112

RAM ON ASSETS, DEBTS AND INCUMBRANCES.

SECTION III.

OF PERSONAL CHATTELS, WHICH ARE THE SEPARATE PROPERTY OF A WIFE.

A GIFT of personal chattels may be made to a wife's separate use; as in the instances where, during the marriage or coverture, the husband gave to her money;(1) a bracelet;(m) South Sea *Annui

[ *165 ] ties;(n) trinkets;(0) money saved "out of housekeep

ing;"(p) the profit of all butter, eggs, poultry, pigs, fruit, and other trivial matters," arising from a certain farm belonging to the husband, and " over and besides what was used in the family:"(q) as also in the instances where a present, made to the wife on her marriage, was made to her by her husband's father, of diamonds;(r) and where a gift to the wife, during the marriage, was made by the husband's father, of certain pieces of plate;(s) and by a friend, of a picture set about with diamonds. (t)

When on the marriage, or during the coverture, a present is by any person, except the husband, made to the wife, it would seem that, generally speaking, a Court of Equity interprets the gift to be made to the wife's separate use; if such present consists of diamonds, or other ornaments of her person.(u) And this interpretation has been made, where a gift during the coverture consisted of a picture set about with diamonds. (v) At law, a husband cannot, without the intervention of a trustee, make, during the coverture, a gift to his wife for her separate use, and to take effect in his life-time.(w) But in a Court of Equity such gifts are supported, although not made to a trustee for the wife.(x) Yet a gift of personal chattels from a husband to his wife, during the coverture, is not by a Court of Equity construed to be for her separate use, in other words, to make them her separate estate, (y) except in cases,(z) where there is a clear irrevocable gift, either to some person as a trustee, or by some clear and distinct act of the husband, by which he [ *166 ] divested himself of his property, and engaged to hold it as a trustee for the separate use of his wife;"(a) or, in nearly the same

(1) Flay v. Flay, 2 Freem. 64; Earl of Shaftsbury v. Countess of Shaftsbury, 2 Vern. 747; Bains v. Ballat, cited in Stanway v. Styles, 2 Eq. Cas. Abr. 156, in marg.; Calmady v. Calmady, cited 3 P. W. 339, and 2 Eq. Cas. Abr. 156, in marg.

(m) Flay v. Flay, 2 Freem. 64.

(n) Lucas v. Lucas, 1 Atk. 270, 1 West Cas. T. Hardw. 456, cited 3 Atk. 393, and 2 Swanst. 106.

(0) Countess Cowper's case, cited 1 Atk. 271, and 3 Atk. 393.

(p) Mangey v. Hungerford, cited in Stanway v. Styles, 2 Eq. Cas. Abr. 156, in marg.; probably Mrs. Hungerford's case, cited 1 Atk. 271, and 3 Atk. 393.

(9) Slanning v. Style, 3 P. W. 334.
(r) Graham v. Lord Londonderry, 3 Atk.

393.

(s) Brinkman v. Brinkman, cited 3 Atk.

394.

(t) Graham v. Lord Londonderry, above.
(u) Ibid.
(v) Ibid.

(z) Litt. S. 168; Co. Litt. 112 a.; 2 Vern. 385; 1 Atk. 271; 3 Atk. 72; 2 Swanst. 106.

(x) 1 Atk. 271; 3 Atk. 394; 2 Swanst. 105, 106.

(y) Lady Tyrrell's case, 1 Freem. 304; M'Lean v. Longlands, 5 Ves. 71; Walter v. Hodge, 2 Swanst. 92. See Izod v. Lamb, 1 Crompt. & Jerv. 44, 45.

(z) Slanning v. Style, 3 P. W. 334; Lucas v. Lucas, 1 Atk. 270, 1 West Cas. T. Hardw. 456, cited 2 Swanst. 106; Countess Cowper's case, cited 1 Atk. 271, and 3 Atk.

393.

(a) 5 Ves. 79, cited 2 Swanst. 104, 106.

words, where there is "a clear distinct act of the husband, by which he divested himself of the property, and agreed to hold it as a trustee for his wife;"(b) or, to the like effect, where there is "satisfactory evidence of an act constituting a transfer of the property, and sufficient transmutation of possession."(c)

Lord Hardwicke has held, that where a husband "expressly gives any thing to his wife, to be worn as ornaments of her person only, they are to be considered merely as paraphernalia; and it would be of bad consequence to consider them otherwise; for if they were looked upon as a gift to her separate use, she might dispose of them absolutely, which would be contrary to his intention."(d)

When a married woman possesses property to her separate use, the rents, interest, or dividends, or other yearly produce of it,(e) her savings out of it,(f) and personal or real property bought by her with either fund,(g) are likewise her separate estate.

