quiry more immediately useful presents itself to our notice. The transactions hourly arising out of the relation of husband and wife are so numerous and complex, that the existence of a doubt on the legal effect of any of them, is a great practical evil; in removing which we shall endeavour to assist, by extracting the principles of the cases relating to the point we have selected for discussion. The courts of equity, in dealing with such property of a married woman as comes under the denomination of a "chose in action,” have ever professed to observe in their decisions an analogy to the rule of law which leaves to a wife surviving her husband, the full benefit of that property, unless it shall have been "reduced into possession" by the husband during the coverture.1 They have at the same time, in recognizing and enforcing assignments of choses in action (if made for valuable consideration), proceeded directly in opposition to another legal principle; which, with a view of preventing litigation, forbids the transfer of interests of that nature. Hence the effect of an assignment of a married woman's choses in action has been frequently, during a long series of years, a subject of doubt and discussion in the courts of equity. Parties interested under assignments of various descriptions, have struggled, by means of the jurisdiction of those courts, to estab lish their claims to personal property of this nature belonging to married women, in opposition to the legal right by survivorship of the latter. Availing themselves of the determination of the courts of equity to support assignments of choses in action, those parties have pressed them to proceed from the open infringement of one legal principle, to the virtual abolition of another; by putting such an "equitable" construction upon that requisition of the law by which the wife's choses in action must be "reduced into possession," as would bring assignments of them within the terms of the rule. Amidst the multitude of decisions upon this subject, some of which overturn the preceding, and many of which appear to have been decided upon irreconcilable principles, it is satisfactory to observe that the courts of equity have in later times become more and more anxious to preserve from innovation the an 1 Co, Lit. 351 a. 2 Ibid. 214. a. Ibid, 232. b. Butl. No. 1. cient legal rule in favour of the wife; and to restore it, where it had been violated, to its primitive integrity. One question with reference to it, appears to some to be still open to discussion; namely, the effect of an assignment by the husband for valuable consideration of his wife's legal choses in action, as against the wife surviving. In We propose, therefore, succinctly to consider, with reference to the terms of the rule, and the principal decisions bearing upon this question, what ground there is for supposing such an assignment to be good in equity, as against the wife surviving, in the event of the husband's dying before the assignee shall have gained possession of the property. order to simplify the inquiry, it will be proper to exclude from it any notice of the effect of a settlement before marriage, by the husband upon his wife, in rendering him (in equity) a purchaser of her choses in action; and also to avoid touching upon that (until lately) much contested ground, the effect of an assignment of the wife's reversionary or contingent choses in action. The doctrine of the law is thus laid down by Lord Coke.— "Marriage is an absolute gift of all chattels personal in possession in the wife's own right, whether the husband survives the wife or no; but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them unless he and his wife recover them."1 It is thus expressed by a modern writer on the law of husband and wife. "Marriage is only a qualified gift to the husband of the 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 entitled to it." The first of these propositions sufficiently denotes what description of property is the subject of our present consideration; and the terms employed in both in stating the requisition of the law respecting it, are so plain as to seem to require no explanation. Some legal writers, however, have thought it necessary to tell us" what is a reduction into possession ;” and, classing with the actual receipt of the property, certain other Co. Lit. 351 a. 21 Roper's Law of Husband and Wife, 204. 2d edit. acts and proceedings, not attended with the occupation of it, have assumed in the outset, that the law has employed the terms "reduction into possession," in a technical sense, contradictory to their primitive signification. If there were any established modes by which property of the wife remaining "in action" at the time of the husband's decease (unaffected by the operation of a settlement before marriage) could be vested in his representatives, to the exclusion of the wife, the simplest course would be, after laying down the rule, to state these modes of acquisition as exceptions to it. But to state, as instances of reduction into possession, acts unattended by occupation of the property, is most unnecessarily to bring upon the phraseology of the law the highest reproach which can be cast upon language employed to express "rules of civil conduct" for the governance of the community, namely, that of being an arbitrary jargon in which the terms employed sometimes signify the reverse of what they convey to the understandings of the community. Thus a learned writer1 has laid it down that" the acts to effect the purpose of reducing the wife's choses