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. (h)7 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 in action will be assets in his hands. (i.) It is also settled, that if the husband, who *136 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 husband. (a) 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)

(h) Whitaker v. Whitaker, 6 Johns. 112. The statute of 29 Charles, II. ch. 3, § 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 Blacks. Com. 515, 516. Hoskins v. Miller, 2 Dev. (N. C.) 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.

(i) Heard v. Stamford, 3 P. Wms. 409, 411. Cases Temp. Talb. 173. Donnington v. Mitchell, 1 Green Ch. (N. J.) 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.

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

(b) Butler's note, 304, to lib. 3, Co. Litt. Elliot v. Collier, 3 Atk. 526. Spencer J.,

• The husband's right to administer on the estate of his deceased wife is not taken away by the New York Acts for the protection of the rights of married women. Shumway v. Cooper, 16 Barb. (N. Y.) 556. Nor have those statutes imposed upon the husband the duty of making distribution of that part of her separate estate which comes to his hands as administrator or by virtue of his marital rights; but after the payment of her debts, the residue belongs to him, as at common law. Ransom v. Nichols, 22 N. Y. 110. Ryder v. Herke, 24 N. Y. 372. 7 If a wife, entitled to a fund as cestui que trust, die, her husband surviving, he, as survivor, administrator, or distributee, is entitled to it. Rice v. Thompson, 14 B. Mon. (Ky.) 377. 1 Lockwood v. Stockholm, 11 Paige, 87.

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 distribution 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 distribution 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 Schuyler v. Hoyle. (d) 2 It was there shown, that the husband may assign,

for a valuable consideration, his wife's choses in action to *137 a creditor, free from the wife's contingent * right of sur

vivorship. The doctrine that the husband may assign the wife's choses in action for a valuable consideration, and thereby bar her of her right of survivorship in the debt, but subject, nevertheless, to the wife's equity, has been frequently declared, and is understood to be the rule best sustained by authority. Such an appropriation of the property is the exercise of an act of ownership for a valuable purpose, and an actual appropriation of the chattel

6 Johns. 118. 1 Hagg. Eccl. 341. Betts v. Kimpton, 2 B. & Adol. 273. See, also, Hunter v. Hallett, 1 Edw. Ch. 388, and infra, pp. 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. Fulkinson, 14 Ohio, 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 the property goes to her administrator for distribution. Baldwin v. Carter, 17 Conn. 201.

(c) 3 Vesey, 246, 247. 14 Ibid. 381, 382. 15 Ibid. 537. 18 Ibid. 49, 55, 56. (d) 5 Johns. Ch. 196.

2 Bartlett v. Van Zandt, 4 Sandf. Ch. 396. Latourette v. Williams, 1 Barb. (N. Y.) 9. In this last case it was held, that the pledge of a note of the wife by the husband, which he afterwards redeemed, was not such a reduction into possession as destroyed the interest of the wife. Harper v. Archer, 28 Miss. (6 Cush.) 212. And as to what constitutes a reduction to possession, see Holmes v. Holmes, 2 Wms. (28 Vt.) 765; Burr v. Sherwood, 3 Bradf. (N. Y.) 85; Corley v. Corley, 22 Geo. 178; Machem v. Machem, 28 Ala. 374; Gillespie v. Burleson, 28 Ala. 551; Lockhart v. Cameron, 29 Ala. 355; Lowery v. Craig, 30 Miss. (1 George) 19; McNeil v. Arnold, 17 Ark. 154; Walden v. Chambers, 7 Ohio (N. S.) 30; Needles v. Needles, 7 Ohio (N. S.) 432.

The receipt of a wife's distributive share, by agents appointed under a power of attorney, executed to the husband by the wife, is a reduction by the husband. Turton v. Turton, 6 Maryl. 375.

2

which the husband had a right to make. (a)1 But a voluntary assignment by the husband of the wife's choses in action without consideration, will not bind her, if she survives him. (b) The rule is, that if the husband appoints an attorney to receive the money, and he receives it, or if he mortgages the wife's choses in action, or assigns them without reservation, for a valuable consideration, or if he recovers her debt by a suit in his own name, or if he releases the debt, by taking a new security in his own name; in all these cases, upon his death, the right of survivorship in the wife to the property ceases. And if the husband obtains a judgment or decree, as to money to which he was entitled in right of his wife, and the suit was in his own name alone, the property vests in him by the recovery, and is so changed as to take away the right of survivorship in the wife. If the suit was in their joint names, and he died *before he had reduced the *138 property to possession, the wife, as survivor, would take the benefit of recovery. (a) It is settled, that in a suit in chancery by the husband to recover a legacy or distributive share due to the wife, she must be made a party with him, and then the court will require the husband to make a suitable provision for the wife out of the property. The Court of Chancery has always discovered an anxiety to provide for the wife out of her property in action

(a) Carteret v. Paschal, 3 P. Wms. 197. Bates v. Dandy, 2 Atk. 206. S. C. 1 Russell, 33, note. Jewson v. Moulson, 2 Atk. 417. Earl of Salisbury v. Newton, 1 Eden, 370. Sir William Grant, in Mitford v. Mitford, 9 Vesey, 87. Johnson v. Johnson, 1 Jac. & Walk. 472. Schuyler v. Hoyle, above cited. Kenney v. Udal, 5 Johns. Ch. 464, S. C. 3 Cowen, 590. Lowry v. Houston, 3 How. U. S. 394. Siter and another, Guardians of Jordan, 4 Rawle, 468. In this last case the assignment was sustained, not strictly as an assignment for a valuable consideration enuring to the husband, but on the very meritorious ground that the assignment of the wife's chose in action to trustees was for the benefit of her and her child. It was a reasonable anticipation by settlement, of a provision for the wife's equity, and valid in equity, though the fund was not reduced to possession before the execution of the assignment. But see the note a, infra, p. 138, where the power of the husband over the wife's rights in action is more limited.

