ASSIGNMENT OF WIFE'S RE CHOSES IN ACTION. terests by a particular assignment for a valuable consideration, are either upon questions between her VERSIONARY and general assignees under her husband's bankruptcy; or, in instances where there were no decisions upon the point, and the Court merely declined to act upon the wife's consent so as to prejudice the question of her title by survivorship before the period arrived when it would arise, viz. upon her husband's death, as will appear from the cases after stated. Effect of, upon her title by survivor ship when made to a particular assignee for value. In Grey v. Kentish (a), the wife was intitled to a share of South Sea annuities subject to her mother's life-interest, and to the contingency of her (the wife) being living at her mother's death. The husband became a bankrupt, and died before the mother. His wife petitioned, as surviving him and her mother, to have the share transferred to her; and Lord Hardwicke so ordered against the assignees under the bankruptcy; and upon the principle, as it would seem, before stated, in regard to such class of assignees (b). No particular objection was taken to their claims, on the ground that this was a contingent reversionary interest, nevertheless his Lordship declared, as it was before observed, that although the husband could not at law assign a possibility belonging to his wife, yet that a Court of Equity would support such an assignment for a valuable consideration. Gayner v. Wilkinson (c), before Lord Bathurst, was another case between the surviving wife and the assignees of her husband. The wife was intitled to (a) 1 Atk. 280. Ed. by Sanders. (b) Vide supra, p. 223. (c) 2 Dick. 491. 1 Bro. C. C. 51. S. C. in notes. MENT OF CHOSES IN Her examin a share in a sum of money expectant upon the death ASSIGNof A, if the wife were then living. The husband WIFE'S REbecame a bankrupt, and died, after surviving A, VERSIONARY leaving his wife the survivor. The share was de- ACTION. creed to belong to the wife by his Lordship, dismissing the bill against the assignees; but the decree ation and conwas made, as it would seem, upon the principle, that sent in Court. no act had been done in the husband's lifetime to reduce the fund into possession, as he or his assignees had power to do after the death of A, and not upon the inability of the husband or his assignees to assign the same for value to bind the wife's right by survivorship. As to wife's Court to the passing of sionary pro consent in her rever 4. In considering the unsettled question, when the wife will be permitted to consent in Court as to the disposal of her reversionary personal property, those cases which relate to personal estate settled to her separate use and appointment must for the present perty. be excluded, since the principles applicable to them do not apply to this inquiry.-Suppose, then, a married woman to be intitled to personal property, or to the interest of it, absolutely or for life, after the death of A; can she, during her marriage with B, consent to the disposition by her husband of her interest against her own title in the event of surviving him? In the most modern cases her power to do so has been doubted. In other cases her consent has been taken, and no doubt entertained of her having power, but some of them it is conceived have gone farther than any principle can warrant. that It is presumed that the principle applicable to correct determinations upon this subject is thisthat when property is so given to the wife, either in remainder or contingency, as that the husband may ASSIGN MENT OF CHOSES IN release it at law (a), as in the instance above sup WIFE'S RE- posed; if he assign it for value, the assignment will VERSIONARY bind the wife in equity; so that her consent, by way of confirmation and to waive her title to a settlement, ought upon such principle to be received and reation and con- corded. But that when the wife's consent is offered sent in Court. to pass her reversionary interest in analogy to a fine Her examin at common law, in favour of the husband or of his assignee, without a valuable consideration, the Court must decline to receive it, because no analogy between the two acts exists (b), they differing both in forms and principles; and because the property is not assignable at law, and there is no consideration to induce a Court of Equity to act or interfere. It is probably to the want of attention to this distinction that the discordant adjudications to be found in the cases may be attributed. The above principle will support Lord Alvanley's decree in Hewitt v. Crowcher (c), in the year 1800, which states that the wife being present in Court and examined, and desiring that the contract should be carried into execution, it was decreed accordingly. But such principle will not support the case of Butler v. Duncombe (d), in which the Court ordered upon the examination of the wife a moiety of her portion, payable at her mother's death, to be sold or disposed of at her husband's pleasure. With the distinction above taken agrees the very modern case of Pickard v. Roberts (e). A testator (a) 2 Roll. Rep. 134, et vide ante, p. 238. 8 Ves. 174. (c) Stated 12 Ves. Jun. 175. (e) S Mad. 384. (b) 10 Ves. 587. (d) 2 Vern. 762. MENT OF CHOSES IN gave personal estate to trustees in trust to pay the ASSIGNinterest to his wife for life, and after her death to WIFE'S REmake equal division of the fund among his children VERSIONARY who should attain the ages of twenty-one years. He ACTION. at his death left three children and his wife surviving Her examinhim. The widow made a gift of her life interest to ation and conA, the husband of B, one of the children, and they three petitioned that the reversionary interest of B who had attained twenty-one, should be paid to her husband A, B and the widow also consenting. But the Vice Chancellor refused to make the order. It is observable that in the last case the consent was offered to pass the wife's reversionary interest to her husband, in the absence of any power enabling her to dispose of such an interest, and whilst under the disability of coverture, without any valuable consideration, and, as it seems, upon the supposed analogy between her examination and consent in equity and a fine at law, an analogy which his Honour observed was always disclaimed in a Court of Equity. The case which followed Hewitt v. Crowcher, before referred to, was Woollands v. Crowcher (a). There the wife was intitled, amongst other property, to interest upon a share of £1225 stock for her life, expectant upon the death of A. The husband and wife agreed to sell this reversionary interest for £180, but the purchaser required the wife's consent to be expressed in Court to the transaction; in order to obtain which the husband and wife filed a bill for a performance of the contract. But Sir William Grant would only take the wife's consent de bene sent in Court. (a) 12 Ves, Jun. 174. ASSIGN MENT OF WIFE'S RE- CHOSES IN esse, so as not to preclude the question as to her title by survivorship, if it should arise in that event happening. Upon that occasion his Honour said, that the effect of an assignment upon reversionary property had been doubted, and referred to the arguation and con- ment of Mr. Madocks in Saddington v. Kinsman (a), as to the Court not anticipating future property; Her examin sent in Court. The present disposition of the Court is not to take wife's consent to part versionary interests. but he admitted that other cases had said, that the It will occur to the reader, that in the last case the wife's interest was such, as her husband might have released (b); for it was an interest which might have fallen in during the marriage, viz. by A's death. with her re- It seems, therefore, singular that when the husband, instead of exercising his legal power, assigns the property for value, a Court of Equity should interpose obstacles in not permitting the wife to confirm the transaction by examination and absolute consent. Indeed the present disposition of the Court is not to take the absolute consent of the wife to the passing of her reversionary interest to a purchaser from her husband, but de bene esse only; and for the reason assigned by Sir William Grant in the above case of Woollands v. Crowcher, viz. because of the doubt now entertained as to the validity of the husband's assignment for value of his wife's reversionary property against her title by survivorship; and therefore not to prejudice her right if she were the survivor, and the Court should decide the question in her favour. (a) 1 Bro. C. C. 44. (5) Ante, p. 238, and 1 Salk. 115. |