Lapas attēli

other; and as for all the purposes of ownership, the husband and wife are but one person in law, they take only a moiety of the land in the one case, and only a third of it in the other. (6) If they are tenants by entireties of a term of years, the husband may alien the entirety so as to bind the wife. (c) The same words of conveyance, which would make two other persons joint tenants, will make the husband and wife tenants of the entirety.

This is a nice distinction laid down in the old books, and it * 133 continues to this day to be the law. (d) *The husband

alone may grant or charge the wife's land during their joint lives, and if he be tenant by the curtesy during his own life. He cannot alien or incumber it, if it be a freehold estate, so as to prevent the wife, or her heirs, after his death, from enjoying it, discharged from his debts and engagements. But from the authorities, when closely examined, says Mr. Preston, (a) it seems

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(6) Litt. sec. 291. Barber r. Harris, 15 Wendell, 617. Johnson v. Hart, 6 Watts & Serg. 319.

(c) Grute v. Locroft, Cro. Eliz. 287. When husband and wife hold the entirety, with the right of survivorship, he cannot alien the entire estate ; but the husband may execute a mortgage of his interest, or he may make a lease in his own name, or join with his wife. Jackson v. McConnell, 19 Wendell, 175. In the state of Ohio, no joint tenancy exists, and the doctrine of survivorship is unknown, even as to a devise to husband and wife, and they take as tenants in common, and not as tenants of the entirety. Sergeant v. Steinberger, 2 Ohio, 305, (Ham. 423); Wilson v. Fleming, 13 Id. 68.

(d) Litt. sec. 291. Co. Litt. 187 b, 188 a, 351. Bro. Abr. tit. Cui in vita, 8. Blacks. Rep. 1214. Doe v. Parratt, 5 Term. Rep. 652. 16 Johns. 115. 5 Johns. Ch. 437. Barber v. Harris, 15 Wendell, 615. Den v. Hardenbergh, 5 Halst. N. J. 42. 3 Rand. 179. 5 Mass. 523. i Dana, (Ken.) 37, 243. Taul v. Campbell, 7 Yerger, 319. Den v. Whitemore, 2 Dev. & Bat. 537. Greenlaw v. Greenlaw, 13 Maine, 186, Weston Ch. J. Dickinson v. Codwise, i Sandf. Ch. 214, 222. See infra, vol. iv. p. 362. Mr. Preston (Abstracts of Title, vol. ii. p. 41) says, that as the law is now understood, husband and wife may, by express words, be made tenants in common, by a gift to them during coverture. The assistant vice-chancellor, in Dias & Burn v. Glover, 1 Hoff. Ch. 71, questions the solidity of Mr. Preston's opinion. The law in the text does not exist in Connecticut; but the husband and wife are joint tenants in such case, and the husband may alone convey his interest. Whittlesey v. Fuller, 11 Conn. 337.3 (a) Essay on Abstracts of Title, vol. i. pp. 384, 435, 436. Sergeant Williams, in his

i. note to Wotton v. Hele, 2 Saund. 180, n. 9, concludes, that as estates for life, being freehold estates, and commencing by livery of seisin, could only be avoided by entry, leases

3 Both, it is held in Pennsylvania, are seised of the entirety though the conveyance be to them in fee as “ tenants in common and not as joint tenants.” Stuckey v. Keefe's Executors, 26 Penn. 397.

1 Butterfield v. Beall, 3 Ind. 203.

the husband has the power to transfer the whole estate of his wife, and the estate will be in the alienee of the husband, subject to the right of entry of the wife, or her heirs, and which entry is necessary to revest the estate after the husband discontinues it. She was driven at common law to her writ of right, as her only remedy; but Lord Coke says, (6) he found that in the times of Bracton and Fleta, the writ of entry cui in vita was given to the wife, upon the alienation of her husband, and this was her only remedy in the age of Littleton. (c) That writ became obsolete after the remedial statute of 32 Hen. VIII. c. 28, which reserved to the wife her right of entry, notwithstanding her husband's alienation ; and the writ of entry lay even if she had joined with her husband in a conveyance by feoffment, or bargain and sale, for such conveyances were deemed the sole act of the husband, as the wife was not separately examined. (d)

(2). To her life-estate.

* If the wife, at the time of the marriage, hath an estate * 134 for her life, or for the life of another person, the husband

for life by the husband were voidable only, but that leases for a term of years were absolutely void on the husband's death; and this, Chancellor Johnson considers the better doctrine; and this, I think, is the correct conclusion. Brown v. Lindsay, 2 Hill Ch. (S. C.) 544.

(6) 2 Inst. 343.

(c) Litt. sec. 594. The extent of the remedy under this ancient writ may be seen in Bro. Abr. tit. Cui in vita, and F. N. B. 193, h. t.

