figure in the modern chancery cases, which relate to the claims of the husband upon the property of his wife in action. If the husband wants the aid of chancery to enable him to get possession of his wife's property, or if her fortune be within the reach of the court, he must do what is equitable, by making a reasonable provision out of it for the maintenance of her and her children. Whether the suit for the wife's debt, legacy, or portion, be by the husband or by his assignees, the result is the same, and a proper settlement on the wife must first be made of a proportion of the property. (d) The provision is to be proportioned, not merely to that part of the equitable portion of the wife's estate which the husband seeks, but to the whole of her personal fortune, including what the husband had previously received. And perhaps chancery ought, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife's personal property in action, unless he would make a competent provision for her. The English rule in equity is, that where there is a suit in the ecclesiastical courts for subtraction of a legacy, and there is a married woman to be protected, or a trust to be executed, the Court of Chancery will restrain the suit by injunction. (e)

Chancery will restrain the husband from proceeding in the

vested and contingent, or reversionary interests of the wife, in respect to the marital dominion and power of the transfer of it, is held to be without foundation. The critical review in this last case of the English cases, was intended only to show the weak grounds on which the new theory rested; and the point really decided in Pennsylvania, and the authority of the case, extend only to prove that the assignment of a wife's chose in action to trustees, for the benefit of the wife and children, and to place it beyond the power of waste by the husband, was meritorious and valid in equity.*

(d) Howard v. Moffatt, 2 Johns. Ch. 206. 1 Eden, 67, 370, 371. 2 Atk. 420, 421, 422. Sleech v. Thorington, 2 Vesey Sen. 562. 4 Bro. C. C. 139. 2 Cox's Cases, 422. 11 Vesey, 17, 20, 21. 1 Madd. Ch. 362. Clancy's Treatise, passim. Duvall v. Farmer's Bank of Maryland, 4 Gill & Johns. 282. Whitesides v. Dorris, 7 Dana, 106. Perryclear v. Jacobs, Hill Ch. (S. C.) 509. Like v. Beresford, 3 Vesey, 506. In this last case the assignment of the wife's interest in bank stock to creditors, in trust to pay debts, was held to be subject to the wife's equity, on a bill to enforce the assign

ment.

(e) Anon. 1 Atk. 491. Grignion v. Grignion, 1 Hagg. Eccl. 535.

It is held in Pennsylvania, that a husband may assign for a valuable consideration the wife's choses in action, whether they be presently reducible or be reversionary interests or possibilities. Webb's Appeal, 21 Penn. 248. Smilie's Estate, 22 Penn. 130.

ecclesiastical courts, for the recovery of the wife's legacy, until a provision is made for her; (a) and, upon that *140 doctrine, a suit at law for a legacy or distributive share ought equally to be restrained, for such rights in action are of an equitable nature, and, properly, of equitable cognizance. The principle is, that chancery will lay hold of the property of the wife, as far as it may be in its power, for the purpose of providing a maintenance for her when she is abandoned by her husband; and in Dumond v. Magee, (b) where the husband had abandoned his wife for many years, and married another woman, he was held to have forfeited all just claim to his wife's distributive share of personal estate inherited by her, and the same was appropriated, by decree, to her separate use.

This subject was considered, and the principal authorities reviewed, in the case of Kenney v. Udall. (c) It was there held, that the wife's equity attached upon her personal property whenever it was subject to the jurisdiction of the court, and was the object of a suit, in any hands to which it might come, or in whatever manner it might have been transferred. It makes no difference whether the application to the court for the property be by the husband, or his representatives, or assignees, or by the wife, or her trustee, seeking a provision out of the property. This equity is equally binding, whether the transfer of the property be by operation of law, under a commission of bankruptcy, or by act of the party to general assignees, or to an individual, or

(a) 2 Atk. 419. Chancery will interpose on a bill filed by or on behalf of the wife, and restrain the husband, or his assignees, from possessing themselves of the property at law, until a suitable provision be allowed for her support. Van Epps v. Van Densen, 4 Paige, 64. It has, at last, in New York, become a settled rule of the courts of equity, that they will interfere and restrain a husband from recovering at law his wife's property, until he makes a provision for her. But this will not be the case if the wife lives apart from her husband without cause, or has sufficient provision from other sources. Fry v. Fry, 7 Paige, 462. Martin v. Martin, 1 Hoff. Ch. 462. But equity will not, at the suit of the wife, compel a settlement out of a chose in action bequeathed to her for life, but not expressed to be for her sole and separate use, against a particular assignee for a valuable consideration. The contract of the husband is excluded only by words, showing clearly that the gift was intended to be for her separate use, or in the existence of a case in which he omits duly to provide for her. Elliott v. Cordell, 5 Madd. Ch. 149. Stanton v. Hall, 2 Russ. & M., 175. Tyler v. Lake, Ibid. 183. (b) 4 Johns. Ch. 318.

