Wells v. Tyler

The decision of this case lies within a very narrow compass. All exceptions to the form of the action and the sufficiency of the demand being waived by the agreement of the parties, the only questions presented for our consideration, arise upon the construction to be given to the will of Spaulding, and the rights of the husband of the legatee.

There is no suggestion that the event upon which the $1000 were to be paid to the wife of the plaintiff, has yet arrived ; and there is no controversy between the parties in regard to that sum. The action is brought to recover only the shares in the several corporations.

*342The thousand dollars were dependent upon the life and decision of the testator’s wife, but the shares he gave to his daughter, the plaintiff’s wife, “ to hold to her and her heirs forever.” The bequest of the shares was absolute and unconditional, without restriction in any way whatever. They were not given to. her, for her sole and separate use, free from the interference and control of her husband, but “ to her and her heirs forever.” They do not, therefore, come within the decision of Judge of Probate v. Hardy, 3 N. H. Rep. 147, and of Pierce and wife v. Dustin, 4 Foster’s Rep. 417. Nor are they affected by the provisions of the act of 1846.

A legacy to a wife does not vest absolutely in a husband. He has a right to reduce it to possession, or permit her to hold it to her separate use. If he does not exercise his rights over it, it survives to her in case of his death. If he survives her, he is entitled to administration, and to recover and receive a legacy or a distributive share in which she is interested, to his own use. Parsons v. Parsons, 9 N. H. Rep. 309, 321; Marston v. Carter and Trustee, 12 N. H. Rep. 159; Tucker v. Gordon, 5 N. H. Rep. 564.

And where a legacy is given in general terms to a wife, without restriction, the husband may reduce it to possession, or he may, for a valuable consideration, release or assign it by a deed to which she is not a party. Pierce and wife v. Dustin, before cited.

These authorities settle the matter, and there must therefore be,

Judgment for the plaintiff.