The wife's equity to a reasonable provision out of her property for the support of herself and her children, makes a distinguished

by operation of law, and a particular assignee for a specific consideration. And in Hornsby v. Lee, Sir Th. Plumer considered that a particular assignee was not better off in this respect than a general assignee in bankruptcy. Afterwards, in Purdew v. Jackson, 1 Russell's Rep. 70, the subject was discussed and reargued with great ability, and Sir Th. Plumer, in an elaborate opinion, declared his adherence to his former opinion, and carried his doctrine out broadly to the whole extent of it, by holding, that all assignments made by the husband of the wife's outstanding personal chattels, not then reduced to possession, whether the assignment be in bankruptcy, or under an insolvent act, or to trustees for payment of debts, or to a purchaser for a valuable consideration, pass only the interest which the husband had, subject to the wife's legal right of survivorship; and the husband could not possibly make an assignment of the reversionary interest of his wife, so as to bar her as survivor, provided the interest remained reversionary. Sir William Grant, in Wright v. Morley, 11 Vesey, 12, thought there was great weight in the proposition of Lord Alvanley, that no assignment by the husband, even for a valuable consideration, could convey more than the right he had to reduce the wife's outstanding interest into possession, subject to "the wife's equity;" and that if the husband died before that fact had occurred, the wife's right as survivor would bar the assignee. In Ellison v. Elwin, 13 Sim. 309, the doctrine in the case of Purdew v. Jackson was reaffirmed by the vicechancellor. Again, in Honner v. Morton, 3 Russell's Rep. 65, Lord Chancellor Lyndhurst gave a decided support to the doctrines of the successive masters of the rolls, Lord Alvanley, Sir William Grant, and Sir Th. Plumer, so far as the reversionary interest of the wife was in question; but he took a distinction between the case in which the husband had an immediate power at the time of the assignment, of reduc ing the chose in action into possession, and where he had not. In the first case, the assignment ought, in equity, to be regarded as the actual reduction of the property into possession, and a consequent transfer of it, for he had the power to do it, and the assignment amounted to an agreement to do it.1

These latter cases were reviewed in Siter and another, Guardians of Jordan, 4 Rawle's Rep. 468, by Ch. J. Gibson, with learning and ability, and the reasoning of Sir Thomas Plumer, and of Lord Lyndhurst, powerfully combated. Afterwards, in Shuman v. Reigart, 7 Watts & Serg. 169, the court declared their adherence to the doctrine in Siter's case. The doctrine of the English cases, that the efficiency of the assignment depends on the previous reduction of the chose in action to possession, is declared not to be sound, inasmuch as the husband jure mariti has dominion over the property, as well as the power to reduce it to possession, and his fair bona fide transfer of it for a valuable consideration, passes that whole dominion, capacity, and title. The husband, by marriage, succeeds to the wife's power of disposal; and the distinction

1 In Elliott v. Cordell, 5 Madd. 149, the decision was against the right of the wife; and this decision was approved by Lord Brougham in Stanton v. Hall, 2 Russ. & My. 175; and by the vice-chancellor, in Tidd v. Lister, (1853,) 17 Eng. L. & E. R. 567.

It is held, in Alabama, that the husband's assignee for valuable consideration, is not entitled as against the wife to her choses in action, unless he reduce them to possession during the coverture, George v. Goldsby, 23 Ala. 826. Arrington v. Yarbrough, 1 Jones Eq. 72; but see Tuttle v. Fowler, 22 Conn. 58.

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. (a) 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. (b)

between 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.1

White

(a) Howard v. Moffatt, 2 Johns. Ch. Rep. 206. 1 Eden's Rep. 67, 370, 371. 2 Atk. Rep. 420, 421, 422. Sleech v. Thorington, 2 Vesey, sen. 562. 4 Bro. Rep. 139. 2 Cox's Cases, 422. 11 Vesey, 17, 20, 21. 1 Madd. Ch. Rep. 362. Clancy's Treatise, passim. Duvall v. Farmers' Bank of Maryland, 4 Gill & Johns. Rep. 282. sides v. Dorris, 7 Dana's Rep. 106. Perryclear v. Jacobs, Hill's S. C. Ch. Rep. 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 assignment.

(6) Anon. 1 Atk. Rep. 491. Grignion v. Grignion, 1 Hagg. Eccl. R. 535.

1 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. 180.

Chancery will restrain the husband from proceeding in the ecclesiastical courts, for the recovery of the wife's legacy, *140 until a provision is made for her; (a) and, upon that 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.

(a) 2 Atk. Rep. 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 Deusen, 4 Paige's Rep. 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 a sufficient provision from other sources. Fry v. Fry, 7 Paige, 462. Martin v. Martin, 1 Hoffman's Ch. Rep. 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. Rep. 149. Stanton v. Hall, 2 Russ. & Mylne's Rep. 175. Tyler v. Lake, Ibid. 183.

(b) 4 Johns. Ch. Rep. 318.

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

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 whether the particular transfer was voluntary, or made upon a good and valuable consideration, or in payment of a just debt. (a) 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 case, So, again, in Haviland v.

Bloom, (b) the same subject came under consideration; *141 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. (c)

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 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 assign

he

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

(b) 6 Johns. Ch. Rep. 178.

(e) In the case Er parte Beresford, 1 Dessau. S. C. Rep. 263, the court, after a full discussion, ordered a new settlement in favor of the wife on a new accession of fortune.

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. & E. R. 192.

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

ment 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. (a) If the husband can acquire possession without a suit at law, or in equity, or by a suit at law, 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. (b) But it is unnecessary to pursue this subject more minutely; and it is a vain attempt, says Mr. Justice Story, (c) 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 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 *142 court of * chancery, (d) nor in New Hampshire, where

equity powers, to a specific extent only, are conferred by statute upon the superior court of common-law jurisdiction, (e) 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. (f) In

(a) Walworth, Ch., in Van Epps v. Van Deusen, 4 Paige, 64. Fry v. Fry, 7 id. 462. Martin v. Martin, 1 Hoffman's Ch. Rep. 462. 2 Atk. 419. 2 Story's Eq. 632. Clancy's Treatise, 468.

(b) Howard v. Moffatt, 2 Johns. Ch. Rep. 206. Thomas v. Sheppard, 2 M'Cord's S. C. Ch. Rep. 36. In the matter of Anne Walker, 1 Lloyd & Goold, 159, Cases temp. Plunket.

(c) Story's Eq. vol. ii. 635, 636.

(d) 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's Rep. 323. But the Orphans' Court has, by statute, a limited jurisdiction over the wife's equity.

(e) Parsons v. Parsons, 9 N. H. Rep. 309.

(ƒ) M'Elhatten v. Howell, 4 Haywood, 19. Duvall v. Farmers' Bank of Mary

Wiles v. Wiles, 3 Maryl. 1.