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(3.) To her chattels real.
The husband, upon marriage, becomes possessed, also, of the chattels real of the wife, as leases for years, and the law gives him power, without her, to sell, assign, mortgage, or otherwise dispose of the same as he pleases, by any act in his lifetime;a except it be such an interest as the wife hath, by the provision or consent of her husband, by way of settlement.b Such chattels real are also liable to be sold on execution for his debts. If he makes no disposition of the same in his lifetime, he cannot devise the chattels real by will;c and the wife, after his death, will take the same in her own right, without being executrix or administratrix to her husband. If he grants a rent charge out of the same, without altering the estate, the rent charge becomes void at his death. If he survives his wife, the law gives him her chattels real,
absolutely, by survivorship; for he was in posses*135 sion of the chattel *real during the coverture, by a
kind of joint tenancy with the wife.d
(4.) To her choses in action.
As to debts due to the wife, at the time of her marriage, or afterwards, by bond, note, or otherwise, and which are termed choses in action, they are not vested absolutely in the husband, but the husband has power to sue for and recover, or release or assign the same; and when recovered, and reduced to possession, and not otherwise, it is evidence of a conversion of the same to his own use, and the money becomes in most cases absolutely his own.e
The rule is the same, if a legacy or distrib
a Co Litt. 46. b.
d Co. Litt. 351, b. Butler's note, 304, to Co. Litt. lib. 3, 351, a. 1 Rol. Abr. 345, pl. 40.
· Little v. Marsh, 2 Iredell's N. C. Eq. Rep. 18. 2 Leigh's N. P. 1109. The reduction of the wife's choses in action into possession by the husband is not in all cases conclusive, though it is prima facie evidence of the con
utive share accrues to the wife during coverture. So, he has power to release and discharge the debts, and to change the securities, with the consent of the debtor.b But if he dies before he recovers the money, or alters the security, or by some act reduces the chose in action into possession, the wife will be entitled to the debts in her own right, without administering on his estate or holding the same as assets for his debts.c If his wife dies and he survives her, before he has reduced the chose in action to possession, it does not strictly survive to him ; but he is entitled to recover the same to his own use, by acting as her administrator.d By the statute of distributions of
version of it, for there may be satisfactory proof that he took and held the mouey as her trustee, and for which he would be accountable. Estate of Hinds, 5 Wharton, 138.
· Garforth v. Bradley, 2 Vesey, sen , 675. Schuyler v. Hoyle, 5 Johns. Ch. Rep. 196. Haviland v. Bloom, 6 Ibid. 178. Carr v. Taylor, 10 Vesey, 578. Wildman v. Wildman, 9 Ibid. 174. Parsons y. Parsons, 9 N. H. Rep. 309.
The husband may release his wife's choses in action, even those in remainder or expectancy, which may possibly fall in during the marriage. I Roper on Husband and Wife, 227, 237.
· Kintger's estate, 2 Ashmead, 455. Poindexter v. Blackburn, 1 Iredell'8 N. C. Eq. Rep. 286. Snowhill v. Executor of S., 1 Green's N. J. Ch. Rep. 30. Richards v. Richards, 2 B. f Adol. 447. Gaters v. Madeley, 6 Meeson of W. 423. Scarpellini v. Atcheson, Q. B. June, 1845. It seems to be now a settled principle in the late English equity jurisprudence, under the sanction of the highest judicial authority, as that of Eldon, Grant, Plumer, Leach, Lyndhurst, Cottenham and Sugden, that nothing short of actual and positive reduction into possession by the husband will bar the wife's right by survivorship to the full enjoyment of her choses in action, and reversionary and contingent interests. See post, p. 138, n. b. It has been suggested by Mr. Sugden, that it would be a good amendment of the law to confer upon the husband the absolute power to dispose of all his wife's chattel interests or personal estate, whether present or reversionary. But the same lord chancellor decided, with the assistance of the master of the rolls in Box v. Jackson, 1 Drury, 42, in the chancery of Ireland, that the court had no power to take and hold the wife's consent as binding to an assignment of her reversionary interest or chose in action.
d Garforth v. Bradley, 2 Vesey, 675. Lord Tenderden, in Richards v. Richards, 2 B. 4 Adol. 447.
22 and 23 Charles II., and the 25th section of the statute of 29 Charles II. c. 3, in explanation thereof, and which have in substance been re-enacted in New-Yorka and the other states of the Union, the husbands of femes covert who die intestate, have a right to administer upon their personal estate, and to recover and enjoy the same. Under the statute, it is held, that the husband is entitled, for his own benefit, jure mariti, to administer, and to take all her chattels real, things in action, and every other species of personal property, whether reduced to possession, or contingent, or recoverable only by suit. But if the wife leaves choses in action not reduced to possession in the wife's life, the husband will be liable for her
debts dum sola, to that extent; for those choses *136 in action will be assets in his hands.c *It is also
settled, that if the husband, who has survived his wife, dies before he has recovered the choses in action, his representatives are entitled to that species of property; and in New York it would seem, (though it would be contrary to the English rule,) that the right of administration follows the right of the estate, and is to be granted to the next of kin of the husband; and the representatives of the husband, who administer upon the assets of the wife remaining unadministered, are liable for her debts to her creditors, in preference to the creditors of the
