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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 writer 1 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 Roper, Husband and Wife, 208.
2 See 2 Blac, Com, 396.
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 questioit 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, decided in favor of the wife against the assignees. At length it was solemnly decided by 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, 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.” It is
Blount v. Bestland, 5 Ves. 515.
2 Nash v. Nash, 2 Madd. 133,
1 9 Ves. 87., and see Carr v. Taylor, 10 Ves. 578. 2 2 Vern. 401. Prec. Chan. 118.
31 Jac. & Walk. 476. * See Earl of Salisbury v. Newton. 1 Eden. 370. 5 See cases cited in Elliot v. Cordell, 5 Mad. 149.
here to be observed, that though the courts of equity may seem to have deviated in this respect from the rule that “ equity will not take away the benefit of survivor from the wife, of such things as the law has cast upon her,"1 yet there is a reason exclusively applicable to a married woman's equitable interests, which seems to afford a sufficient warrant for their so doing. We are to remember that the principal object a court of equity has in view with regard to the property of a woman in its own power, or which is to be reached only by its authority, is, to obtain a settlement for her out of it. Subject to that consideration, it regards such property as belonging to the husband, and disposable by him during his life. equity,” said Sir William Grant, in Woollands v. Crowcher,
is, not to prevent his receipt of it (for it belongs to him), but to have a settlement, and the court requires her consent to the payment to him without a settlement.” In compelling the assignee therefore to make a settlement, the object of the court with regard to such property is answered. Moreover, as interests of this nature are cognizable solely in the courts of equity, those courts, in allowing the husband a power of sale over them, infringe no principle of law. They observe, with respect to the subjects of their peculiar jurisdiction, an analogy to the rule of law so far as is compatible with the objects of that jurisdiction. Allowing these reasons to be sufficient for the determinations of the courts of equity with respect to mere equitable interests, it is obvious that they do not at all apply to legal choses in action-property recoverable without their intervention, out of which they have no power of enforcing a settlement, and of which they cannot deprive the wife without distinctly violating a principle of law in analogy to which they profess to act, even with respect to subjects peculiarly cognizable by them. However, it has been frequently asserted in arguments of counsel and in treatises, that an assignment of the wife's choses in action, legal as well as equitable, will be supported in equity, (if made for valuable consideration) against the wife surviving. In Mitford v. Mitford, Sir William Grant thus alluded to the doctrine, in order to get it out of his way in considering the effect of an assignment in bankruptcy. By assignment for valuable consideration, it is said, she (the widow) is bound both as to choses in action, and equitable interests. Bates v. Dandy,1 and Lord Carteret v. Paschal.”. The first of these authorities is always cited as that upon which the doctrine in question rests for support. It is simply an obiter dictum attributed to Lord Hardwicke, that “ the husband may assign the wife's chose in action or a possibility that the wife is entitled to, as well as her term, so that it be not voluntary, but for a valuable consideration.” With respect to this proposition it may be remarked, without in any degree derogating from the respect due to any legitimate expression of the opinion of that great judge, that it is contained in what we have reason to know (from the statement in the Registrar's book), to be an exceedingly imperfect and garbled report of the case. suppose it to have been laid down by his lordship as a principle upon which his decision was founded, or which had anything to do with it, we might more safely place some reliance upon it. But, it is certain from the facts of the case, as stated in the official record of it, that the dictum in question was wholly uncalled for by the circumstances upon which Lord Hardwicke had to adjudicate. The case turned upon the validity as against the wife surviving of a deposit made by the husband, with an agreement to assign (by way of security for a debt) certain mortgages, one in fee, and another for a term of years allotted to the husband and wife, as the wife's share of a residuary personal estate ; which share, at the time of such deposit and agreement, had (as appears from the Register Book, though not from the report), been transferred to the husband and wife. The legal estates in the mortgages remained outstanding, the parties in whom they were vested covenanting to convey or assign them to the husband, or as he should appoint. Under these circumstances (the specific property in question never having been exclusively the wife's choses in action), there could, it should seem, be no doubt of the husband's power of disposition in equity, with or without consideration. In Carteret and Paschal, it is merely stated, that “ It was agreed, that where the baron is in right of his
Tr. of Equity, B. 1. ch. 4. s. 24. 2 Packer v. Wyndham, Prec. Chan. 418.
3 12 Ves. 177.