in action into possession must be such as to change the property in them, or in other words, must be something to divest 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 to his use." There appears to be here an inaccuracy of classification which may lead to confusion of ideas, and to conclusions not merely erroneous, but prejudicial to the rights of innocent parties. A chose in action is defined to be property recoverable by suit or action at law. Now the effect of a judgment or decree is to change the nature of the subject matter. The property ceases to be a thing for the recovery of which an action or suit must be brought, and is thereby, and not by any conceivable effect upon the possession, taken out of the application of the rule which gives to the wife surviving, such property originally her's as remains in action" at the time of her husband's decease. As on the contrary, in the case of an assignment of a chose in action, that 1 1 Roper, Husband and Wife, 208. 2 See 2 Blac. Com. 396. 66 is, of the husband's right to reduce the thing into possession, there is (as the very terms imply) the same necessity on the part of the assignee, as on that of the assignor, of bringing an action for the recovery of the possession, we cannot, without absurdity, attempt (as has been sometimes done) to reason from the effect of a judgment, or decree, to that of a transfer of the right of action. That an intention on the part of the husband to reduce the "chose" into possession, or his actually deriving a pecuniary advantage from it, short of the actual reduction of the whole, (as by receipt of part, and of interest on the residue) will not bar the wife's claim, is settled. If, therefore, the assignment of the wife's chose in action for valuable consideration defeats the wife's title by survivorship, it must be upon grounds peculiar to itself. It was formerly contended, and several times decided, that even an involuntary assignment, (as in case of bankruptcy) defeated the right of the wife. Thus in Bosvil v. Brander,* (in 1718) where a feme mortgagee in fee married a person who became a bankrupt, and died, the widow brought her bill against the assignees for recovery of the title deeds. Sir Joseph Jekyll, after deciding first in favor of the widow, ultimately dismissed her bill. He grounded his judgment upon a distinction now clearly untenable, and at the same time admitted a principle which seems irreconcilable with his decision. "It might" he said, "have been a matter of different consideration, if the assignees had been plaintiffs in equity, and desired the aid thereof to strip an unfortunate widow of all that she had in the world; towards the doing of which equity would hardly have lent any assistance, because the assignees claiming under the bankrupt husband could be in no better plight than the husband could have been." Even so late as Pringle v. Hodgson, it was held by Lord Rosslyn, that, " the question of survivorship was quite laid aside by the bankruptcy." On the other hand, Lord Hardwicke in Grey v. Kentish, and Lord Bathurst in Gayer v. Wilkinson,6 decided in favor of the wife against the assignees. At length it was solemnly decided by Blount v. Bestland, 5 Ves. 515. 3 1 P. Wms. 458. 4 3 Ves. 617. 61 Bro. C. C. 50. n. 2 Dick. 492. 2 Nash v. Nash, 2 Madd. 133. 5 1 Atk. 280. S. C. 1 P.W. 459. n. Sir William Grant in Mitford v. Mitford, that an assignment in bankruptcy does not bar the legal right of the wife surviving; upon the principle, that "the assignment from the commissioners, like any other assignment by operation of law, passes the bankrupt's rights precisely in the same plight and condition as he possessed them." The principles laid down by Sir William Grant in his elaborate judgment, are very important with reference to the present question, "With respect to choses in action," he said, "they are not assignable at law, consequently the husband's assignment of them cannot prevent their legally surviving to the wife. In strict analogy, therefore, equitable interests of the nature of choses in action ought not to be affected by his assignment. But in equity a distinction seems to have been made between a voluntary assignment, and an assignment for valuable consideration. The wife surviving is not bound by his voluntary assignment. That was determined in Burnet v. Kinaston, which case has been ever since adhered to, and acted upon." The "equitable interests" here mentioned as being assignable for valuable consideration, we may conclude to be, funds in court, or in the hands of trustees, legacies, residuary estate, and the like. Even with respect to these equitable choses in action, as they are called, Sir Thomas Plumer seems to have considered the decisions of the courts of equity somewhat anomalous in establishing assignments of them against the wife surviving. In Johnson v. Johnson,3 speaking of a fund in court belonging to a married woman who had survived her husband, he said: "If it were now a new point, it would be difficult to understand how the assignee could be in a better situation than the husband himself; for the assignment does not reduce it into possession, it still remains a chose in action, and its being a chose in action gives the wife a right by survivorship. But it is too late to consider this; for it is decided that an assignment for valuable consideration being a disposition of the property, is sufficient to bar the right of the wife surviving. It does not, however, take away her equity."5 It is 31 Jac. & Walk. 476. 19 Ves. 87., and see Carr v. Taylor, 10 Ves. 578. |