REDUCTION INTO POS WIFE'S intitled to £250 under the will of C, expectant upon the death of D. The executor of C, upon B's ap- SESSION OF plication, and with his wife's consent, paid the money CHOSES IN to B, he undertaking to pay to D the interest during ACTION. her life. The wife having survived D, who survived her husband, claimed by bill in equity the £250 against her husband's executors; but the bill was dismissed. But the husband's receipt or possession of his wife's choses in action must be in the character of husband, in order to defeat his wife's title to them upon surviving him. By husband's receipts, or the transfer of the funds to him. except his possession of it be as a trustee or executor. Thus, in a case (a) where a trustee and executor Instances. married one of the residuary legatees named in the will, it was determined that his possession of the testator's personal estate was to be considered as that of trustee and executor,-he having alone proved; so that his wife's share of the residue could not be sufficiently reduced into possession to prevent its surviving to her upon his death. Upon the same principle the case of Wall v. Tomlinson (b) was decided. There certain East India stock, belonging to the wife, was transferred into the names of her husband and another person, until trustees should be appointed, who were to hold the same upon certain trusts for the separate use of the wife, and which had been verbally agreed upon. The wife having survived her husband, the question was, whether the stock belonged to her, or to his legal personal representatives? And Sir William Grant, M. R., said, that the transfer of the stock to the husband merely as a trustee, could not be represented (a) Baker v. Hall, 12 Ves. 497. (b) 16 Ves. 413. INTO POS REDUCTION as a reduction into possession, which would intitle his representatives, for that it was made diverso intuitu. SESSION OF By husband's receipts, or the transfer of the funds to him. Semble, band's sole But it would seem that a transfer of the wife's stock into her husband's sole name, will be a reduction of it into his possession, and defeat her right by survivorship, because such a transfer is equivalent to a receipt of the money by the husband, and an act vesting the sole property in him. With respect to the releases or acquittances of the husband of his wife's choses in action, so as to extinguish her right of survivorship, it is to be remarked, that such is the interest which he acquires in her possession. property by the marriage, that he may release debts which were owing to her before its solemnization (a); also legacies absolutely given to her (b); her interest under the statute of distributions, and the like. Such acts he may do, although he and his wife be divorced à mensa et thoro; because the marriage still subsists (c). Of his ac rent accrued If, then, arrears of rent were permitted to accrue quittance for whilst the wife was single, and her husband gave an subsequent acquittance for what became due after the marriage, ly to arrears and then died, the discharge would prevent his wife then due. from recovering the arrears which were due at the time of the marriage; because they being a debt owing to the wife at the time of the marriage, the right to receive them was vested in her husband; his receipt, therefore, for rent posterior to those arrears, for which he gave an absolute acquittance, is a discharge of all arrears to the person charged (a) 2 Roll. Abr. 410. (b) Gilb. Eq. Rep. 88. 2 Roll. Rep. (c) Stephens v. Totty, Noy, 45. Cro. Eliz. 908. 134. with payment of the rent, not only against the hus- REDUCTION band but his wife (a). Yet, unless the acquittance INTO POS- CHOSES IN be under hand and seal, so as to be an estoppel, WIFE'S evidence may be given to prove that the prior arrears ACTION. remain unsatisfied; for it seems that the subsequent acquittance, if not under hand and seal, is merely a presumptive bar. (a) Morton v. Hopkins, Dyer, 271. Benl. 186. Effects of the releases and acquittances of husband. CHAPTER VI. HAVING in the last chapter considered what acts of the husband will and will not be a reduction into possession of his wife's choses in action which were immediately recoverable, we shall now further consider his power over them, together with his power over such others of his wife's choses in action as are in reversion or expectancy, by his release or assignment. In doing this, it is intended to treat upon the subjects under the following sections and subdivisions: I. The husband's power over his wife's choses in action by release and assignment at law and in equity. 1. At law. 2. In equity. II. The effect upon the wife's title by survivorship of her husband's assignment, or the law's transfer of her choses in action, which are immediately recoverable, or are in remainder or expectancy. 1. The effect upon the wife's title, as the survivor, of the assignment To assignees in bankruptcy, or under the insolvency of her husband, of her choses in action. 2. The effect of assignments BY such assignees upon such title; and of sales of reversionary interests. AND EQUIT 3. The effect of assignments by the husband of OF LEGAL I. The husband's power of release and assignment at law and in equity over his wife's choses in action. Independently of actual recovery and receipt of the wife's choses in action by her husband, there are other methods by which her title by survivorship may be defeated,—as by the assignment of them by her husband, or his agreement for the purpose, as before noticed (a). 1. Then with respect to the wife's personal property over which her husband has the sole and complete legal power of disposition, he may, as it seems, assign it at his pleasure. BY HUSBAND CHOSES IN The interests, amongst others, which are assign- Legal assignments. able at law, are the personal chattels of the wife in possession, legal terms for years, terms held in trust. What interests assignfor her, debts or sums of money secured by such able at law terms, elegits upon judgments issued before the by husband marriage, and, in analogy to this, decrees made in favour of the wife dum sola for money, and that she shall hold the premises until satisfaction, &c. (b). alone. an excep tion. But money of the wife secured upon a mortgage Wife's mortin fee, is not equally in the husband's power as gage in fee money secured by a term of years, so that the decisions in regard to the two are different; for a mortgage in fee the husband cannot dispose of. The (a) Supra, p. 175. (b) Vide supra, chap. 5, sect. 2; also Pre. Ch. 418. 3 P. Will. 200. |