(d) Co. Litt. 326, a. The statute of 32 Hen. VIII. was reënacted in New York, in 1787, by Act, 10th sess. ch. 48. But it does not appear in the revision of 1830, and the action of ejectment was doubtless deemed commensurate with every right to the recovery of land. New York Revised Statutes, vol. ii. p. 303. In Massachusetts, it is held, that the statute of 32 Henry VIII. protecting the wife's inheritance or freehold from the husband's act, is still in force in that state, " as a modification and amendment to the common law." Bruce v. Wood, 1 Metcalf, 542. In New Jersey, by statute, it is declared that the husband can do no act or make any default to affect or work any prejudice to the wife's inheritance or freehold, and after his death she may lawfully enter and hold the same, notwithstanding. Elmer's Dig. 77. This is the universal law on the subject. In Maryland, under the statute of 1786, the husband may elect, in right of his wife, to take her ancestor's lands at the valuation of commissioners, and pay or give bonds to the co-heirs of the wife for their just proportion of the estate, and that election vests in him the fee as a purchaser, to the exclusion of the wife. Stevens v. Richardson, 6 Harr. & Johns. 156. In Miller v. Shackleford, 4 Dana (Ken.) 728, it was held that a woman, whose estate had been wrongfully aliened by her husband, might recover it in ejectment after his death, without notice to the tenant to quit, and no acquiescence in the tenant's holding, short of 20 years, would bar her.

becomes seised of such an estate in right of his wife, and is entitled to the profits during the marriage. On the death of the wife, the estate for her own life is gone, and the husband has no further interest in it. But if she have an estate for the life of another person, who survives her, the husband becomes a special occupant of the land during the life of such other person. After the estate for life has ended, the land goes to the person entitled in reversion or remainder, and the husband, quasi husband, has no more concern with it. This estate the husband can only sell or charge to the extent of his interest in it, and his representatives take as emblements the crops growing at his death.

(3.) To her chattels real.

The husband, upon marriage, becomes possessed, also, of the chattels real of the wife, as leases for years, and the law gives him power, without her, to sell, assign, mortgage, or otherwise dispose of the same as he pleases, by any act in his lifetime;(a) except it be such an interest as the wife hath, by the provision or consent of her husband, by way of settlement. (6) Such chattels real are also liable to be sold on execution for his debts. If he makes no disposition of the same in his lifetime, he cannot devise the chattels real by will; (C) and the wife, after his death, will take the same in her own right, without being executrix or administratrix to her husband. If he grants a rent-charge out of the same, without altering the estate, the rent-charge becomes void at his death. If he survives his wife, the law gives him her

chattels real, absolutely, by survivorship; for he was in 135 possession of the chattel * real during the coverture, by a

kind of joint tenancy with the wife. (a)

(4.) To her choses in action.

As to debts due to the wife, at the time of her marriage, or afterwards, by bond, note, or otherwise, and which are termed choses in action, they are not vested absolutely in the husband, but the husband has power to sue for and recover, or release or assign

(a) Co. Litt. 46, b.
(b) Sir Edward Turner's case, 1 Vern. 7.
(c) Co. Litt. 351, a.

(a) Co. Litt. 351, b, Butler's note, 304, to Co. Litt. lib. 3, 351, a. 1 Rol. Abr. 345, pl. 40.

the same; and when recovered and reduced to possession, and not otherwise, it is evidence of a conversion of the same to his own use, and the money becomes, in most cases, absolutely his own. (6) The rule is the same if a legacy or distributive share accrues to the wife during coverture. (c)2 So, he has power to

( release and discharge the debts, and to change the securities, with

(6) Little v. Marsh, 2 Ired. Eq. N. C. 18. 2 Leigh, 1109. The reduction of the wife's choses in action into possession by the husband is not in all cases conclusive, though it is primâ facie evidence of the conversion of it, for there may be satisfactory proof that he took and held the money as her trustee, and for which he would be accountable. Estate of Hinds, 5 Wharton, 138.3

(c) Garforth v. Bradley, 2 Vesey Sen. 675. Schuyler v. Hoyle, 5 Johns. Ch. 196. Haviland v. Bloom, 6 Ibid. 178. Carr v. Taylor, 10 Vesey, 578. Wildman v. Wildman, 9 Vesey, 174. Parsons v. Parsons, 9 N. Hamp. 309.

1 It has been held that a husband cannot deprive his creditors of the choses in action which come to the wife during coverture, by settling them upon the wife without reducing them to possession. Dold v. Geiger, 2 Gratt. 98. But see Andrews v. Jones, 10 Ala. 400. Where the consideration of a note proceeds from the rights or property of the wife, and it is made payable to her, with the husband's assent, he may refuse to reduce it to possession, and his creditors cannot take it. Poor v. Hazleton, 15 N. Hamp. 564. See Peacock v. Pembroke, 4 Maryl. 280. A wife may claim by the right of survivorship against her husband's executor, a promissory note taken during coverture, payable to husband and wife, with the husband's assent. Wilder v. Aldrich, 2 R. I. 518.

A note given to a wife during coverture is a chose in action, which the husband must reduce to possession, and not a personal chattel which vests absolutely in him. Gaters v. Madeley, 6 M. & W. 423. Hart v. Stephens, 6 Ad. & Ell. N. S. 937. Scarpellini v. Atcheson, 7 Ad. & El. N. S. 875.

