ASSIGN MENT OF CHOSES IN to his own express stipulation upon the marriage. The authority of this case has been questioned, as it VERSIONARY might be expected, by modern judges (a); yet it seems to have had effect in producing similar decrees in some subsequent cases (b): but they must fall with their principal, and all of them appear to have been over-ruled by the contrary decisions before stated and referred to. Her appoint ment when necessary to pass the property. But if she can execute the power during the marriage, and does so, this will de feat her re versionary interest. The case of Frederick v. Hartwell (c), decided by Lord Kenyon previously to M'Cormick v. Buller, differs from it in these important particulars; that the property was not the subject of settlement upon the marriage, and the power to appoint was not postponed till after the marriage must have determined, but it might have been executed by immediate disposition of the fund, at any time during the coverture. The subject was a bequest by a stranger to the wife's separate use for life, and after her death, in trust as to the capital, as the wife should by deed or will appoint, and in default of appointment, for her absolutely; she, therefore, might defeat her ultimate interest by exercising her power of appointment. She did so, by appointing by deed the fund to her husband. They filed a bill for a transfer to him, and upon her examination and consent in Court, it was ordered accordingly. In this case it appears that the whole property was under the wife's dominion during the marriage. It did not depend, or was not intended to depend upon the contingency of her being the survivor, as (a) See the cases of Nevison v. Longden, in the Exchequer, in the year 1800. Sperling v. Rochfort, 8 Ves. 174. Richards v. Chambers, 10 Ves. 583–585. (b) Ellis v. Atkinson, 3 Bro. C. C. 565, and Guise v. Small, 1 Anstr. 277. (c) 1 Cox Rep. 193. MENT OF CHOSE IN Her appoint ment when necessary to pass the perty. pro in M'Cormick v. Buller; but the power was so given ASSIGNas to authorise her, by executing it, to make an WIFE'S REimmediate disposition of the property, and even in VERSIONARY favour of her husband, which she did accordingly. ACTION. The Court, therefore, acting upon the appointment, and her consent, necessarily ordered the transfer. Upon the same principle, the case of Newman v. Cartony may be reconciled, if the wife made an appointment; but which does not appear in the short note of the report (a). So that when the wife takes an estate for life, with a power of immediate disposition of the property, and in default of appointment, to herself absolutely, it is presumed, that if she execute the power in favour of her husband, and consent to waive her right to a settlement, the Court will order an immediate transfer; but not without But the her having executed the power; otherwise the Court, be executed. by her mere consent, would be authorising her to pass an interest in her property which could not possibly fall into possession during the marriage, viz. her interest in default of appointment, and to do which the Court has no jurisdiction, as before appears. power must amount of But in all cases where the interest of the wife is And the such, that the Court will accept her consent to the the fund aspassing of it, the property must be first ascertained, certained. and the amount clearly known. Thus in Edmonds v. Townshend (b), in answer to a proposal that the wife's consent might be taken for the whole amount of the fund, without deduction, which would cover any less sum to which by abatements it might be reduced, the Court of Exchequer (a) 3 Bro. C. C. 346—notis. (b) 1 Anstr. 98. ASSIGN MENT OF WIFE'S RE said, "that would be in effect taking her consent now to a sum to be ascertained at a future time, and VERSIONARY be thereby depriving her of the power of changing her mind in the interim, which ought not to be done." CHOSES IN ACTION. And in Sperling v. Rochfort (a), Lord Eldon said, it was settled, that whilst the property was unascertained, the wife's consent was not to be asked by the Court; and that whilst the Court could not state ⚫the amount of the property, it would not address to her any question, or speculate upon what might be her inclination. Upon this want of certainty in the amount of the funds, his Lordship pronounced his decree in that case. (a) 8 Ves. 180. CHAPTER VII. HAVING in the two last chapters treated upon the husband's interest in and power over his wife's personal estate, it is necessary to consider under the same title, when a Court of Equity will modify and restrain that power, by requiring the husband to make a settlement in favour of his wife and children; also her equity when he refuses to do so; and her title to maintenance. It is proposed to discuss these subjects in this 1. Against her husband; and her character as 4. When payment or transfer of the funds to effect. II. The rights of husband and wife in her choses in action, when he refuses to make any settlement upon her, or when he deserts her, or when hè compels her to quit his house. 1. When he refuses to make a settlement upon his wife, but maintains, or is desirous of supporting her. 2. When he deserts her, or compels her to quit WIFE'S CHOSES IN Her equity for a settle ment. Difference between a legal and an equitable as signment in regard to his house, and the rights of her creditor upon her equitable property in such cases. 3. When the wife, without a sufficient cause, withdraws from, or refuses to cohabit with her husband; and 4. The effect of her misconduct upon her equity for a maintenance. It has been observed, that the choses in action of the wife which are assignable at law, the husband may assign at his pleasure; and it is conceived that persons claiming such species of his wife's personal property, by conveyance from him, either as volunteers or for valuable considerations, will be intitled to hold them exempt from any right of his wife to a settlement, since a Court of Equity will not interfere at her instance, in order to procure a provision for her out of the assigned property. In thus declining to interfere, Courts of Equity are guided by the rules of law, according to which those Courts hold that where the law allows of an assignment, they will not entertain jurisdiction for wife's title to the purpose of depriving the assignee of the full benefit of his legal title, when he is under no necessity of seeking any relief or discovery from a Court of Equity (a). a settlement. But if the husband or his assignee have no title at law to recover the wife's property, as where it is an equitable interest; in such case, as they are obliged to apply to a Court of Equity for the recovery of it, that Court will (except in the instance of a trustterm (b)) impose terms upon them. It will stipulate, (a) 2 Ves. Jun. 608, 682. Ed. by Raithby.. (b) 1 Vern. 7-18. 2 Vern. 270. |