The Hawaiian gazette., 1871-12-20
Supreme Court.
IN THE NATTER OF THE ESTATE OF xAPuA zupP11Ex
KALUAHINE, DECEASED.

a trust deed. bearing date April l5, 1871, of al
her property 20 5. B. Dole, the respondent, to b,
managed by him aud paid out for her benefit anC
purposes, therein stipulated; in which trust deco
it was expressly declared that in case of the deatt
Of the said Napua. the trustee should convey the
said real and personal property, or whatsoever
part of it may remain in his hands, to the heir.
of her body or according to the tenor of her
will should she leave valid will in fee, or if Meth
err to her heirs according to law.
1t is argued further, that Napua Zupplisn was
married to Kaluahine on or about the 18th day
of May last past, and that she died intestate on
or about the oath of Sept last past leaving her
husband alive.
That previous to the said marriage, and with
the knowledge of the said Kaluahine she the
said Napua Zupplien .Kaluahine, conveyed all her
estate, real and personal, with the exception Of
her interest in the ava trade, to the said re-
spondent IN trust as aforesaid.
1t is agreed that 0lepau and Palu are the broth
er and son of another brother of the late Napua
! Zupplien Kaluahine and are the nearest blood re-
laions; and it is alleged by the counsel for the
parties in interest that the defendent died with
out issue; and that she left no will
Upon this statement of facts the petitioners
ask judgment of the Court in the question of the
heirshp Of the said personal property, which is the
matter of controversy between SAID petitioners.
The husband claims that by virtue of the mar
rage he became the owner of the personal pro
perty of the wife and at her death was entitled
to the possession of the same, although conveyed
in trust as before stated BY the Code, the hus-
band is accountable for the debts of his wife, CON
LIacled either before or after marriage. He is
bouud to MAINTAIN and provide for his wife. The
husband shall in virtue of his marriage and in
consideration Of the responsibilities imposed upon
HIN by law, be the virtual owner, except other
wise stipulated 10y express marriage contract, of
all moveable property belonging to his wife ante
rior TO marriage and OF all moveable property ae-
crung to her after marriage, all of which he
shall have absolute control unless otherwise stip-
ulated by contract.
The Code further provides that the husband is
entitled to the priority in the administration of the
property of the deceased wife The English statute
is the same aud he is said to administer for bis own
benefit and for the recovery of her outstanding
property to his own and enjoyment. incud-
ing rights vested aud contingent, and funds at
her disposal during her lifetime or held in trust
for her This principle of distribution establish
en IN England, was formerly recognized generally
in the United States. but has been very much
modified by legislation In some of the States.
This is substantially re-enactment of the com
mon law, for the right of the husband at common
law was not only to administer but to enjoy ex-
clusiyely the effects of his deceased wife
1t Is coniended by the counsel for the heirs,
that the husband is not entitled in any event TO
the choses in action, unless be has reduced the
same to possession during the life of the wife |
In the case OF Whitaker VS.. Whitaker John |
III and lis, the Court say that the husband sur
viving his wife, is entitled to have her chooses in
action as well as to her personal estate id posses
sion, and that by a series of cases it is now set
tied that the representative Of the husband is en-
titled as much to that species of property as lies
in action or suit, and not reduced to possession
as any other. The same principle is contained in
Christians notes to I'd Black Com 1876. The
husband shall have administration of all his wife
personal estate which he did not reduce to pos
session before her DEATH and shall retain it to his
own use.-Ellott vs.. Collins Atk. 527; Cart
VS.. Russ l p. WINS. 393.
The same principle is recognized in the more
recent cases. In Wells vs.. Tyler Foster, 342
If the husband survives bis wife he is entitled
to administration, and to recover and receive any
property in her possession or to which SHE is en-
titled but which he had not reduced to his pos
session during her life, to his USE
A bequest Of personal property including cbos,
IS IN action, to a married woman, vests the same
n her husband, and upon her deceuse he takes
he property by survivorship as well as by the
orce of the statute of distribution, although he
ioes nothing during the coverture to reduce the
anne to possession.-l2 Cush, 3S2 % Picker
ng 4sO.
In RawsOn VS.. Nichols, n. Y Rep. 1l3. the
Court say that the property in this case stands
'recisely upon the footing of chooses in action of
he wife which have not been reduced to posses
ion during the coverture. In this event, the hus-
and has the right to receive aud enjoy them as
is own either as an incident to the marital rela-
ion and flowing from it, or as an incident to
is right of administration npon her estate
Kent, I'd vol. Com. ll9, says-Under the stat
te it is held that the husband is entitled for his
wn benefit. .jure marati, to administer and to
axe all her chattels, real things in action and ey-
ry other species of personal property whether re-
uced to possession or contingent or recoverable
My by suit but if the wife leaves chooses in a
on not reduced to possession in the wife's h- .
me, the husband will be liable for debts, dun =
1La, to that extent, for those chooses in action
i'll be assets in his hands.
The husband has the right to sue for and re- a
,cover debts due the wife at the time of the d
arriage, although they are not vested absolutely i
the husband. If the wife dies and the hus- a
and survives her before he has reduced the chose
action to possession, it does not strictly sur a
i've to him, but he is entitled to recover the b
ime to his own use by acting as her admins b
ator. i
By the statute of distribution of 22d and 23d I
harles II. and the 25th section of the statute of
le 29th of Charles H., the husbands of fsn1es e