E. C. Parks, & Co. v. Lydia Cushman, Trustee of Stephen Hadley, 9 Vt. 320

The opinion of the court was delivered by Redfield, J. The only 'question admitting of serious doubt in this case, is, whether the interest of the husband is such in the personal property of the wife, which she inherits during coverture, after distribution is made, but no possession, in fact, taken by the husband, that it can be held by. this attachment, in the hands of the administratrix, and thus applied upon his debts. For, in relation to the other questions, attempted to be raised, there seems little ground for doubt or controversy.

This process of attachment, when made to operate upon personal property, is coextensive with that of attachment on mesne process, which is ¡limited, of course, by the right to levy execution. Whatever property, then, is exempted frorff.levy of execution, must, of consequence, be exempt .from attachment, whether by this or the ordinary mode of process. The only object of attachment of property, in any case, is to 'hold it subject to the levy of execution.

And .in this .case, if it were so requested, the court would order execution to issue against the go«ds and chattels of the principal debtor, (if any,) in the hands of the tmstee> Xt would seem, then, to involve a very manifest absurdity, that the property, which is confessedly not*subject to the levy of an execution, in the hands of the debtor himself, should be adjudged goods and chattels, within the meaning of this statute, in the hands of the trustee, and the latter adjudged liable to hold them m readiness for levy of execution, which is expressly prohibited by statute.

In regard to the promissory note given to the wife, and for her separate property, it is well settled, that, both at law and in chancery, it will be treated as her separate property, and, unless collected during the coverture, belongs either to the wife or her personal representative, as the case may be, after the coverture is at an end. There could be, tlien, no plausibility in holding the trustee liable on that account. In regard to the question of the personal chattels, in possession of the trustee, we see no good reason why the administratrix, in this case, should not be held liable, as trustee.

Those, acting in an official capacity, like executors or adminstrators, but for the recent statute, would not be liable. That statute has removed all objection on that ground. And the character of the property being personal chattels, not in action, but in possession, there is no possibility of securing the separate property of the wife. If the administrator should not be held liable, the plaintiff or any other creditor, might immediately levy an execution upon the property, and, for any thing we can see, must hold it.

This property, after it is set to the share of the wife, is the same as any other personal property of the wife, in possession. It becomes the absolute property of the husband. And whether the property belonged to the wife, at the time of marriage, or was acquired during coverture, either by purchase or inheritance, does not vary the case, in the least. ,= The moment the property passes from the former owner, in the latter case, and the moment of marriage in the former, eo instanti, it vests in the husband.

In the one case, the woman becomes divested of her former interest, or rather it #merged in the right of the husband, and, in the other case, no interest ever vests in the wife. The right of an heir to a distributive share in an estate, as has been argued, is. not ordinarily attachable. If it be the right of the wife, it is treated like other choses in action, and sBe takes it by survivorship.. And, .in- this case, if the rights of-the parties were to be decided a$ they stood at the time of the service of the process, as.in*ordinary cases,’ the administratrix could not be held liable.

But' our statute attaches all property in-the hands of the trustee, at the time of the service of the process, or which comes into possession before the disclosure. While this property formed a portion of the general estate of *the ancestor, it was a mere chose in action. Had it been destroyed by a stranger, no action could have been sustained by the husband on that account. But after distribution made it ceased to belong to the estate. Had it then been destroyed, it would have been the loss of the wife and not of the estate.

The husband could have sustained trover against any one, who should have converted the property, and without joining the wife.' Upon the decease of the wife, the property would go to the husband and not to her executor or administrator, and, upon the decease of the husband, would go to his personal representative, and not to the wife.

In every view, which we can take of the case, we can treat the property in no other light than as having passed from the estate and vested in the husband, not in right of his wife, as an inchoate interest, to be perfected by manual custody, but absolutely, and the possession of the administratrix thenceforth becomes that of the husband. In this view of the case, it would seem to be very useless to hold the propert)- not liable to this attachment.

In analogy to all precedents upon the subject, the property, which the court below adjudged liable to this process, must be treated as the absolute property of the husband. The judgment of the county court is, therefore, affirmed.