RIGHTS OF HUSBAND IN CHOSES IN His title to arrears of rents. Rights of husband in his wife's choses in action. First. The effect of an attempt only to reduce them into possession, or at least an incomplete act for the purpose. Secondly.of actions at law and suits in equity to vest them in the husband. Thirdly.—of awards, and the wife's agreement in pais pendente lite upon her title as the survivor; and, Fourthly. The effect upon the same right, of the receipt of the money by, or transfer of the funds to the husband, and also of his release of them. 1. Property falling under the description of choses in action of the wife, are debts owing to her, arrears of rents, legacies, residuary personal estate, money in the funds, &c. Marriage is only a qualified gift to the husband of his wife's choses in action, viz. upon condition that he reduce them into possession during its continuance; for if he happen to die before his wife without having reduced such property into possession, she, and not his personal representatives, will be intitled to it (a). In Scawen v. Blunt (b), A was intitled under the will of C to real estates for life, but if she married, the fee simple was given to her; if she did not marry, the property was given over after her death to B, the wife of D, and her heirs. The estate was sold with the consent of all persons interested in it, but in the conveyance no trust was declared of the (a) Co. Litt. 351. Nenny, 3 Ves. 467. (b) 7 Ves. 294. See also Langham v. HUSBAND IN HIS WIFE'S ACTION. purchase money, which was paid to A, and by her RIGHTS OF delivered to trustees, who invested it in stock, and the interest of it was paid to A, who was unmarried CHOSES IN when the bill was filed. B survived her husband D, and bequeathed to A all her personal estate. Sir His title to arrears of William Grant, M. R. determined, that the rights of rents. the persons named in the will in the stock were the same as they had in the land under the same will, upon the doctrine of resulting trusts; that the stock was in the nature of a chose in action, which not being reduced into possession by D, survived to his wife B, and passed by her will to A, who thereby became intitled to the money absolutely. But if the husband survive his wife, then he, as When he survives her. her administrator, will be intitled to all her personal estate which continued in action or unrecovered at her death. And although he die before all such property be recovered, yet his next of kin will be intitled to it in equity. But the wife's next of kin will be intitled to letters of administration, de bonis non, &c. of her estate not received by her husband during his life (a); they, however, will be trustees of what they receive under them for the next of kin of the husband (b). With respect to the husband's title to arrears of rent, it has been observed in the second section (c), that if the husband die before his wife, and rent is in arrear, which was reserved to them jointly, she, as it was considered, will not only be intitled to the ac (a) The practice of Doctors Commons is against Mr. Hargrave's opinion in his Law Tracts, p. 475. (b) 1 P. Will. 378–381. Humphrey v. Bullen, 1 Atk. 458. Elliot v. Collier, 3 Atk. 526. c) Supra, p. 170. Arrears of rent: in what cases they belong to the husband or wife sur viving. HUSBAND IN RIGHTS OF cruing rent, but also to that in arrear, but that if she were not a party to the derivative lease, or if she were a party and the rent was reserved to the husband alone, then that the arrears and future rent would belong to her husband's representatives. His title to arrears of rents. Remedy for surviving husband to recover rent in arrear after his So also the arrears of a rent service, of which the wife was, or of which she and her husband were seised, or of a rent granted to both of them during the life of the wife, will belong to her if she survive him (a); because the principals which survived to her carried also all that was due in respect of them (b). But if he be the survivor, then he becomes intitled to the arrears as her administrator, as before mentioned (c). In a case where the wife and her second husband demised lands, which she held in dower from her first husband, for a term of years, reserving a rent; the rent became in arrear, and then the wife died. Her second husband is intitled to the arrears, and not the heir of the first husband, who cannot claim them, since he is a stranger to the lease (d). It must be noticed that at common law, if the husband seised in fee, fee-tail, or for life, in right of his wife, of a rent-charge, did not recover during his wife's life arrears which became due to her previously wife's death, to their marriage, he could not after her death the marriage. compel payment of them; because they being in action only before the marriage, the law merely gave due before (b) Temple (a) Co. Litt. 351. Brown v. Dunnery, Hob. 208. v. Temple, Cro. Eliz. 791. Roll. Abr. 350, pl. 4 and 5. Ambl. 692. (c) See 29 Char. 2, c. 3, s. 25. 1 Roll. Abr. 345, pl. 35. Brown v. Farndell, Carth. 51. (d) Bro. Tit. Rents, fo. 297 b, pl. 10. SESSION OF CHOSES IN ACTION. him the power of recovering them whilst his wife REDUCTION lived (a). But this inconvenience is now remedied INTO POSby the statute of Henry the eighth (b), which de- WIFE'S clares, that "if any man who now hath, or hereafter shall have, in right of his wife, any estate in fee simple, fee-tail, or for term of life, of or in any rents or fee-farms, and the same rents or fee-farms now be, or hereafter shall be, behind or unpaid in the said wife's life; then the said husband, after the death of his wife, his executors and administrators, shall have an action of debt for the said arrearages against the tenant of the demesne that ought to have paid the same, his executors or administrators; and also may distrain for the same, in like manner and form as he might have done if his wife had been then living" (c). It seems that copyhold lands charged with a rent Copyholds. are within the provisions of the statute (d). 2. We shall now proceed to consider what will and will not be such a reduction by the husband into possession of his wife's choses in action recoverable immediately, as will defeat his wife's right to them by survivorship. And, First. It is to be ascertained, what acts in pais will not be a reduction into possession of the choses in action so as to bar the widow of her right to them. duce into Upon this subject it is to be observed, that a mere Mere intenintention to reduce the wife's choses in action into tion to repossession will be insufficient. The acts to effect possession that purpose must be such as to change the property in action in (a) Co. Litt. 162 b, 351 b. (b) 32 Hen. 8. chap. 37. sect. 3. (c) See 4 Rep. 51 a. (d) Gilb. Ten. 187. wife's choses sufficient. REDUCTION in them, or in other words must be something to devest the wife's right, and to make that of the husband absolute; such as a judgment recovered in an action commenced by him alone, or an award of execution upon a judgment recovered by him and his wife, or receipt of the money, or a decree in equity for payment of the money to him, or to be applied for his use (a). A mere appropriation therefore of the fund will be insufficient. Thus in Blount v. Bestland (b), A bequeathed to B, the wife of C, £600, to be paid by the executrix within twelve months after A's death, and appointed D executrix. About a year after A's death, C died, having by will disposed of the legacy of his wife, viz. to his wife B for her life, and afterwards amongst his children; he then made some trivial provision for his wife. B, having two children by her deceased husband, married E. B and E instituted a suit against the executrix of A and the executor of C (B's first husband) and B's two infant children, claiming the legacy of £600. The executrix of A set forth in her answer, which was supported by depositions, that as executrix she became intitled to £600 secured to the testatrix, her executors, &c. upon a mortgage of the freehold estates of Wissendine, in the county of Rutland, belonging to her, the defendant's mother, and that the defendant, considering herself liable to pay C (B's first husband) the legacy of £600, had some conversation with C in relation thereto a short time after the expiration of twelve months from the testatrix's death, and the |