property vests in him by the recovery, and is so changed as to take away the right of survivorship in the wife. If the suit was in their joint names, and he died *before he had reduced the property to possession, *138 the wife as survivor would take the benefit of recovery. It is settled, that in a suit in chancery, by the husband to recover a legacy, or distributive share due to the wife, she must be made a party with him, and then the court will require the husband to make a suitable provision for the wife out of the property. The court of chancery has always discovered an anxiety to provide for the wife out of her property in action, which the husband may seek to recover. If he takes possession in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife to the property if she survives him. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take as survivor, instead of the personal representatives of the husband.

A general assignment in bankruptcy, or under insolvent laws, passes the wife's property, and her choses in action, but subject to her right of survivorship; and if the husband dies before the assignees have reduced the property to possession, it will survive to the wife, for the assignees possess the same rights as the husband before the bankruptcy, and none other.b It has been, accord

• Hilliard v. Hambridge, Alleyn's Rep. 36. Lord Hardwicke, in Garforth v. Bradley, 2 Vesey, 675. M'Dowl v. Charles, 6 Johns. Ch. Rep. 132. Searing v. Searing, 9 Paige's Rep. 283.

o Mitford v. Mitford, 9 Vesey, 87. Jewson v. Moulson, 2 Atk. Rep. 420. Gayner v. Wilkinson, Dickens' Rep. 491. Saddington v. Kinsman, i Bro. C. C. 44. Van Epps v. Van Deusen, 4 Paige's Rep. 64. Pierce y. Thornely, 2 Simons' Rep. 167. Outcall v. Van Winkle, 1 Green's N. J. Ch. Rep. 516. It is well settled, that at law, an assignment in bankruptcy will, of itself, bar the wife's contingent right of survivorship in a chose in action, and will bar a suit at law on a bond entered into by the wife dum sola. Miles v. Williams, 1 P. Wms. 249, in K. B. Bosvil v. Brander, 1 P. Wms. 158, in K. B. Mitchell v. Hughes, 6 Bing. Rep. 689. But in the late case of Mallory v. Vanderheyden before Vice-Chancellor Parker, of

ingly, held, that a legacy in stock was not reduced to possession by such an assignment, so as to bar the wife's right of survivorship, and the wife took it by survivorship as against the assignees.a

the 3d circuit, New York Legal Observer for January, 1846, it was held, that though a discharge of the husband in bankruptcy would bar a suit at law against husband and wife for the debt of the wife dum sola, yet in equity, satisfaction could be had for the debt out of her separate estate, where there had been an appointment by her charging her separate estate with the debt. Vide Infra, p. 146.

* Pierce v. Thornely, 2 Simons' Rep. 167. 180. It is difficult to reconcile the more ancient with the recent English equity cases, on the subject of the effect to be given to the husband's assignment of the wife's choses in action. Thus, in the cases of Chandos v. Talbot, 2 P. Wms. 601; Bates v. Dandy, 2 Atk. Rep. 206, and Hawkins v. Obyn, ibid. 549, the language is, that a contingent interest, or the possibility of a term, or a specific possibility of the wife, may be assigned by the husband for a valua. ble consideration, so as to bind his wife. But in Hornsby v. Lee, 2 Madd Ch. Rep. 16; Purdew v. Jackson, 1 Russell's Rep. 70, and Honner v. Morton, 3 ibid. 65, it is held, that the husband's assignment of the wife's reversionary interest will not bar her right as his survivor, provided the interest continues reversionary to his death. So, Sir William Grant, in Mit. ford v. Mitford, 9 Vesey, 87, doubted the soundness of the rule, that the husband's assignment for a valuable consideration passed the wife's chose in action, freed from her contingent right of survivorship, because, in that case, the purchaser would take a greater right than the husband had. He admitted, however, that a distinction was constantly taken between assignments in bankruptcy, or by operation of law, and a particular assignee for a specific consideration. And in Hornsby v. Lee, Sir Th. Plumer considered, that a particular assignee was not better off in this respect than a general assignee in bankruptcy. Afterwards, in Purdew v. Jackson, 1 Russell's Rep. 76, the subject was discussed and re-argued with great abil. ity, and Sir Th. Plumer, in an elaborate opinion, declared his adherence to bis former opinion, and carried his doctrine out broadly to the whole ex. tent of it, by holding, that all assignments made by the husband of the wife's outstanding personal chattels, not then reduced to possession, whether the assignment be in bankruptcy, or under an insolvent act, or to trust. ees for payment of debts, or to a purchaser for a valuable consideration, pass only the interest which the husband had, subject to the wife's legal right of survivorship ; and the husband could not possibly make an assignment of the reversionary interest of his wife, so as to bar her as survivor, provided the interest remained reversionary. Sir William Grant, in Morley v. Wright, 11 Vesey, 12, thought there was great weight in the proposition of Lord Alvanley, that no assignment by the husband, even for a