A wife's separate estate, made so by the gift of any person, except her husband, is, in a Court of Equity, not assets for the payment of the husband's debts; (h) such gift being of either real (i) or personal(j) estate, and made either before the marriage, (k) *or during the cover

ture.(1) And a wife's pin-money, made her separate estate [ *167 ]

by the gift of her husband, by means of articles, or a settlement, executed previously to the marriage, and her savings out of it, and property, as jewels, bought by the wife with such pin-money, or separate estate, are not assets to pay the debts of the husband. (m) But if a husband during the coverture makes a gift to his wife of personal chattels, as of money, or some ornament of her person, as a bracelet; these, although given to the wife's separate use, are assets for the payment of the husband's debts.(n)

(b) 2 Swanst. 107. (c) Ibid.

(d) Graham v. Lord Londonderry, 3 Atk.

391.

(e) Gore v. Knight, 2 Vern. 535, Prec. Ch. 255; Gold v. Rutland, 1 Eq. Cas. Abr. 346, Ca 18; Lastly v. Eastly, 2 Eq. Cas. Abr. 148; Fettiplace v. Gorges, 1 Ves. jun. 49, 3 Bro. C. C. 8.

(f) Bletsow v. Sawyer, 1 Vern. 244; Slanning v. Style, 3 P. W. 334, 338; Stanway v. Styles, S. C., 2 Eq. Cas. Abr. 156, in marg.; Gold v. Rutland, 1 Eq. Cas. Abr. 346; Herbert v. Herbert, ibid. 66, Ca. 3, Prec. Ch. 44, and Sir Paul Neal's case, there cited; Hearle v. Greenbank, 3 Atk. 695, 709; Fettiplace v. Gorges, 1 Ves. jun. 49, 3 Bro. C. C. 8.

() Gore v. Knight, 2 Vern. 3d ed. 535, & n. (2), Prec. Ch. 255; Fowles v. Countess of Dorset, 4 Vin. Abr. 131, Ca. 5, 2 Eq. Cas.

Abr. 149, in marg.; Gold v. Rutland, Herbert v. Herbert, and Neal's case, above; Eastly v. Eastly, 2 Eq. Cas. Abr. 148; Offley v. Offley, Prec. Ch. 27; Willson v. Pack, ib. 295, 297; Peacock v. Monk, 2 Ves. 190.

(h) Vandenanker v. Desbrough, 2 Vern. 96; Herbert v. Herbert, and Neal's case, above. See also 5 Ves. 521.

(i) Bennet v. Davis, 2 P. W. 316; Vandenanker v. Desbrough, above.

(j) Kirk v. Paulin, 7 Vin. Abr. 95, pl. 43, 2 Eq. Cas. Abr. 115.

(k) See Ex parte Ray, 1 Madd. Rep. 199. (1) Kirk v. Paulin, and Bennet v. Davis, above.

(m) Herbert v. Herbert, Neal's case, and Willson v. Pack, above. See also Eastly v. Eastly, above; and 1 Crompt. & Jerv. 43.

(n) Flay v. Flay, 2 Freem. 64; Slanning v. Style, 3 P. W. 334, 339.

OF A RENT-CHARGE OF A WIFE; OF HER TERMS OF YEARS; AND OF HER CHOSES IN ACTION.

SECT. I. Of a Rent-charge of a Wife.

II. Of her Terms of Years.
III. Of her Choses in Action.

SECTION I.

OF A RENT-CHARGE OF A WIFE.

A RENT-CHARGE payable out of real estate is an incorporeal hereditament. It is property which may be inherited, or descend to the heir of the owner.(a) If the rent is granted for life, in tail, or in fee, it is freehold property, and the grantee is seised of it.(b) Yet the hereditament itself must be distinguished from the produce of it. For the produce, or rent become due or in arrear, is a chattel, and is not freehold property.(c) It appears to be called a chattel real; (d) and to be a chattel real in action.(e) If a woman seised of a rent-charge for life, in tail, or in fee, and payable out of real estate, marries, her husband and she are seised of the rent, namely the hereditament, in her right. During the coverture, the husband is entitled to receive the rent, that is, the produce; but the hereditament itself he alone cannot dispose of, but like other freehold estate of the wife, it will survive *to her, in case of her hus[ *169 ] band's death in her life-time.(f) If the wife dies leaving

the rent in arrear, become due both before and during the coverture; to the arrears due before the marriage, the surviving husband is entitled, not by the common law, but under the statute 32 Henry VIII. c. 37, s. 3.;(g) and to the arrears become due during the coverture, the husband is by the common law entitled by survivorship, and without, it should seem, taking out letters of administration to his wife.(h) But if the husband dies in the life-time of the wife, and leaving any part of the rent in arrear, unreduced into his possession, the wife is entitled to it by survivorship, and not the personal representative of the husband.(i) Of a rent-charge, the property of a wife, Sir Edward Coke speaks in the following terms. Having immediately before mentioned estates for

(a) Co. Litt. 6 a. 20 a.; 2 Bl. Com. 20, 41, 42; Gilb. on Rents, ed. 1792, p. 94, 95. (b) Co. Litt. 162 b., 351 a.; 2 Atk. 514; Gilb. on Rents, 94, 98.

