husband will completely appropriate it, even though made without consideration. And if a single woman has a decree to hold and enjoy lands until a debt due her has been paid, known at the old law as an estate by elegit, and she afterwards marries, her husband may make a voluntary assignment so as to bind her.2 The right of appropriating the wife's chattels real is, therefore, to be distinguished from the right of reducing things in action into possession. The husband's interest in his wife's chattels real may be called an interest in his wife's right, with a power of alienation during coverture; and an interest in possession, since such chattels are already in possession, but lying in action. As the husband is entitled to administer in his wife's right when she is executrix or administratrix, he may release or assign terms for years or other chattels real vested in her as such. But if he be entitled to a term of years in his wife's right as executrix or administratrix, and have the reversion in fee in himself, the term will not be merged; for, to constitute a merger, both the term and the freehold should vest in a person in one and the same right.5 An exception to the husband's right by survivorship to his wife's chattels real occurs in case of joint tenancy. If a single woman be joint tenant with another, then marries and dies, the other joint tenant takes to the exclusion of her husband surviving her; for the husband's title is the newer and inferior one.6 When the husband succeeds to his wife's chattel real upon surviving her, or appropriates it during coverture, he takes it subject to all the equities which would have attached against her. In other words, being not a purchaser for a valuable consideration, he can claim no greater interest than she had. Thus, where the wife's chattel interest is subject to the payment of an anuuity, the husband must continue to make pay 1 Cateret v. Paschall, 3 P. Wms. 200. But see note to 1 P. Wms. 380. 2 Merriweather v. Brooker, 5 Litt. 256; Paschall v. Thurston, 2 Bro. P. C. 10. 3 Mitford v. Mitford, 9 Ves. 98. 4 Arnold v. Bidwood, Cro. Jac. 318; Thrustout v. Coppin, W. Bl. 801. 5 Co. Litt. 338 b; 1 Bright, Hus. & Wife, 98, and cases cited. 6 Co. Litt. 185 b. Where, during coverture, a lease for years is granted to the wife, adverse possession, which commences during coverture, may be treated as adverse either to the wife or to the husband. Doe v. Wilkins, 5 Nev. & M. 435. ment so long as the incumbrance lasts. And though he may not in all cases be bound on her covenant to make new leases, yet, if he does so, the equity of the annuitant will attach upon them successively.1 Where the husband survives the wife, the common law vests the title to her chattels real in him so completely that he need not take out letters of administration on her estate to secure his right.2 § 88. Wife's Chattels Real; Leases, &c.; Subject continued. The law enables the husband during coverture to defeat his wife's interest by survivorship by an absolute alienation or disposition of the whole term, either with or without consideration. And the same rule applies to the wife's trust terms as to her legal terms. In order to make it effectual, the right of the party in whose favor the disposition is made must commence in interest during the life of the husband; but it is not necessary that it should commence in possession during that period. Thus the husband, though he cannot bequeath these chattels by will, as against the wife's right by survivorship, may grant an underlease for a term not to commence until after his death; and this act will divest the right of the wife under the original lease so far as the underlease is prejudicial to such right. Nor need his disposition cover the whole chattel, since the disposition necessarily operates pro tanto. Nor need it be absolute, since a conditional disposition is good if the condition subsequently takes effect. And the law enables the husband to dispose, not only of the wife's interest in possession, but also of her possibility or contingent interest in a term, unless where the contingency is of such a nature that it cannot happen dur 5 1 Moody v. Matthews, 7 Ves. 183; Rowe v. Chichester, Amb. 719. On the question of contribution by annuitants, see Winslowe v. Tighe, 2 Ball & B. 204; Hubbs v. Rath, 2 Ib. 553. 2 Bellamy, Re, 25 Ch. D. 620. And see Standard Paint Co v. Mining Co., 133 Penn. St. 474. 31 Bright, Hus. & Wife, 98; Grute r. Locroft, Cro. Eliz. 287; Jackson v. McConnell, 19 Wend. 175. Tudor v. Samyne, 2 Vern. 270 (in correctly reported according to note, 1 Bright, Hus. & Wife, 99); Sir Edward Turner's Case, 1 Ch. Ca. 307; Packer v. Windham, Prec. in Ch. 412. 5 Grute v. Locroft, Cro. Eliz. 287; Bell, Hus. & Wife, 104, 105. 6 Sym's Case, Cro. Eliz. 33; Loftris's Case, Ib. 276; Riley v. Riley, 4 C. E. Green, 229. 7 Co. Litt. 46 b. But see 4 Vin. Abr. 50, pl. 14. ing his life. A distinction is, however, made between cases where the disposition is intended of the whole or of part of the property, and where it is intended as a collateral grant of something out of it. In the latter case the transaction will not bind the wife; for if she survive her husband, her right being paramount, and her interest in the chattel not having been displaced, she will be entitled to it absolutely free from such incumbrance.2 The husband may by other acts than express alienation divest his wife's title, and defeat her rights by survivorship in her chattels real. Thus, if the husband, holding a term in right of his wife, grant a lease of the lands covered by the term, for the lives of himself and his wife, the wife's term will thereby merge, and her right in it be defeated. Or if, while in possession, under a lease to himself and the wife, the husband should accept from the lessor a feoffment of the lands leased, the term would be extinguished and the wife's right along with it; for the livery would amount to a surrender of the term.4 This is in realuntil breach