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tate for her life, or for the life of another person, the husband becomes seised of such an estate in right of his wife, and is entitled to the profits during the marriage. On the death of the wife, the estate for her own life is gone, and the husband has no further interest in it. But if she have an estate for the life of another person, who survives her, the husband becomes a special occupant of the land during the life of such other person. After the estate for life has ended, the land goes to the person entitled in reversion or remainder, and the husband, quasi husbaud, has no more concern with it. This estate the husband can only sell or charge to the extent of his interest in it, and his representatives take as emblements the crops growing at his death.
(3.) 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; except it be such an interest as the wife hath, by the provision or consent of her husband, by way of settlement. 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; 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 possession of the chattel real during the coverture, by a kind of joint tenancy with the wife.d
(4.) As to debts due to the wife, at the time of her mar、
a Co Lill. 46. b.
b Sir Edward Turner's case, 1 Vern. 7.
e Co. Litt. 351. a.
d Co. Latt. 351. b. Buller's note, 304. to Co. Litt. lib. 3. 351. 2, 1 Rol. Abr. 345. pl. 40.
riage, by bond, note, or otherwise, and which are termed choses in action, the husband has power to sue for, and recover the same; and when recovered, and reduced to possession, the money becomes absolutely his own. So, he has power to release, and discharge, and assign the debts, and to change the securities, with the consent of the debtor. But if he dies before he recovers the money, or alters the security, 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. 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. By the statute of distributions of 22 and 23 Charles II., and the 25th sec. of the stat. of 29 Charles II. c.3. in explanation thereof, and which have been re-enacted in this state," 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 marin, 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 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 the right of administration follows the right of the estate,
a Laws of N. Y. sess. 36. ch. 75.
b Whitaker v. Whitaker, 6 Johns. Rep. 112.
c 3 P. Wms. 409. 411. Cases temp. Talb. 173. S. C. Heard v. Stanford.
and is to be granted to the next of kin of the husband. 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, he would be deemed a mere trustee for the representatives of the husband.a
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.b
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. 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 survivorship. But a voluntary assignment by the husband of the wife's choses in action, without consideration, will not bind her if she survives him. 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 by a suit in his own name, or if he releases the debt, 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
a Butler's note, 304. to lib. 3 Co. Litt. 6 Johns. Rep. 118.
b3 Vesey, 246, 247. 14 Vesey, 381, 382. 15 Vesey, 537. 18 Vesey, 49, 55, 56.
c 5 Johns. Ch. Rep. 196.
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, the wife, as survivor, would take the benefit of the 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.
The equitable interests of the wife depend upon the same principles as her choses in action, in respect to survivorship, and she is only bound by an assignment for a valuable consideration. A general assignment in bankruptcy passes her property, 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. It has 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,b
a M Dowl v. Charles, 6 Johns Ch. Rep. 132.
b Mitford v. Mitford, 9 Vesey, 87.
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, he must do what is equitable, by making a reasonable 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. 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; but I believe no case has gone the length of interfering with the husband's suit at law.
Chancery has never gone further than to restrain the husband from proceeding in the ecclesiastical courts for the recovery of the wife's legacy, until a provision was made for her; 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 hus
a Howard v. Moffatt, 2 Johns. Ch. Rep. 206. 1Eden's Rep. 67. 370, 371. 2 Alk. 420, 421, 422. 11 Vesey, 17. 20, 21. 1 Madd. Ch. Rep. 362. Clancy's Essay, passim.
b 2 Atk. 419.