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commission of bankruptcy, or by act of the party to general assignees, or to an individual, or whether the particular transfer was voluntary, or made upon a good and valuable consideration, or in payment of a just debt. a The court may, also, in its discretion, give the whole, or part only of the property, to the wife, according to the
circumstances of the case. So, again, in Haviland •141
v. Bloom,b the same subject *came under consid
eration, and the rule in equity was considered as settled, that the wife's equity to a suitable provision for the maintenance of herself and her children, out of her separate estate, lying in action, was a valid right, and extended not only to property which she owned dum sola, but to property descended or devised to her duriug coverture. A new equity arises to the wife upon property newly acquired, and attaches upon it equally as upon that which she brought with her upon marriage.
The wife's equity does not, according to the adjudged cases, attach, except upon that part of her personal property in action which the husband cannot acquire without the assistance of a court of equity. The rule in equity does not controvert the legal title of the husband to his wife's personal fortune; and if he once acquired possession of that property jure mariti, though it should have been of an equitable nature, chancery will leave him in undisturbed possession of it. The claim attaches on that part of the wife's personal fortune for which the husband seeks the aid of a court of equity, or where he makes an assignment of her equitable interests; or the wife seeks relief in chancery against her husband and his assignees, in regard to her legal or equitable rights
* Earl of Salisbury v. Newton, 1 Eden's Rep. 379. Bosvil v. Brander, 1 P. Wms. 458. Ex parte Thompson, 1 Deacon, 90. Ex parte King, ib. 143
b 6 Johns. Ch. Rep. 178.
e In the case ex parte Beresford, 1 Dessau. S. C. Rep. 263, the court, after a full discussion, ordered a new settlement in favour of the wife on a new accession of fortune.
which they are pursuing. If the husband can acquire possession without a suit at law, or in equity, or by a suit at law, without the aid of chancery, (except, perhaps, as to legacies, and portions by will, or inheritance, as has been already suggested,) the husband will not be disturbed in the exercise of that right.b But it is unnecessary to pursue this subject more minutely; and it is a vain attempt, says Mr. Justice Story,c to ascertain by general reasoning, the nature or extent of the doctrine, for it stands upon the practice of the court. The cases in chancery to which I have referred, have incorporated into the equity jurisprudence of New-York, all the leading provisions and principles of the English courts of equity on this head : and though such a protection to the wife cannot be afforded in Pennsylvania, where there is no court of *chancery,d nor in New Hamp *142 shire, where equity powers, to a specific extent only, are conferred by statute upon the superior court of common law jurisdiction;e yet I presume it exists in most of the other states where courts are established with distinct equity powers, according to the English system, or with legal equitable powers united, according to the more generally prevailing practice in the United States. It exists in Maryland and Tennessee; and in the latter state protection is even afforded in their courts of law.f
. Walworth, Ch., in Van Epps v. Van Deusen, 4 Paige, 64. Fry v. Fry, 7 Id. 462. Martin v. Martin, 1 Hoffman's Ch. Rep. 462. 2 Atk. 419. 2 Story's Eq. 632. Clancy's Essay, 468.
• Howard v. Moffatt, 2 Johns. Ch. Rep. 206. Thomas v. Sheppard, 2 M'Cord's S. C. Ch. Rep. 36. In the matter of Anne Walker, 1 Lloyd g Goold, 159, Cases temp. Plunket.
€ Story's Eq. vol. 2, 635, 636.
a Yohe v. Barnet, 1 Binney, 353. The want of such a power in the Pennsylvania courts is deeply regretted by a very intelligent judge. In the matter of Miller, 1 Ashmead's Rep. 323. But the Orphan's court has, by statute, a limited jurisdiction over the wife's equity. • Parsons v. Parsons, 9 N. H Rep. 309.
M'Elhatten v. Howell, 4 Haywood, 19. Duvall v. Farmers' Bank of Maryland, 4 Gill. f. Johns. Rep. 282. In Tennessee it has been adjudged
In North-Carolina, if the aid of a court of equity be required by the husband, to enable him to take possession of his wife's property, he must make reasonable provision for her; and the rule is the same when his legal representatives or assignees claim it. But their decisions go no further, and the wife cannot, by a suit in equity, stop him, though he be insolvent, from taking possession, unless her claim he founded upon a marriage settlement.a The superior court of New Hampshire intimates that it may, perhaps, be authorized to apply the principle of sustaining the wife's equity, when the husband, or his assignee, asks the aid of the court to obtain possession of the distributive share of his wife.b
There is a difference as to choses in action belonging to the wife, whether the husband sues in his own name exclusively, or jointly with his wife. The principle of the distinction is, that if he brings the action in his own name alone, (as it is said he may for a debt due to the wife upon bond,“) it is a disagreement to the wife's interest, and implies it to be his intention that it should not survive her. But if he brings the action in their joint
that the wise's equity will be enforced: (1.) When the husband or his assignee is asking the aid of a court of equity to reduce her property into possession : (2.) At the suit of the wife or of her trustee, praying for the provision : (3.) When the trustee designs, or is willing to pay or deliver over the property to the husband or his assigned without suit. In that case all of them will be enjoined, at the suit of the wife, from changing the possession until provision be made. But if the husband or his assignee has already reduced the property into possession, a court of equity does not interfere. Dearin v. Fitzpatrick, 1 Meigs, 551. These are the settled principles on the subject in the English equity system.
