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 that 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. Magee,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. 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 assignee for a valuable consideration. The contract of the husband is excluded only by words showing clearly that the gift 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. & Milne's Rep. 175. Tyler v. Lake, Ibid. 183. a 4 Johns. Ch. Rep. 318. 5 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. & Johns. Rep. 282. S. P. 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 consideration, 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.c 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 a Earl of Salisbury v. Newton, 1 Eden's Rep. 379. P. Wms. 458. Ex parte Thompson, 1 Deacon, 90. 143 b6 Johns. Ch. Rep. 178. Bosvil v. Brander, 1 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. But it is unnecessary to pursue this subject more minutely; and it is a vain attempt, says Mr. Justice Story, 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, 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 & Goold, 159, Cases temp. Plunket. Story's Eq. vol. 2, 635, 636. d Yohe v. Barnet, 1 Binney, 358. 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. f M'Elhatten v. Howell, 4 Haywood, 19. Duvall v. Farmers' Bank of Maryland, 4 Gill. & 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." 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,c) 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 wife'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 assignee 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. 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, and he can dispose of them as he pleases, and on his death they go to his representatives, as being entirely his property.d Garforth Butler's note, 304, to lib. 3 Co. Litt. 1 Vern. 396, note 5. 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. Cleland v. Cleland, Prec. in Ch. 63. Salway v. Salway, Amb. Rep. 692. Lord Eldon, 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 wife'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. Co. Litt. 351, b. 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 |