of condition the On the other hand, there are acts by the husband, which, although they amount to the exercise of an act of ownership, yet, as they do not pass the title, will not defeat the wife's right by survivorship. An instance of the latter is that of the husband's mortgage of his wife's chattels real; or, what is the same thing in equity, a covenant to mortgage. ity a disposition as security, and mortgagee has no further title. But, in order to protect the mortgagee's rights, equity treats the mortgage or covenant as good against the wife to the extent of the money borrowed; that once paid, the chattels will continue hers. After breach of condition, the mortgagee's estate becomes absolute; or, at least, he can make it so by foreclosure; and the alienation of the term being then completed at law, the wife's legal right by 1 Doe d. Shaw v. Steward, 1 Ad. & El. 300; 1 Bright, Hus. & Wife, 100. And see Donne v. Hart, 2 Russ. & My. 360. 4 Downing v. Seymour, Cro. Eliz. 912. And see Lawes v. Lumpkin, 18 Md. 334. 5 Bates v. Dandy, 2 Atk. 207; Bell, 2 Co. Litt. 184 b; 1 Bright, Hus. & Hus. & Wife, 107; 1 Bright, Hus. & Wife, 103. 8 2 Roll. Abr. 495 pl. 50. Wife, 106. As to the wife's disability to mortgage, see 101 Penn. St. 239. survivorship is defeated; subject, however, to the equity of redemption, where the husband has not otherwise disposed of that likewise. So, too, transactions, not constituting mortgages in the ordinary sense of the term, may yet be so construed in equity where such was their substantial purport. And while the intention of the husband to work a more complete appropriation will be justly regarded by the court, the mere circumstance of a proviso in the conveyance for redemption, pointing to a mode of reconveyance not in conformity with the original title, will not, it seems, debar the wife from asserting her rights by survivorship.2 Now, as to § 89. Wife's Real Estate; Husband's Interest. the effect of coverture on the wife's real estate. By marriage, the husband becomes entitled to the usufruct of all real estate owned by the wife at the time of her marriage, and of all such as may come to her during coverture. He is entitled to the rents and profits during coverture. His estate is therefore a freehold and a vested estate in possession. But it will depend upon the birth of a child alive during coverture, whether his estate shall last for a longer term than the joint lives of himself 1 See Pitt v. Pitt, T. & R. 180; 1 Prest. on Estates, 345. 2 Clark v. Burgh, 9 Jur. 679. And see In re Betton's Trust Estates, L. R. 12 Fq. 553; Pigott v. Pigott, L. R. 4 Eq. 549. As to the wife's equity for a settlement, however, it is held that where a husband mortgages the legal interest in a term of years belonging to him in right of his wife, no such equity arises on a claim to foreclose this mortgage against the husband and wife as defendants. Hill v. Edmonds, 15 E. L. & Eq. 280. Among the miscellaneous acts of the husband which will defeat the wife's survivorship to her chattels real, are the following: A disseverance of his wife's joint tenancy during coverture. Co. Litt. 185 b; Plow. Com. 418. An award of the term to the husband, if carried into effect. Oglander v. Baston, 1 Vern. 396; note of Jacob to 1 Roper, Hus. & Wife, 185, and cases com Co. mented upon. The husband's criminal and wife, or not; that is to say, whether he acquires the right of curtesy initiate, to be consummated on the death of the wife leaving him surviving. In the event of such birth, his interest lasts for his own life, whether his wife dies before him or not. If there be no child born alive, his interest lasts only so long as his wife lives. In either case, he has not an absolute interest, but only an estate for life, and his right is that of beneficial enjoyment. When his estate has expired, the real estate vests absolutely in the wife or her heirs, and the husband's relatives have no further concern with it.2 While, therefore, the husband has the beneficial enjoyment of his wife's freehold property during coverture, at the common law, the ownership remains in the wife. Herein her right becomes suspended, not extinguished, by her marriage. The inheritance is in her and her heirs. Consequently, the husband may collect and dispose of the rents. He may also sue in his own name for injury to the profits of his wife's real estate, as where growing crops are destroyed or carried off; for this relates to his usufructuary interest. But for injuries to the inheritance, such as trespass, by cutting trees, burning fences, and pulling down houses, and generally in actions for waste, the wife must be joined; and if the husband dies before recovering damages, the right of action survives to the wife. And if the wife survives her husband, she may commence such suits without joining his personal representatives. But the husband cannot prosecute such an action 1 See post, c. 15, Dissolution by Death, as to Curtesy. 2 Co. Litt. 351 a; 2 Kent, Com. 130; 1 Bac. Abr. 286; Junction Railroad Co. v. Harris, 9 Ind. 184; Clarke's Appeal, 79 Penn. St. 376; Rogers v. Brooks, 30 Ark. 612. The husband's rights and liabilities attach to property bought by himself and held in his name as trustee for his wife. Pharis v. Leachman, 20 Ala. 662. But not, as will be seen hereafter, to his wife's separate real estate. While the general effect of our marital legislation may be to destroy this common-law freehold of the husband, a statute may exempt the wife's property from the husband's debts without destroying his marital estate. Bozarth v. Largent, 128 Ill. 95. 8 The defendant to an action for forcible entry of land belonging to the wife cannot insist upon her joinder as a necessary party. Gray v. Dryden, 79 Mo. 106. 42 Kent, Com. 131; Weller v. Baker, 2 Wils. 423, 424; Beaver v. Lane, 2 Mod. 217; Bac. Abr. tit. Baron & Feme, K.; 1 Chitt. Pl. (6th Am. ed.) 85; 1 Bl. Com. 362; Illinois, &c. R. R. Co. r. Grable, 46 Il. 445; Thacher v. Phinney, 7 Allen, 146. |