(b) Burnett v. Kinnaston, 2 Vern. 401. Sir William Grant, in Mitford v. Mitford, 9 Vesey, 87. Sir Thomas Plumer, in Johnson v. Johnson, 1 Jac. & Walk. 472. Jewson v. Moulson, 2 Atk. 420. Saddington v. Kinsman, 1 Bro. C. C. 44. Hartman v. Dowdel, 1 Rawle, 279.

(a) Hilliard v. Hambridge, Aleyn, 36. Lord Hardwicke, in Garforth v. Bradley, 2 Vesey, 675. M'Dowl v. Charles, 6 Johns. Ch. 132. Searing v. Searing, 9 Paige, 283.

which the husband may seek to recover. If he takes possession in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife to the property if she survives him. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take, as survivor, instead of the personal representatives of the husband.

A general assignment in bankruptcy, or under insolvent laws, passes the wife's property, and her choses in action, but subject to her right of survivorship; and if the husband dies before the assignees have reduced the property to possession, it will survive to the wife, for the assignees possess the same rights as the husband before the bankruptcy, and none other. (b)1 It has been accordingly held, that a legacy in such stock was not reduced to possession by such an assignment, so as to bar the wife's right of survivorship, and the wife took it by survivorship as against the assignees. (c)

(b) Mitford v. Mitford, 9 Vesey, 87. Jewson v. Moulson, 2 Atk. 420. Gaynor v. Wilkinson, Dickens, 491. Saddington v. Kinsman, 1 Bro. C. C. 44. Van Epps v. Van Deusen, 4 Paige, 64. Pierce v. Thornely, 2 Sim., 167. Outcalt v. Van Winkle, 1 Green, Ch. (N. J.) 516. It is well settled that, at law, an assignment in bankruptcy will, of itself, bar the wife's contingent right of survivorship in a chose in action, and will bar a suit at law on a bond entered into by the wife dum sola. Miles v. Williams, 1 P. Wms. 249, in K. B. Bosvil v. Brander, 1 P. Wms. 458, in K. B. Michell v. Hughes, 6 Bing. 689. But in the late case of Mallory v. Vanderheyden, before Vice-Chancellor Parker, of the 3d circuit, New York Legal Observer for January, 1846, (No. 4, p. 4,) it was held, that though a discharge of the husband in bankruptcy would bar a suit at law against husband and wife for the debt of the wife dum sola, yet in equity, satisfaction could be had for the debt out of her separate estate, where there had been an appointment by her charging her separate estate with the debt. Vide infra, p. 146.

(c) Pierce v. Thornely, 2 Sim., 167, 180. It is difficult to reconcile the more ancient with the recent English equity cases, on the subject of the effect to be given to the husband's assignment of the wife's choses in action. Thus, in the cases of Chandos v. Talbot, 2 P. Wms. 601; Bates v. Dandy, 2 Atk. 207, and Hawkyns v. Obyn, Ibid. 549, the language is, that a contingent interest, or the possibility of a term, or a specific possibility of the wife, may be assigned by the husband for a valuable consideration, so as to bind his wife. But in Hornsby v. Lee, 2 Madd. Ch. 16, Purdew v. Jackson, 1 Russell, 70, and Honner v. Morton, 3 Ibid. 65, it is held, that the husband's assignment of the wife's reversionary interest will not bar her right as his survivor, provided the interest continues reversionary to his death. So, Sir William Grant, in Mitford v. Mitford, 9 Vesey, 87, doubted the soundness of the rule, that the husband's assignment for a valuable consideration passed the wife's chose in action, freed from her contingent right of survivorship, because, in that case, the purchaser would take a greater right than the

1 Moore v. Moore, 14 B. Mon. (Ky.) 259.

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

husband had. He admitted, however, that a distinction was constantly taken between assignments in bankruptcy, or 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, 70, the subject was discussed and re-argued 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 vice-chancellor. Again, in Horner v. Morton, 3 Russell, 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 reducing 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.3

These latter cases were reviewed in Siter and another, guardians of Jordan, 4 Rawle, 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 bonâ 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 between

To the same effect is Bugg v. Franklin, 4 Sneed (Tenn.) 129.

* In Elliott v. Cordell, 5 Madd. Ch. 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. & Eq. 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. 326. Arrington v. Yarborough, 1 Jones Eq. 72; but see Tuttle v. Fowler, 22 Conn. 58, and Manion v. Titsworth, 18 B. Mon. (Ky.) 582.