(c) 5 Johns. Ch. 464. 3 Cowen, 590, S. C. Durr v. Bowyer, 2 M'Cord Ch. 368. Duvall v. Farmers' Bank of Maryland, 4 Gill & Johns. 282, S. P.

*

whether the particular transfer was voluntary, or made upon a good and valuable consideration, or in payment of a just debt. (d) The court may, also, in its discretion, give the whole, or part only, of the property to the wife, according to the circumstances of the So, again, in Haviland v. Bloom, (e) the same sub* 141 ject came under consideration; and the rule in equity was considered as settled, that the wife's equity to a suitable provision for the maintenance of herself and her children, out of her separate estate, lying in action, was a valid right, and extended not only to property which she owned dum sola, but to property descended or devised to her during coverture. A new equity arises to the wife upon property newly acquired, and attaches upon it equally as upon that which she brought with her upon marriage. (a)

The wife's equity does not, according to the adjudged cases, attach, except upon that part of her personal property in action which the husband cannot acquire without the assistance of a court of equity. The rule in equity does not controvert the legal title of the husband to his wife's personal fortune; and if he once acquired possession of that property jure mariti, though it should have been of an equitable nature, chancery will leave him in undisturbed possession of it. The claim attaches on that part of the wife's personal fortune for which the husband seeks the aid of a court of equity, or where he makes an assignment of her equitable interests; or the wife seeks relief in chancery against her husband and his assignees, in regard to her legal or equitable rights which they are pursuing. (b) If the husband can acquire possession without a suit at law, or in equity, or by a suit at law,

(d) Earl of Salisbury v. Newton, 1 Eden, 370. Bosvil v. Brander, 1 P. Wms. 458. Ex parte Thompson, 1 Deacon, 90. Ex parte King, Ibid. 143.

(e) 6 Johns. Ch. 178.

(a) In the case Ex parte Beresford, 1 Desaus. 263, the court, after a full discussion, ordered a new settlement in favor of the wife on a new accession of fortune.

(b) Walworth, Ch., in Van Epps v. Van Deusen, Paige, 64. Fry v. Fry, 7 Id. 462. Martin v. Martin, 1 Hoff. Ch. 462. 2 Atk. 419. 2 Story Eq. Jur. 632. Clancy's Treatise, 468.

1 A wife's equity does not extend to a reversionary interest in stock. The settlement of that fund cannot be asked for until it falls into possession, i. e. until the husband has a right to receive it. Osborn v. Morgan, 8 Eng. L. & Eq. 192.

The husband cannot charge or assign a reversionary interest of the wife, which cannot by any possibility vest in him. Duberley v. Day, 12 E. L. & Eq. 268. Rogers v. Acaster, 11 Id. 300, and see Sale v. Saunders, 24 Miss. 24.

without the aid of chancery, (except, perhaps, as to legacies, and portions by will or inheritance, as has been already suggested,) the husband will not be disturbed in the exercise of that right. (c) 2 But it is unnecessary to pursue this subject more minutely; and it is a vain attempt, says Mr. Justice Story, (d) to ascertain, by general reasoning, the nature or extent of the doctrine, for it stands upon the practice of the court. The cases in chancery, to which I have referred, have incorporated into the equity of jurisprudence of New York all the leading provisions and principles of the English courts of equity on this head; and though such protection to the wife cannot be afforded in Pennsylvania, where there is no court of * chancery, (a) nor in New * Hampshire, where equity powers, to a specific extent only, are conferred by statute upon the superior court of common-law jurisdiction, (b) yet I presume it exists in most of the other states where courts are established with distinct equity powers, according to the English system, or with legal and equitable powers united, according to the more generally prevailing practice in the United States. It exists in Maryland and Tennessee; and in the latter state protection is even afforded in their courts of law. (c) In North Carolina, if the aid of a court of equity be required by the husband to enable him to take possession of

142

(c) Howard v. Moffatt, 2 Johns. Ch. 206. Thomas v. Sheppard, 2 M'Cord Ch. 36. In the matter of Anne Walker, 1 Lloyd & Goold, 159, Cases temp. Plunket. (d) 2 Story Eq. Jur. 635, 636.

