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37 Mass. 556

Phelps v. Phelps

Massachusetts Supreme Judicial Court

Decided October 8, 1838

Massachusetts Supreme Judicial Court · decided 1838-10-08

Assumpsit by the plaintiff, as executor of Azor Phelps, deceased, to recover a sum of money received by the defendant of Nathan Howe. The parties stated a case. The defendant was married to the testator in 1815, and during her coverture, took a note from Howe, payable to herself, for money which she lent him. This note was paid to her by Howe after the death of the testator ; and the sum so paid is the subject of the present action.

Decided 1838-10-08

Morton J.

¶1dissented on one point, remarking that in his opinion the property in question was a chose in action reduced to possession by the husband ; that the husband, and no- one else, had a right to collect the interest on the notes held by the wife at the time of the marriage, and that the wife, in receiving it, acted as his agent, so that in law he received it ; that if he received it, no act of volition nor declaration on his part, could preserve the rights of the wife ; that the case of Stanwood v. Stanwood was not so strong as the one at bar, and that even in that case the decision was contrary to the tules of the common law.

¶2Plaintiff nonsuit.

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