of the wife remaining unadministered, are liable for her debts to her creditors, in preference to the creditors of the 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 distribution 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 distribution 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 Schuyler v. Hoyle. (d) 2 It was there shown, that the husband

(a) N. Y. Revised Statutes, vol. ii. p. 75, sec. 29.

(b) Butler's note, 304, to lib. 3, Co. Litt. Elliot v. Collier, 3 Atk. Rep. 526. Spencer, J., 6 Johns. Rep. 118. 1 Hagg. Eccl. Rep. 341. Betts v. Kimpton, 2 B. & Adolphus, 273. See, also, Hunter v. Hallett, 1 Edw. Ch. Rep. 388, and infra, pp. 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. Fulkinson, 14 Ohio Rep. 100. So in Connecticut, the husband, on the death of his wife, does not become entitled as heir or survivor to her personal property. He does not take as administrator, but the property goes to her administrator for distribution. Baldwin v. Carter, 17 Conn. Rep. 201.

(c) 3 Vesey, 246, 247. 14 Ibid. 381, 382. 15 Ibid. 537. 18 Ibid. 49, 55, 56. (d) 5 Johns. Ch. Rep. 196.

1 Lockwood v. Stockholm, 11 Paige's R. 87.

2 Bartlett v. Van Zandt, 4 Sandf. Ch. R. 396. Latourette v. Williams, 1 Barb. S. C. Rep. 9. In this last case it was held, that the pledge of a note of the wife by the husband, which he afterwards redeemed, was not such a reduction into possession as destroyed the interest of the wife. Harper v. Archer, 28 Miss. (6 Cush.) 212. And as to what constitutes a reduction to possession, see Holmes v. Holmes, 2 Wms. (28 Vt.) 765; Burr v. Sherwood, 3 Bradf. (N. Y.) 85; Corley v. Corley, 22 Geo. 178; Machem v. Machem, 28 Ala. 374; Gillespie v. Burleson, 28 Ala. 551; Lockhart v. Cameron, 29 Ala. 355; Lowery v.

* 137

may assign, for a valuable consideration, his wife's choses in action to a creditor, free from the wife's contingent * right of survivorship. The doctrine that the husband may assign the wife's choses 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. (a) 1 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

2

(a) Carteret v. Paschal, 3 P. Wms. 197. Bates v. Dandy, 2 Atk. Rep. 206. S. C. 1 Russell's Rep. 33, 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. & Walk. 472. Schuyler v. Hoyle, above cited. Kenney v. Udal, 5 Johns. Ch. Rep. 464. S. C. 3 Cowen's Rep. 590. Lowry v. Houston, 3 How. U. S. 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.

(b) Burnett v. Kinnaston, 2 Vern. Rep. 401. Sir William Grant, in Mitford v. Mitford, 9 Vesey, 87. Sir Thomas Plumer, in Johnson v. Johnson, 1 Jac. & Walk. 472. Jewson v. Moulson, 2 Atk. Rep. 420. Saddington v. Kinsman, 1 Bro. 44. Hartman v. Dowdel, 1 Rawle's Rep. 279.

Craig, 30 Miss. (1 George) 19; McNeil v. Arnold, 17 Ark. 154; Walden v. Chambers, 7. Ohio, (N. S.) 30; Needles v. Needles, 7 Ohio, (N. S.) 432.

The receipt of a wife's distributive share, by agents appointed under a power of attorney, executed to the husband by the wife, is a reduction by the husband. Turton v. Turton, 6 Maryl. 375.

1 Tuttle v. Fowler, 22 Conn. 58.

2 See ante, p. 118, (135,) note (1.)

*

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 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. (a) 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)1 It has

(a) Hilliard v. Hambridge, Aleyn'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.

(b) Mitford v. Mitford, 9 Vesey, 87. Jewson v. Moulson, 2 Atk. Rep. 420. Gayner v. Wilkinson, Dickens's Rep. 491. Saddington v. Kinsman, 1 Bro. Ch. 44. Van Epps v. Van Deusen, 4 Paige's Rep. 64. Fierce v. Thornely, 2 Simon's Rep. 167. Outcalt 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

1 Moore v. Moore, 14 B. Mon. (Ky.) 259.

been accordingly 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)

dum sola. Miles v. Williams, 1 P. Wms. 249, in K. B. Bosvil v. Brander, 1 P. Wms. 458, in K. B. Michell v Hughes, 6 Bing. Rep. 689. But in the late case of Mallory v. Vanderheyden, before Vice-Chancellor Parker, of the 3d circuit, New York Legal Observer for January, 1846, (No. 4, p. 4,) 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.

(a) Pierce v. Thornely, 2 Simon's 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. 207, and Hawkyns 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 valuable 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 Mitford 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. 70, the subject was discussed and reargued with great ability; and Sir Th. Plumer, in an elaborate opinion, declared his adherence to his former opinion, and carried his doctrine out broadly to the whole extent 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 trustees 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 re. mained reversionary.1 Sir William Grant, in Wright v. Morley, 11 Vesey, 12, thought there was great weight in the proposition of Lord Alvanley, that no assignment by the husband, even for a 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

1 To the same effect is Bugg v. Franklin, 4 Sneed, (Tenn.) 129.

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

as survivor would bar the assignee. In Ellison v. Elwin, 13 Sim. 309, the doctrine in the case of Purdew v. Jackson was reaffirmed by the vice-chancellor. Again, in Honner r. Morton, 3 Russell'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.1

These latter cases were reviewed in Siter and another, guardians of Jordan, 4 Rawle'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 Shuman v. Reigart, 7 Watts & 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 bonâ 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 wife, in respect to the marital dominion and power of the transfer of it, is held to be without foundation. The critical 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 the 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,2

1 In Elliott v. Cordell, 5 Madd. 149, the decision was against the right of the wife; aud this decision was approved by Lord Brougham, in Stanton v. Hall, 2 Russ. & My. 175; and by the vice-chancellor, in Tidd v. Lister, (1853,) 17 Eng. L. & Eq. R. 567.

It is held, in Alabama, that the husband's assignee for valuable consideration, is not entitled as against the wife to her choses in action, unless he reduce them to possession during the coverture. George v. Goldsby, 23 Ala. 326. Arrington v. Yarborough, 1 Jones, Eq. 72; but see Tuttle v. Fowler, 22 Conn. 58, and Manion v. Titsworth, 18 B. Mon. (Ky.)

582.

2 It is held in Pennsylvania, that a husband may assign for a valuable consideration the wife's choses in action, whether they be presently reducible or be reversionary interests or possibilities. Webb's Appeal, 21 Penn. 248. Smilie's Estate, 22 Penn. 130.