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were deemed the sole act of the husband, as the wife was not separately examined.a

(2.) To her life estate.

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

Co Litt. 326. a. The statute of 32 Hen. VIII. was re-enacted in NewYork, 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 Hen. 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 ancester'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. Rep. 156. In Millar v. Shackleford, 4 Dana, 278, 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.

(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. 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 posses*135 sion of the chattel *real during the coverture, by a kind of joint tenancy with the wife.d

(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 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.e The rule is the same, if a legacy or distrib

a Co Litt. 46. b.

b Sir Edward Turner's case, 1 Vern. 7.

c Co. Litt. 351, a.

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

e Little v. Marsh, 2 Iredell's N. C. Eq. Rep. 18. 2 Leigh's N. P. 1109. The reduction of the wife's choses in action into possession by the husband is not in all cases conclusive, though it is prima facie evidence of the con

a

utive share accrues to the wife during coverture. So, he has power to release and discharge the debts, and to change the securities, with the consent of the debtor.b 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. 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. By the statute of distributions of

version 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.

■ Garforth v. Bradley, 2 Vesey, sen, 675. Ch. Rep. 196. Haviland v. Bloom, 6 Ibid. 178. 578. Wildman v. Wildman, 9 Ibid. 174. Rep. 309.

Schuyler v. Hoyle, 5 Johns.

Carr v. Taylor, 10 Vesey, Parsons v. Parsons, 9 N. H.

The husband may release his wife's choses in action, even those in remainder or expectancy, which may possibly fall in during the marriage. 1 Roper on Husband and Wife, 227, 237.

e Kintger's estate, 2 Ashmead, 455. Poindexter v. Blackburn, 1 Iredell's N. C. Eq. Rep. 286. Snowhill v. Executor of S., 1 Green's N. J. Ch. Rep. 30. Richards v. Richards, 2 B. & Adol. 447. Gaters v. Madeley, 6 Meeson & W. 423. Scarpellini v. Atcheson, Q. B. June, 1845. 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, 1 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.

d Garforth v. Bradley, 2 Vesey, 675. Lord Tenderden, in Richards v. Richards, 2 B. & Adol. 447.

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 re-enacted in New-Yorka and the other states of the Union, the husbands of femes covert who die intestate, have a right to administer upon their personal estate, and to recover and enjoy the same. Under the statute, it is held, that the husband is entitled, for his own benefit, jure mariti, to administer, and to take all her chattels real, things in action, and every other species of personal property, whether reduced to possession, or contingent, or recoverable only by suit. But if the wife leaves choses in action not reduced to possession in the wife's life, the husband will be liable for her debts dum sola, to that extent; for those choses *136 in action will be assets in his hands. It is also settled, that if the husband, who has survived his wife, dies before he has recovered the choses in action, his representatives are entitled to that species of property; and in New York it would seem, (though it would be contrary to the English rule,) that the right of administration follows the right of the estate, and is to be granted to the next of kin of the husband; and the representatives of the husband, who administer upon the assets of the wife remaining unadministered, are liable for her debts to her creditors, in preference to the creditors of the

a N. Y. Revised Statutes, vol. ii. p. 75, sec. 29. Ibid. 98, sec. 79. Whitaker v. Whitaker, 6 Johns. Rep. 112. The statute of 29 Charles II., ch. 3, sec. 25, left the effects of femes covert as at common law; and the right of the husband, at common law, was not only to administer, but to enjoy exclusively the effects of his deceased wife. 2 Black's Com. 515, 516. Hoskins v. Miller, 2 Dev. N. C. Rep. 360. It seems to be the settled rule, that if the husband is reduced to the necessity of suing either at law or in equity in order to recover his deceased wife's choses in action, he must first administer on her estate and sue in the capacity of administrator.

• Heard v. Stanford, 3 P. Wms. 409, 411. Cases temp. Talb, 173. S C. Donnington v. Mitchell, 1 Green's N. J. Ch. Rep. 243. He is only liable as administrator on the estate of the wife for her debts, to the extent of the assets received by him. N. Y. Revised Statutes, vol. ii. p. 75.

husband. So, if after the husband has administered in part on his wife's estate, and dies, and administration de bonis non of the wife should be obtained by a third person, or by the next of kin of the wife, he would be deemed a mere trustee for the representatives of the husband.b

It has been considerably discussed in the books, by what title the husband, surviving his wife, takes her choses in action. It has often been said, that he takes by the statute of distributions as her next of kin. But, from the language of the English courts, it would seem to be more proper to say, that he takes under the statute of distributions as husband, with a right in that capacity to administer for his own benefit; for in the ordinary sense, neither the husband nor wife can be said to be next of kin to the other.c

What will amount to a change of property in action belonging to the wife, so as to prevent it from going back to the wife in case she survives her husband, was discussed in the case of Scuyler v. Hoyle.d It was there shown, that the husband may assign, for a valuable consideration, his wife's choses in action to a creditor, free from the wife's contingent *right of survivorship. The doctrine that the husband may assign

N. Y. Revised Statutes, vol. ii. p. 75. sec. 29.

*137

b Butler's note, 304. to lib. 3. Co. Litt. Elliott v. Collier, 3 Atk. Rep. 526. Spencer, J., 6 Johns. Rep. 118. 1 Hagg. Eccl. Rep. 341. Betts v. Kimpton, 2 B. & Adolphus, 273. See also Hunter v. Hallett, 1 Edw. Ch. Rep. 388 and infra, p. 411, 412. In Ohio the law is different. The husband is not next of kin to his wife for inheritance. He may administer on the estate of his deceased wife, but he must account not only to the creditors of the wife, but to the heirs, and therefore the husband cannot as survivor in his own right pursue her choses in action either in law or equity. Curry v. Fulkingon, 14 Ohio Rep. 100. So in Connecticut, the husband on the death of his wife does not become entitled as heir or survivor to her personal property. He does not take as administrator, but goes to her administrator for distribution. Baldwin v. Carter, 17 Conn. Rep. 201.

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3 Vesey, 246, 247. 14 Ibid. 381, 382. 15 Ibid. 537. 18 Ibid. 49, 55, 56.

& 5 Johns. Ch. Rep. 196.

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