N. Y. Revised Statutes, vol. ii. p. 75, sec. 29. Ibid. 98, sec. 79.
Whitaker v. Whitaker, 6 Johns. Rep. 112. The statute of 29 Charles II., ch. 3, sec. 25, left the effects of femes covert as at common law; and the right of the husband, at common law, was not only to administer, but to enjoy exclusively the effects of his deceased wife. 2 Black's Com. 515, 516. Hoskins v. Miller, 2 Dev. N. C. Rep. 360. It seems to be the settled rule, that if the husband is reduced to the necessity of suing either at law or in equity in order to recover his deceased wife's choses in action, he must first administer on her estate and sue in the capacity of administra
• Heard v. Stanford, 3 P. Wms. 409,411. Cases temp. Talb , 173. S. C. Donnington v. Mitchell, 1 Green's N. J. Ch. Rep. 243. He is only liable as administrator on the estate of the wife for her debts, to the extent of the assets received by him. N. Y. Revised Statutes, vol. ii. p. 75.
husband.a So, if after the husband has administered in part on his wife's estate, and dies, and administration de bonis non of the wife should be obtained by a third person, or by the next of kin of the wife, he would be deemed a mere trustee for the representatives of the husband.b
It has been considerably discussed in the books, by what title the husband, surviving his wife, takes her choses in action. It has often been said, that he takes by the statute of distributions as her next of kin. But, from the language of the English courts, it would seem to be more proper to say, that he takes under the statute of distributions as husband, with a right in that capacity to administer for his own benefit; for in the ordinary sense, neither the husband nor wife can be said to be next of kin to the other.c
What will amount to a change of property in action belonging to the wife, so as to prevent it from going back to the wife in case she survives her husband, was discussed in the case of Scuyler v. Hoyle.d It was there shown, that the husband may assign, for a valuable consideration, his wife's choses in action to a creditor, free from the wife's contingent *right of survivor *137 ship. The doctrine that the husband may assign
· N. Y. Revised Statutes, vol. ii. p. 75. sec. 29.
• Butler's note, 304. to lib. 3. Co. Litt. Elliott v. Collier, 3 Alk. Rep. 526. Spencer, J., 6 Johns. Rep. 118. i Hagg. Eccl. Rep. 341. Betts v. Kimpton, 2 B. f. Adolphus, 273. See also Hunter v. Hallett, 1 Edw. Ch. Rep. 388 and infra, p. 411, 412. In Ohio the law is different. The husband is not next of kin to his wife for inheritance. He may administer on the estate of his deceased wife, but he must account not only to the creditors of the wife, but to the heirs, and therefore the husband cannot as survivor in his own right pursue her choses in action either in law or equity. Curry v. Fulkingon, 14 Ohio Rep. 100. So in Connecticut, the husband on the death of his wife does not become entitled as heir or survi. vor to her personal property. He does not take as administrator, but goes to her administrator for distribution. Baldwin v. Carter, 17 Conn. Rep. 201.
63 Vesey, 246, 247. 14 Ibid. 381, 382. 15 Ibid. 537. 18 Ibid. 49, 55, 56.
d 5 Johns. Ch. Rep. 196.
the wife's chose in action for a valuable consideration, and thereby bar her of her right of survivorship in the debt, but subject, nevertheless, to the wife's equity, has been frequently declared, and is understood to be the rule best sustained by authority. Such an appropriation of the property is the exercise of an act of ownership for a valuable purpose, and an actual appropriation of the chattel which the husband had a right to make. But a voluntary assignment by the husband of the wife's choses in action without consideration, will not bind her, if she survives him.b The rule is, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the wife's choses in action, or assigns them without reservation, for a valuable consideration, or if he recovers her debt by a suit in his own name, or if he releases the debt, or novates the debt, by taking a new security in his own name; in all these cases, upon his death, the right of survivorship in the wife, to the property, ceases. And if the husband obtains a judgment or decree, as to money to which he was entitled in right of his wife, and the suit was in his own name alone, the
a Carteret v. Paschal, 3 P. Wms. 197. Bates v. Dandy, 2 Atk. Rep. 206. S. C. 3 Russel's Rep. 65, note. Jewson v. Moulson, 2 Atk. 417. Earl of Salisbury v. Newton, 1 Eden's Rep. 370. Sir William Grant, in Mitford v. Mitford, 9 Vesey, 87. Johnson v. Johnson, 1 Jac. f. Walk. 456. Schuyler v. Hoyle, above cited. Kenney v. Udall, 5 Johns. Ch. Rep. 164. S. C. 5 Cowen's Rep. 597. Lowry v. Houston, 3 Howard, 394. Siter and another, Guardians of Jordan, 4 Rawle's Rep. 468. In this last case the assignment was sustained, not strictly as an assignment for a valuable consideration enuring to the husband, but on the very meritorious ground that the assignment of the wife's chose in action to trustees was for the benefit of her and her child. It was a reasonable anticipation by settlement, of a provision for the wife's equity, and valid in equity, though the fund was not reduced to possession before the execution of the assignment. But see the note a. infra, p. 138, where the power of the husband over the wife's rights in action is more limited.
Burnet v. Kinnaston, 2 Vern. Rep. 401. Sir Williain Grant in Mitford v. Mitford, 9 Vesey, 87. Sir Thomas Plumer, in Johnson v. Johnson, 1 Jac. of Walk. 456. Jewson v. Moulson, 2 Atk. Rep. 420. Saddington v. Kinsman, 1 Bro. 44. Hartman v. Dowdel, 1 Rawle's Rep. 279.