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5 N.H. 564

Tucker v. Gordon

Superior Court of New Hampshire

Decided January 15, 1832

Superior Court of New Hampshire · decided 1832-01-15

Assumpsit for a legacy. The cause was tried'here, upon the general issue, at August term, 1881, and a verdict taken for the plain tiff’, subject to the opinion of the court upon the following case. Benoni Gordon, the defendant’s testator, made his will on the 25th May, 1817, and in December, 1823, died. The defendant caused the will to be duly proved and allowed in the probate court.

Cited by 2 later decisions — most recently June 1896

2 state decisions

Relies on Decker v. R. S. Livingston

Good law ✅— No negative treatment on recordhow we know

Decided 1832-01-15

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By the court.

¶1We shall first examine the question, whether the wife ought to have been joined in this suit.

¶2In general, for all causes of action, which were complete in the wife, before’ the coverture, she must be joined in the suit. 1 Chitty’s Pl. 17 — 21 ; 2 Starkie's Ev, 685 ; 1 M. & S. 176, Ramsey v. George ; Bingham on Coverture, 246 ; 6 B. & C. 253, Checchi v. Powell ; 8 D. & E. 631.

¶3But wherever she is the meritorious cause of an action, accruing during the coverture, she may be joined in the suit, or the husband rnay sue alone. 1 Chitty's Pl. 17 — 21 ; 5 Greenl. 417, Templeton v. Cram ; 1 B. & B. 443, Arnold v. Revoult; 15 Johns. 479, Decker v. Livingston ; 4 D. & E. 616 ; 2 M. & S. 393; 3 East, 331, Brown v. Benson.

¶4In this case, the implied promise, on which the action is founded, has arisen, and all the circumstances, on which it rests, have occurred, since the coverture. It was, therefore, unnecessary to join the wife in the action.

¶5With respect to the other question made in this case, is it seems to be settled, that in general, a husband has the control of a legacy given to his wife. He may release of assign it, by a deed, or other instrument, to which she is not a party ; and payment to her is no bar to an *566action brought by him. 1 Equity Cases Abridged, 301 ; 3 Cowen, 590, Udall v. Kenny; 5 Johns. Ch. Rep. 196, Schuyler v. Hoyle; Bingham on Coverture, 216 ; 4 Burns’ Ecclesiastical Law, 319 ; Lovelass, 247 — 248.

¶6Judgment for the plaintiff'.

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