The wife's equity to a reasonable provision out of her property for the support of herself and her children, makes a distinguished figure in the modern chancery cases, which relate to the claims of the husband upon the property of his wife in action. If the husband wants the aid of chancery to enable him to get possession of his wife's property, or if her fortune be within the reach of the court, he must do what is equitable by making a rea

valuable consideration, could convey more than the right he had to reduce the wife's outstanding interest into possession, subject to “ the wife's equity;" and that if the husband died before that fact had occurred, the wife's right as survivor would bar the assignee. In Elison v. Elwin, 13 Sim. 309, the doctrine in the case of Purdew v. Jackson, re-affirmed by the Vice Chancellor. Again, in Honner v. Morton, 3 Russel's Rep. 65, Lord Chancellor Lyndhurst gave a decided support to the doctrines of the successive masters of the rolls, Lord Alvanley, Sir William Grant, and Sir Th. Plumer, so far as the reversionary interest of the wife was in question ; but he took a distinction between the case in which the husband had an immediate power at the time of the assignment, of reducing the chose in action into possession, and where he had not. In the first case, the assignment ought, in equity, to be regarded as the actual reduction of the property into possession, and a consequent transfer of it, for he had the power to do it, and the assignment amounted to an agreement to do it.

These latter cases were reviewed in Siter and another, guardians of Jordan, 4 Ravle's Rep. 468, by Ch. J. Gibson, with learning and ability, and the reasoning of Sir Thomas Plumer, and of Lord Lyndhurst, powerfully combated. Afterwards, in Sherman v. Reigart, 7 Watts f. Serg. 169, the court declared their adherence to the doctrine in Siter's case. The doctrine of the English cases, that the efficiency of the assignment depends on the previous reduction of the chose in action to possession, is declared not to be sound, inasmuch as the husband jure mariti has dominion over the property as well as the power to reduce it to possession, and his fair bona fide transfer of it for a valuable consideration passes that whole dominion, capacity, and title. The husband, by marriage, succeeds to the wife's power of disposal; and the distinction between vested and contingent, or reversionary interests of the wise, in respect to the marital dominion and power of transfer of it, is held to be without foundation. The crit. ical review in this last case of the English cases was intended only to show the weak grounds on which the new theory rested; and the point really decided in Pennsylvania, and the authority of the case, extend only to prove that an assignment of a wife's chose in action to trustees for the benefit of the wife and children, and to place it beyond the power of waste by the husband, was meritorious and valid in equity.



