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13 Miss. 769

McGee v. Ford

Mississippi Supreme Court

Decided January 15, 1846

Mississippi Supreme Court · decided 1846-01-15

<p>Where a wife’s distributive share in her father’s estate accrued after her marriage, it inures to the husband alone, and he can sue for it, without joining his wife.</p> <p>Where the distributee of an estate is also indebted to that estate for property purchased at the sale of its effects, which indebtedness has been reduced to judgment, the probate court will order the distributive portion of such indebted distributee, to be credited on such indebtedness.</p> <p>G., prior to the passage of the act for the preservation of the rights of married women, married F■, who was the daughter of D. F.; D. F. died after her marriage, and G. applied to the probate court, in his own name, for his wife’s distributive share in her father’s estate ; G.’s wife filed a counter petition, claiming the distributive fund in her own right, and averring the insolvency of her husband: held, that G. was entitled to the fund, in his own right, to the exclusion of his wife.</p>

Decided 1846-01-15

Mr. Justice ThacheR

¶1delivered the opinion of the court.

¶2McGee filed his petition in the probate court of Holmes county, for his distributive share of the estate of David Ford, which he claimed in the right of his wife. Subsequently, his wife filed her petition in the same court, setting forth her husband’s insolvency, and praying a decree of the distributive share to her sole and separate use. The administrators answered, that McGee was a large debtor to the estate, for property purchased at its sale; that his wife had received a portion from David Ford, during his lifetime; and that her marriage with McGee occurred before the passage of the act for the protection of married women. H. & H. 332. The court decreed McGee his distributive share of the estate, but ordered it to be credited upon the debt which he owed the estate ; and *772disallowed the petition of the wife. The debt due by McGee to the estate, had been reduced to a judgment.

¶3The record shows that the distributive share of McGee accrued after his marriage, and therefore it inured to him alone, and could be sued for by him, without joining his wife. Lowry v. Houston, 3 How. 394; Wade v. Grimes, 6 Ibid. 425. McGee, also, being indebted to the estate, upon judgment, a credit upon that judgment, to the amount of his distributive share, may be received as a payment to him of so much money. Should he institute his suit against the administrators for his distributive share, they could properly, in a plea of payment, set off the amount of the judgment due by him to the estate. In view of such principles, the probate court did not err in decreeing the payment of the distributive share, in the shape of a credit upon the judgment.

¶4Judgment affirmed.

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