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band; and in Dumond v. Magee, 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 Kenny v. Udall. 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 wherhrer 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 whether the particular transfer was voluntary, or made upon a good and valuable consideration, or in payment of a just debt. 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, the same subject 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 4 Johns. Ch. Rep. 318. 65 Johns. Ch. Rep. 464. 3 Cowen, 590. S.C. c6 Johns. Ch. Rep. 178.
Twife's equity does not, according to the adjudged eas, attach, except upon that part of her personal proparty 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, though it should have been of an equitable nature, chancery will leave him in undisturbed possession of it. The claim attaches only on that part of the wife's personal fortune which the husband cannot acquire without the aid of a court of equity. If he can acquire possession of it 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.a But it is unnecessary to pursue this subject more minutely. The cases in chancery to which I have referred, have incorporated into the equity jurisprudence of this state, all the leading provisions and principles of the English courts of equity on this head : and though such a protection to the wife cannot be afforded in Pennsylvania, where there is no Court of Chancery,b yet, I presume, it exists in those other states where courts, with distinct equity powers, according to the English system, are established. It exists in Tennessee, and is even exercised in their Supreme Court of law.c
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 disItinction is, that if he brings the action in his own name alone, (as he may for a debt due to the wife upon bond,a) 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 make 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 lifetime, to the whole of ber things in action, though not reduced to possession in his lifetime, and though there be no special agreement for that purpose. If the settlement be in consideration of a particular part only of her fortune, the right of survivorship in the wife will exist only as to the part of her property not comprised in the settlement, and not reduced to possession by the husband.b The settlement must expressly state, or clearly import, that it was in consideration of the wife's fortune, and it must appear to be adequate to the purchase of her fortune, before it will bar her right of survivorship.c
a Howard v. Moffatt, 2 Johns. Ch. Rep. 206. 6 Yobe v. Barnet, 1 Binney, 358.
c M.Elbatten v. Howel, 4 Ilaywood, 19.; and to the student who wishes to take a connected and comprehensive view of the whole doctrine, I would recommend the learned note of Mr. Butler, note 304. to lib. 3 Co. Lill. and more especially Clancy's Essay on the Equitable Righls of Married Women.
(5.) As to personal property of the wife, which she had in possession at the time of the marriage, in her own right, and not en auter droit, such as money, goods, and chattels, and moveables, they vest immediately and absolutely in the husband, and he can dispose of them as he pleases, and on his death, they go to his representatives, as being entirely his property.
a i Vern. 396. 3 Ler. 403. Howell v. Maine. But Mr. Preston, in his Essay on Abstracts of Title, vol. i. 348. condemns the doctrine in this case io I.evinz, and denies that a busband can sue alone op a bond given to the wife alone.
b Butler's note, 304. to lib. 3. Co. Litt. i Vern. 396. note 5. Garforth v. Bradley, 2 Vesey, 677. Meredith v. Wyon, Eq Ca, Abr. 70. pl. 15. Packer v. Windharn. Prec. in Ch. 412. Druce v. Dennison, 6 Vesey, 395.
< Cleland v, Cleland, Proc. in Ch. 63. Carr v. Taylor, 10 l'escy, 579.
II. The duties which the husband assumes
The husband is answerable for the wife's debts before coyotlure; but if they are not recovered during the coverpote, he is discharged. He is answerable for her debts only in virtue of the duty imposed on him to discharge all the obligations of the wife ; and that his responsibility should cease after coverture ceases, is, in some cases, rather against conscience ; but then, as a compensation for the rule, it is to be considered that the charging the husband in all cases with the debts, would be against conscience also. It is a strict rule of law which throws ipon the husband during coverture all the obligations of the wife ; and by the same rule of law, he is discharged after the coverture ceases, by the death of the wife. Courts of equity have held, that they could not vary the rule of law according to the fact, whether the husband had, or had not received a portion with his wife, or charge his conscience in one case more than in the other. This is the meaning of the case of Heard v. Stanford, according to Lord Redesdale's explanation of the rule on this point.b
The rule of law on this subject may operate very injuriously to creditors; for if the wife be largely indebted before marriage, and the husband takes and appropriates all her personal property to himself, and the wife dies before the creditors have collected their debts, the husband is no longer liable, and the creditors of the wife are left without remedy. If the husband himself dies before the debts are collected, his representatives are not liable; and though the wife remains liable after her husband's death,
a 3 P. Wms. 409. Cases temp. Talb. 173.
for her former debts remaining unpaid, she may have no property to pay them. The answer to this objection is attempted by Lord Macclesfield, in the Earl of Thomond v. Earl of Suffolk. It inay be hard, he observes, that the husband should be answerable for the wife's debts, when he receives nothing from her; but we are to set off against that hardship, the rule that if the husband has received a personal estate with the wife, and happens not to be sued during the coverture, he is not liable. He runs a hazard in being liable to the debts much beyond the personal estate of the wife ; and in recompense for that hazard, he is entitled to the whole of her personal estate, though far exceeding the debts, and is discharged from the debts as soon as the coverture ceases. In Heard v. Stanford, there was a strong effort made before Lord Ch. Talbot, to charge the husband, alter ihe wife's death, with a debt of her's dum sola, to the extent of what he had received from her, for she happened to bring a large personal estate to her husband. The injustice of the case was pressed upon the court, for upon the rule as it stood, a feme sole might be worth £10,000, and owe £1000, and marry and die, and the husband might appropriate the £10,000 to his own use, and not pay one farthing of the debt. Lord Nottingham was so provoked at the hardship of the rule, in a case in which the wife brought a large portion to her husband, and died, and when the husband continued in possession of the goods, and refused to pay the very debt contracted by the wife for the goods, that he declared he would alter the law. But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable to the wife's debts only during the coverture, unless the creditor recovered judgment against him in the wife's lifetime, and that only the wife's choses in action not reduced to possession in her lifetime, would be assets in the husband's hands, when they come to him, as her administrator. If relief ought to be given against the husband,
a1 P. W ms. 469.