sonable provision out of it for the maintenance of her and her children. Whether the suit for the wife's debt, legacy or portion, be by the husband or by his assignees, the result is the same, and a proper settlement on the wife must first be made of a proportion of the property.a The provision is to be proportioned, not merely to that part of the equitable portion of the wife's estate which the husband seeks, but to the whole of her personal fortune, including what the husband had previously received. And perhaps chancery ought, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife's personal property in action, unless he would make a competent provision for her. The English rule in equity is, that where there is a suit in the ecclesiastical courts for subtraction of a legacy, and there is a married woman to be protected, or a trust to be executed, the court of chancery will restrain the suit by injunction.b Chancery will restrain the husband from proceeding

in the ecclesiastical courts for the recovery of the *140 wife's legacy, until *a provision is make for her ;c

a Howard v. Moffat, 2 Johns. Ch. Rep. 206. i Eden's Rep. 67. 370, 371. 2 Atk. Rep. 420, 421, 422. Sleech v. Thorington, 2 Vesey, Ser. 562. 4 Bro. Rep. 139. 2 Cox's Cases, 422. 11 Vesey, 17. 20, 21. 1 Madd. Ch. Rep. 362. Clancy's Essay, passim. Duvall v. Farmers' Bank of Maryland, 4 Gill. d. Johns. Rep. 282. Whitesides v. Dorris, 7 Dana's Rep. 106. Perryclear v. Jacobs, Hill's S. C. Ch. Rep. 509. Like v. Beresford, 3 Vesey, 506. In this last case, the assignment of the wife's interest in bank stock, to creditors in trust to pay debts, was held to be subject to the wise's equity, on a bill to enforce the assignment.

• Anon. 1 Alk. Rep. 491. Grignion v. Griguion, 1 Hago. Eccl. Rep. 535. c2 Atk. Rep. 419. Chancery will interpose on a bill filed by, or on behalf of the wise, and restrain the husband or his assignees from possessing themselves of the property at law, until a suitable provision be allowed for her support. Van Epps v. Van Deusen, 4 Paige's Rep. 64. It has, at last, in New-York, become a settled rule of the courts of equity, that they will interfere and restrain a husband from recovering at law his wife's property, until he makes a provision for her. But this will not be the case if the wife lives apart from her husband without cause, or has a sufficient

and upon that doctrine, a suit at law for a legacy or distributive share, ought equally to be restrained, for such rights in action are of an equitable nature, and properly of equitable cognizance. The principle is tha chancery will lay hold of the property of the wife, as far as it may be in its power, for the purpose of providing a maintenance for her when she is abandoned by her husband; and in Dumond v. Mayee,a where the husband had abandoned his wife for many years, and married another woman, he was held to have forfeited all just claim to his wife's distributive share of personal estate inherited by her, and the same was appropriated by decree to her separate use.

This subject was considered, and the principal authorities reviewed, in the case of Kenney v. Udall.b It was there held, that the wife's equity attached upon her personal property whenever it was subject to the jurisdiction of the court, and was the object of a suit, in any hands to which it might come, or in whatever manner it might have been transferred. It makes no difference whether the application to the court for the property be by the husband, or his representatives, or assignees, or by the wife, or her trustee, seeking a provision out of the property. This equity is equally binding, whether the transfer of the property be by operation of law, under a

provision from other sources. Fry v. Fry, 7 Paige, 462. Martin v. Martin, 1 Hoffman's Ch. Rep. 462. But equity will not, at the suit of the wife, compel a settlement out of a chose in action bequeathed to her for life, but not expressed to be for her sole and separate life, against a particular aseignee for a valuable consideration. The contract of the husband is excluded only by words showing clearly that the gist was intended to be for her separate use, or in the existence of a case in which he omits duly to provide for her. Elliott v. Cordell, 5 Madd. Ch, Rep. 149. Stanton v. Hall, 2 Russ. f. Milne's Rep. 175. Tyler v. Lake, Ibid. 183.

• 4 Johns. Ch. Rep. 318. 55 Ibid. 464. 3 Cowen, 590. S.C. Durr v. Browyer, 2 M'Cora's S. C. Ch. Rep. 368. Duvall v. Farmers' Bank of Maryland, 1 Gill. f. Johns. Rep. 282. S. P.

« ForrigeFortsett »