stated that they were advised that the slave Frank, as well as his hire, never having been in possession of Otis Edgerton, constituted no part of his estate. That had they been aware of that fact, they would not have consented that the writ of partition should have issued as to the said slave. Consequently, such consent was given under a mistake as to their rights. They prayed that the said proceedings in partition might be amended by striking out the name of the slave Frank; and they submitted and prayed the judgment of the court, whether the said amount recovered as aforesaid, for the hire of Frank, had not vested in the said Elizabeth, as survivor of Otis Edgerton, and for relief generally.

The case was heard on the petition and the commissioner’s report, and the following decretal order was made:

“After hearing the petition filed by Muse and wife in this case, and argument ^hereon, the Courtis of opinion, and it is decreed—

That the martial rights of Edgerton, the former husband of Mrs. Muse, attached on the slave Frank, and that he be subjected to partition, as parcel of the said Edgerton’s estate.

That so much of the said slave’s hire as arose previous to the said Elizabeth’s marriage with Edgerton and was not received by him in his life time, was a chose in action in right of his wife, at his death, and survived to her.

J. Johnston.

January 10th, 1838.”

A motion was submitted to the Court of Appeals in behalf of the *182defendants, to reform the decree of the Circuit Court, on the following grounds:

1st. Because the slave Frank, as well as his hire, was at the time of Edgerton’s death, the chose in action of the wife, and upon the death of the former survived to the latter.

2nd. Because the decree in the case of Edgerton and wife, against the administrator of John Walfe, for the slave Frank and his hire, was at the time of Edgerton’s death, the joint chose in action of Edgerton and wife, and upon the death of the *former,*survived to the latter.

*A. Patterson,*for the motion.

*E, Bellinger, contra.*

Harper, Ch.

The general rule of law certainly is, that if *there*be a joint judgment in favor of the husband and wife, upon the death of the husband the judgment survives to the wife. It is not less a settled rule of equity, that if there be a decree in favor of husband and wife and the husband dies, the decree survives to the wife. Such was the case of Nanney v. Martin, (1 Eq. Ca. Ab. 68.) Bond v. Simons, (3 Atk. 20) and Coppin v.-, (2 P. W. 497-499. See the authorities collected in Forbes v. Phillips, (1 Eden, 502.) The rule is recognized in many cases, and I am not aware of any exception to it. It is true that where there has been a decree in favor of husband and wife, and then an order of court to pay the money to the husband, this has been held such an appropriation that it will go to the husband’s representative upon his death. Such was the case of Heygate v. Annesly, *(3rd*Br. C. C. 362,) and such in effect the case of Packer v. Windham, (Prec. Ch. 412; 1 Ropers law of husband and wife, 213.) In this case the decree of 1830 was that the defendants “deliver up to the complainants the slave.” The Chancellor however has looked beyond the decretal order to the fact that the marital rights of the' husband had, as it is supposed, attached upon the slave so as to make him his'separate property. It is true that if there be a trover of the wife’s property before marriage, and a conversion after-wards, the husband may sue in his own name; but if he thinks pro*183per to join his wife and recovers judgment, this upon his death will survive to the wife. It is supposed however, that in this case the *chose*in action is the damages for .the wrongful conversion. But in detinue, where the object is to recover the specific property, the husband must sue alone. I have looked into the authorities and they seem to incline this way, and that it would be error if the wife should be joined. But if the error should be committed and no exception taken, the judgment standing unreversed must, as I apprehend, survive, upon the general principle that in every instance of a joint undertaking, obligation, or security to husband and wife, as well as to other persons, upon the death of one joint obligee, &c. the right will survive to the other. The separate existence of the wife is, at law, supposed to be merged in that of the husband after marriage. If a bond be given to husband and wife, it is the husband’s bond, and he alone may sue upon it. Beaver v. Lane, (2 Mod. 217) — Ankerstein v. Clarke, (4 J. R. 616,) and see the cases collected, 1 Roper’s law of husband and wife, 186-208. In the first case a judgment is quoted in which it'is said to have been held that he must sue alone, and that it would be error to join the wife, and so it is said by Roper. Yet in Coppin v.-, it was held by the Chancellor, that such a bond survives to the wife upon the death of thé husband. I suppose that the husband might have sustained an action in his own name for the slave in question. There was no necessity for his joining this demand in the same bill with that for an account against the administrator. He thought proper to make both claims in the name of himself and wife, and it has been decreed accordingly. Whatever error there may be in the decree, yet while it stands unreversed it must have its accustomed effect as a joint judgment. He however could not allege error against the claim of his own bill. The proceedings in partition not having been fully executed, are still under the control of the court.

It is therefore ordered and adjudged that the prayer of the petition be granted, and that the decree for the slave Frank and his hire survived to the petitioner, Elizabeth Muse.