(c) Co. Litt. 162 b., 351 a.; Gilb. on Rents, 98; Salwey v. Salwey, Amb. 692, 2 Dick. 434.

(g) On the application of this Statute to Copyholds, see Gilb. Ten. 187, 188.

(h) Co. Litt. 162 b., 351 a. & b.; 2 Bl. Com. 434, 435; Sharp v. Pool, cited 4 Co.

51.

(i) Co. Litt. 351 a.; Salwey v. Salwey, Amb. 692, 2 Dick. 434. See also Browne v. Dunnery, Hob. 208; Temple v. Temple, (e) Co. Litt. 251 a. & b.; 2 Dick. 435; Cro. Eliz. 791; and Withers v. Kelsea, 1

(d) Co. Litt. 351 a.; Amb. 693.

Amb. 693.

(ƒ) 2 Atk. 514.

Ch. Cas. 189.

years, by statute-merchant, statute-staple, elegit, wardships, and other "chattels real in possession," he proceeds: "Chattels real, consisting merely in action, the husband shall not have by the intermarriage, unless he recovereth them in the life of the wife, albeit he survive the wife; as a writ of right of ward, a valore maritagii, a forfeiture of marriage, and the like, whereunto the wife was entitled before the marriage. But chattels real being of a mixed nature, viz. partly in possession, and partly in action, which happen during the coverture, the husband shall have by the intermarriage, if he survive his wife, albeit he reduceth them not into possession in her life-time; but if the wife surviveth him, she shall have them. As if the husband be seised of a rent-service, charge, or seck, in the right of his wife, the rent become due during the coverture, the wife dieth, the husband shall have the arerages; but if the wife survive the husband, she shall have them, and not the executors of the husband. But if the arerages had become due before the marriage, there they were merely in action before the marriage; *and therefore the husband should not have them by the common law, [ *170 ] although he survived her. But now, by the statute 32 Henry VIII. c. 37, if the husband survive the wife, he shall have the arerages as well incurred before the marriage as after. (j)

SECTION II.

OF THE TERMS OF YEARS OF A WIFE.

1. Of a Legal Estate in Possession.-2. Of an Equitable Estate in Possession.-3. Of a Possibility, under an Executory Devise.

1. A TERM of years, the legal estate in possession of which a married woman is possessed of, either at the time of her marriage, or during the coverture, becomes, by the marriage,(k) to many purposes, the property of her husband. He is entittled, during the coverture, to sell,(7) mortgage,(m) or surrender(n) it, and also to dispose of it without a valuable consideration, as by a voluntary settlement of it.(0) He may likewise grant leases out of it;(p) and even a lease made in his life-time, to com

(j) Co. Litt. 351 a. & b.

(*) Sir W. Grant, speaking of a lease for years, the property of a woman at the time of her marriage, says, "Her husband could derive no other interest in her right than she had. The lease and right of renewal could pass to him only in the same plight and condition as she held them; and therefore subject to every equity, that would attach upon her. The husband, taking by marital right, is not esteemed a purchaser for valuable consideration.

He stands precisely in the place of his wife. That is laid down in Fitzgerald v. Lord Fauconberg, Fitz-Gib. 207 [2 Eq. Cas. Abr. 677, Ca. 3]." 7 Ves. 184.

(1) Co. Litt. 46 b., 351 a.; 2 Bl. C. 434. In Anon. 9 Mod. 43, husband and wife being

divorced a mensa et thoro, the Court of Chancery granted an injunction to restrain the husband from selling a term of years, which he possessed in her right.

(m) Co. Litt. 46 b., 351 a.; 2 Bl. C. 434; Yong v. Radford, Hob. 3; Watts v. Thomas, 2 P. W. 364.

(n) Co. Litt. 46 b., 351 a.; 2 Bl. C. 434. (0) Ibid.; 9 Ves. 98.