a Bryan v. Bryan, 1 Badg. f. Dev. Eq. Cas. 47.
b See Parsons v. Parsons, 9 N. H. Rep. 309, 336, where Ch. J. Parker has examined the history and doctrine of the wife's equity, with accurate and elaborate learning.
• Lord Chancellor, in Oglander v. Baston, 1 Vern. 396. Howell v. Maine, 3 Lev. 403. But Mr. Preston, in his Essay on Abstracts of Title, vol. i. p. 348, condemns the doctrine in this case in Levinz, and denies that the husband can sue alone on a bond given to the wife alone.
names, the judgment is, that they shall both recover, and the debt survives to the wife. The judgment does not alter the property, or show it to be his intention that it should be altered. It is also the rule of equity, that if before marriage the husband makes a settlement on the wife, in consideration of her fortune, he is considered in the light of a purchaser of her fortune, and his representatives will be entitled, on his dying in his wife's lifetime, *to the whole of her things in action, *143 though not reduced to possession in his lifetime, and though there be no special agreement for that purpose. If the settlement be in consideration of a particular part only of her fortune, the right of survivorship in the wife will exist only as to the part of her property not comprised in the settlement, and not reduced to possession by the husband. The settlement must state, or import, that it was in consideration of the wife's fortune, and it must appear to be adequate to the purchase of her fortune, before it will bar her right of survivorship.b
(5.) As to personal property of the wife, which she had in possession at the time of the marriage in her own right, and not en autre droit, such as money, goods and chattels, and moveables, they vest immediately and absolutely in the husband,c and he can dispose of them as he pleases, and on his death they go to his representatives, as being entirely his property.d
* Butler's note, 304, to lib. 3 Co. Litt. i Vern. 396, note 5. Garforth v. Bradley, 2 Vesey, 677. Meredith v. Wynn, 1 Eq. Cas. Abr. 70, pl. 15. Packer v. Windham, Prec. in Ch. 412. Druce v. Dennison, 6 Vesey, 395.
b Cleland v. Cleland, Prec. in Ch. 63. Salway v. Salway, Amb. Rep. 692. Lord Eldou, in Druce v. Dennison, 6 Vesey, 395. The Master of the Rolls, in Carr v. Taylor, 10 Ibid. 579. The cases admit, that the settlement will not bar the wise's equity to a further settlement out of property accruing during coverture, unless it be made in consideration of her fortune, which she then has, or may thereafter be entitled to.
c Co. Litt. 351, b.
d By the statute law of Georgia, of 1789, the real estate belonging to the wife at the marriage, becomes vested in and passes to the husband in
II. The duties which the husband assumes : (1.) To pay her debts.
The husband is answerable for the wife's debts before coverture; but if they are not recovered during the coverture, he is discharged.a He is answerable for her debts only in virtue of the duty imposed on him to discharge all the obligations of the wife; and that his responsibility should cease after coverture ceases, is, in some cases,
rather against conscience; but then, as a compen*144 sation for the rule, it is to *be considered that the
charging the husband in all cases with the debts, would be against conscience also. It is a strict rule of law; which throws upon the husband, during coverture, all the obligations of the wife; and by the same rule of law, he is discharged after the coverture ceases, by the death of the wife. Courts of equity have held, that they could not vary the rule of law according to the fact, whether the husband had, or had not, received a portion with his wife, or charge his conscience in one case more than in the other. This is the meaning of the case of Heard v. Stanford,b according to Lord Redesdale's explanation of the rule on this point.c
The rule of law on this subject may operate very injuriously to creditors; for if the wife be largely indebted
the same manner as personal property. See infra, vol. iv. p. 29. There is a prevalent disposition in many of the states to enlarge the powers of the wife and abridge those of the husband over her separate property, belonging to her at marriage or subsequently acquired by her, and to substitute the policy of the civil law for that of the common law on the subject. Thus by the constitution of Wisconsin, adopted in 1846, all the real and personal property of the wife at the time of her marriage or acquired by her afterwards are to be her separate property. So the legislature of Arkansas have exempted all such property from liability for her husband's debts.
a He is liable for a breach of trust committed by the wife before marriage. Palmer v. Wakefield, 3 Beavan, 224.
b 3 P. Wm8. 409. Cases temp. Talb. 173.
< 1 Sch. of Lef. 263. Witherspoon v. Dubose, in court of appeals, in S. C. Law Jonrnal, No. 3, p. 366, S. P.