Chose v. Palmer, 25 Maine, 341. Woelper's Appeal, 2 Barr, 71. Wells v. Tyler, 5 Foster, 340. If the husband neglects to assert any claim to the distributive share of his wife, it is an unsettled question whether the husband's creditors may subject it to the payment of his debts. In Wheeler v. Moore, 13 N. Hamp. 478, such power was denied. And also in Harris v. Taylor, 3 Sneed (Tenn.) 536. So in Coffin v. Morrill, 2 Foster, 352, it was held that lands purchased by the wife with a legacy, which the husband has declined to reduce to possession, is not chargeable with his debts. Gallego r. Gallego, 2 Brock. 287. Contra, Wheeler v. Bowen, 20 Pick. 563. Hayward v. Hayward, Id. 528. Strong v. Smith, 1 Metcalf, 476. An attachment by the husband's creditors of the wife's interest, as legatee, in the hands of an executor, creates only a lien, which will be defeated by the death of the husband pending the suit. Vance v. McLaughlin, 8 Gratt. 289. Hairston o. Hairston, 2 Jones Eq. (N. C.) 123. Denson v. Patton, 19 Geo. 577. Sloper v. Cottrell, 37 Eng. Law & Eq. 89.

In Pennsylvania, it has been held, that an outstanding legacy to a wife does not pass by an assignment by her husband of all his property. Skinner's Appeal, 5 Barr, 262. But see Swoyer's Appeal, Id. 377.

3 S. P. Gochenaur's Estate, 23 Penn. 460. Resor v. Resor, 9 Ind. 347. The property must have been received by the husband solely in the exercise of his marital right. Barron v. Barron, 24 Vermont, 375. Savage v. Benham, 17 Ala. 119. The recovery of a judgment in a joint suit is not of itself a sufficient conversion. Pike v. Collins, 33 Maine, 43. Mason v. McNeill, 23 Ala. 201. But when the reduction is once complete, no subsequent expressions of regret on the part of the husband will revive the wife's right, or render him her debtor or trustee for the amount converted. Nolen's Appeal, 23 Penn. 37.

the consent of the debtor. (d) “But if he dies before he recovers the money or alters the security, or by some act reduces the chose in action into possession, the wife will be entitled to the debts in her own right, without administering on his estate, or holding the same as assets for his debts. (e) 4 If his wife dies, and he survives her before he has reduced the chose in action to possession, it does not strictly survive to him ; but he is entitled to recover the same to his own use, by acting as her administrator. (f ) á By the statute of distributions of 22 and 23 Charles II., and the 25th section of the statute of 29 Charles II. c. 3, in explanation thereof, and which have in substance been reënacted in New York (9) and the other states of the Union, the husbands of femes covert, who die intestate, have a right to administer upon their personal estate,

(d) The husband may release his wife's choses in action, even those in remainder or expectancy, which may possibly fall in during the marriage. i Roper on Husband and Wife, 227, 237.

(e) Kintzinger's Estate, 2 Ashmead, 455. Poindexter v. Blackburn, 1. Ired. Eq. (N. C.) 286. Snowhill v. Executor of S., 1 Green Ch. (N. J.) 30. Richards v. Rich ards, 2 B. & Adol. 447. Gaters v. Madely, 6 M. & W. 423. Scarpellini v. Atcheson, 7 Ad. & El. N. S. 864. It seems to be now a settled principle in the late English equity jurisprudence, under the sanction of the highest judicial authority, as that of Eldon, Grant, Plumer, Leach, Lyndhurst, Cottenham, and Sugden, that nothing short of actual and positive reduction into possession by the husband will bar the wife's right by survivorship to the full enjoyment of her choses in action, and reversionary and contingent interests. See post, p. 138, n. b. It has been suggested, by Mr. Sugden, that it would be a good amendment of the law to confer upon the husband the absolute power to dispose of all his wife's chattel interests or personal estate, whether present or reversionary. But the same lord chancellor decided, with the assistance of the master of the rolls, in Box v. Jackson, i Drury, 42, in the chancery of Ireland, that the court had no power to take and hold the wife's consent as binding to an assignment of her reversionary interest or chose in action.

($) Garforth v. Bradley, 2 Vesey, 675. Lord Tenterden, in Richards v. Richards, 2 B. & Adol. 447.

(9) N. Y. Revised Statutes, vol. ii. p. 75, sec. 29. Ibid. 98, sec. 79.

4 The right of a widow to the personal estate of which ber husband died seised, is a mere chose in action, the title to which does not vest in her second husband, until he has reduced the property into possession and the right survives to the widow, on the death of her second husband. Harper v. Archer, 28 Miss. (6 Cush.) 212. Bond v. Conway, 11 Md. 512. Hair v. Avery, 28 Ala: 267.

6 See Drew v. Long, 21 Eng. L. & Eq. R. 339. Jones v. Brown, 34 N. Hamp. 439. But this right of the husband was held to be incompatible with the legislation of Vermont. Holmes v. Holmes, 2 Wms. (28 Vt.) 765. And in Cox v. Morrow, 14 Ark. 617, and Carter v. Cantrell, 16 Ark. 155, it was held that the personal property of the wife not reduced to possession by the husband during her lifetime, descends upon her death to her heirs or representatives, and not to her husband.

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