(p) Co. Litt. 46 b., 351 a.; Sym's case, Cro. Eliz. 33; Steed v. Cragh, 9 Mod. 42, cited 6 Ves. 395; Druce v. Denison, 6 Ves. 385, 394; which two last cases see on an agreement by the husband to lease, he dying before the lease made. And farther on a lease by the husband, see Loftus' case, Cro. Eliz. 279.

mence at his death, will, it appears, be valid.(g) Such a term of the wife *is, moreover, subject to the payment of her husband's [ *171 ] debts, by means of a judgment against him, and execution;(r) and, in case of his bankruptcy, it belongs to the assignees. (s) The husband is also, it should seem, entitled to dispose of the term, by a reference to arbitration, and an award thereon. (t) If he is outlawed, or is convicted of some offence, and such outlawry or conviction will occasion the forfeiture to the Crown of his own terms of years, the term of his wife will be forfeited also;(u) and if he commits suicide, the wife's term will, with his own goods and chattels, be forfeited to the Crown.(v) Notwithstanding a husband may, alone, and without his wife, dispose of her term of years in her life-time, in the ways mentioned, yet, during the coverture, the husband and wife are both possessed of the term, in the right of the wife; (w) and this possession of the wife is the reason, that the husband cannot, unless he survives his wife, dispose of the term by his will; for when the wife's possession continues to his death, it is not permitted to be divested by an act, which does not take effect until afterwards. (x) Also, the wife's interest in the term, in case she survives her husband, is not, it appears, bound by a judgment alone against the husband, where he dies before execution against him.(y) And if the husband charges the term, as by the grant of a rent-charge out of it, this charge will not bind the wife surviving. (z) If the husband survives his wife, the term then becomes his own property; (a) and he takes it as a surviving joint-tenant, without taking out letters of *administration [ *172 ] to his wife. (b) If the husband dies in the life-time of the wife, then the whole term, if not disposed of in his life-time, or so much of it as is not then disposed of, survives to the wife, and does not belong to the personal representatives of the husband. (c)

2. When a married woman is, either at the time of her marriage, or during the coverture, possessed of an equitable estate of a term of years in gross(d) in possession, the legal estate being in a trustee, and such equitable estate not being on her marriage, or during the coverture, settled to her separate use, (e) her husband is entitled to sell or mortgage

(q) Grute v. Locroft, Cro. Eliz. 287, cited 1 Co. 155, Mo. 395, and 1 Rol. Abr. 344, G. 13.

(r) Co. Litt. 351 a.; 2 Bl. C. 434; 1 P. W. 258. That a mortgage term of the wife may be sold to pay the husband's debts, see Packer v. Wyndham, Prec. Ch. 412. See also 2 Atk. 208.

(8) 1 Cooke Bk. L. 291, and 8th ed. 325; Eden Bk. L. 2d ed. 245.

(t) Anon. 2 Dyer, 183 a., Ca. 57, & n. in marg.

(u) Co. Litt. 351 a.; 2 Bl. C. 434; 3 Bl. C. 284; 4 Bl. C. 387.

(v) Hales v. Petit, Plowd. 257, cited 9 Co. 129 b., and 1 Hale P. C. 413.

(w) Plowd. 418.

(x) Plowd. 418; Co. Litt. 351 a.; 2 Bl. C. 434; 1 Rol. Abr. 344, G. 4.

(y) 1 Rol. Abr. 346, I. 4; 1 Prest. Abstr. 343.

(z) Fitzh. Abr. tit. Charge, 1; Bro. Abr. tit. Charge, 41; 1 Rol. Abr. 344, G. 5, 346,

I. 2; Co. Litt. 351 a.; Plowd. 418. See also
Litt. S. 286.

(a) Co. Litt. 46 b., 351 a.; 2 Bl. C. 434; Yong v. Radford, Hob. 3; Moody v. Matthews, 7 Ves. 174, 183, 184; which case see, on a renewable lease, charged by the wife before marriage with an annuity.

(b) Wrotsley v. Adams, 1 Rol. Abr. 345, H. 8; Pale v. Michell, 2 Eq. Cas. Abr. 138; Barnwell v. Russell, Gilb. Eq. Rep. 233. 2 Eq. Cas. Abr. 138;-Plowd. Quær. Qu. 265; 2 Bl. C. 435. See Doe v. Polgrean, 1 Hen. Bl. 535.

(c) Co. Litt. 46 b., 351 a.; 2 Bl. C. 434; Sym's case, Cro. Eliz. 33.

(d) On the trust of a term, which attends the inheritance of the wife, see Best v. Stamford, 2 Freem. 288, Prec. Ch. 252, 1 Salk.

154.

(e) Doyly v. Perfull, or Persall, 1 Ch. Cas. 225, 2 Freem. 138; Anon. March Rep. 88, Ca. 141; Bates v. Dandy, 2 Atk. 208.-1 Ch. Cas. 266, 1 Vern. 7.