(a) Yohe v. Barnet, 1 Binney, 358. The want of such a power in the Pennsylvania courts is deeply regretted by a very intelligent judge. In the matter of Miller, 1 Ashmead, 323. But the Orphans' Court has, by statute, a limited jurisdiction over the wife's equity.

(b) Parsons v. Parsons, 9 N. Hamp. 309.

(c) M'Elhatten v. Howell, 4 Haywood, 19. Duvall v. Farmers' Bank of Maryland, 4 Gill & Johns. 282. In Tennessee, it has been adjudged that the wife's equity will be enforced: (1.) When the husband or his assignee is asking the aid of a court of equity to reduce her property into possession: (2.) At the suit of the wife or of her trustee, praying for the provision: (3.) When the trustee designs or is willing to pay or deliver over the property to the husband or his assignee without suit. In that case, all of them will be enjoined, at the suit of the wife, from changing the possession until provision be made. But if the husband or his assignee has already reduced the property into possession, a court of equity does not interfere. Dearin v. Fitzpatrick, Meigs, 551. These are the settled principles on the subject in the English equity system.

Wiles v. Wiles, 3 Maryl. 1.

1 It exists in Georgia. Corley v. Corley, 22 Geo. 178.

his wife's property, he must make reasonable provision for her; and the rule is the same when his legal representatives or assignees claim it. But their decisions go no further, and the wife cannot, by a suit in equity, stop him, though he be insolvent, from taking possession, unless her claim be founded upon a marriage settlement. (d)2 The Superior Court of New Hampshire intimates that it may, perhaps, be authorized to apply the principle of sustaining the wife's equity, when the husband or his assignee asks the aid of the court to obtain possession of the distributive share of his wife. (e)

There is a difference as to choses in action belonging to the wife, whether the husband sues in his own name exclusively, or jointly with his wife. The principle of the distinction is, that if he brings the action in his own name alone, (as it is said he may for a debt due to the wife upon bond,) (f) it is a disagreement to the wife's interest, and implies it to be his intention that it should not survive her. But if he brings the action in their joint names, the judgment is, that they shall both recover, and the debt survives to the wife. The judgment does not alter the property, or show it to be his intention that it should be altered. It is also. the rule of equity, that if before marriage the husband makes a settlement on the wife, in consideration of her fortune, he is considered in the light of a purchaser of her fortune, and his representatives will be entitled, on his dying in his wife's life*143 time, to the whole of her things in action, though not

*

(d) Bryan v. Bryan, 1 Dev. Eq. 47.

(e) See Parsons v. Parsons, 9 N. Hamp. 309-336, where Ch. J. Parker has examined the history and doctrine of the wife's equity with accurate and elaborate learning.

(f) Lord Chancellor, in Oglander v. Baston, 1 Vern. 396. Howell v. Maine, 3 Lev. 403. But Mr. Preston, in his Essay on Abstracts of Title, vol. i. p. 348, condemns the doctrine in this case in Levinz, and denies that the husband can sue alone on a bond given to the wife alone.

2 See Allen v. Allen, 6 Ired. Eq. 293. Barron v. Barron, 24 Vermont, 375, 391. The wife's equity extends as well to real as to personal property. In Moore v. Moore, 14 B. Mon. 259, it was allowed to the wife out of the proceeds of lands which descended to her during the coverture; and in such case the wife may assert her right by original bill. So, where the wife joined with the husband in the conveyance of lands, and the husband became insolvent before the price was paid, a suitable settlement was decreed to her out of the price. Lay v. Brown, 18 B. Mon. 295. The wife may waive her right by permitting the conveyance; Wright v. Arnold, 14 B. Mon. 638; or by joining in the receipt for the proceeds; Ex parte Geddes, 4 Rich. Eq. 301; or explicitly, on a separate examination; Ward v. Amory, 1 Curtis C. C. 419. And see McVey v. Boggs, 3 Maryl. Ch. 94. Barrow v. Barrow, 31 E. L. & Eq. 241.