Sivut kuvina

ther it be in possession, or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As, in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture (k): if he be outlawed or attainted, it shall be forfeited to the king (1); it is liable to execution for his debts (m); and, if he survives his wife, it is to all intents and purposes his own (n). Yet, if

[blocks in formation]

band, and it will go to his executors, that effect appears, should any subsethough he may not have reduced it quent accession of choses en action ac. into possession : but, if the settle- crue to the wife, in such a shape that ment was made in consideration of a the husband cannot lay hold of it part only of the wife's fortune, then without the assistance of a court of the remaining part, if not reduced by equity, the wife will, according to the the husband into possession during established rule of such courts, be enhis life, will survive to his wife ; (Čle- titled to an additional provision out of land v. Cleland, Prec. in Cha. 63 ;) that additional fortune, as against eifor, the mere fact of his having made ther the husband or his assignee ; (Ex a settlement upon his wife at the time parte OʻFerrall, 1 Glyn & Jameson, of the marriage, is not sufficient to 348 ;) and if the husband die first, not entitle a husband to his wife's choses having reduced the property into posen action, or chattels ; to constitute session, nor having assigned it forvalu. him a purchaser thereof, so as to ex- able consideration, the whole will sur. clude the wife's equity, there must be vive to the wife. (Mitford v. Mitford, an agreement, either expressed or 9 Ves. 95, 96; Carr v. Taylor, 10 Ves. implied ; (Salwey v. Salwey, Ambl. 579; Burnett v. Kinaston, 2 Freem. 693 ;) and, according to the modern 241, 2nd edit. ; Wildman v. Wildman, cases, a settlement made by the hus. 9 Ves. 177 ; Nash v. Nash, 2 Mad. band is no purchase of the wife's 139.) But if the wife's property be equitable interests, or choses en action, of such a nature that the husband, or unless such settlement either distinct. his assignees, can reach it by process ly expresses it to be made in consider- of common law, there is no ground ation of the wife's fortune; or the for the interposition of equity to recontents thereof altogether import strain the exercise of the legal right. that, and plainly import it, as much as (Oswell v. Probert, 2 Ves. jun. 682 ; if it were expressed. (Druce v. Denni. Attorney General v. Whorwood, i son, 6 Ves. 395.) It is also well settled Ves. sen. 539; Macauley v. Phillips, that, a settlement in consideration of 4 Ves. 18 ; Langham v. Nenny, 3 the wife's fortune will be understood Ves. 469; Jewson v. Moulson, 2 Atk. to have been intended to apply only 420 ; Purdew v. Jackson, 1 Russ. 54.) to her fortune at the time ; unless the Stock, standing in the books of the settlement expressly, or by necessary Bank of England in the names of implication, shows that it was the in- trustees, is a chose en action, and in a tention to comprehend all future pro- question of survivorship must be so perty which might devolve upon the considered. (Scawen v. Blunt, 7 Ves. wife. Where no distinct agreement to 300.)


[ocr errors]

he has made no disposition thereof in his life-time, and dies before his wife, he cannot dispose of it by will (o): for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her ancient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action : as debts upon bond, contracts, and the like: these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law. And, upon such receipt or recovery, they are absolutely and entirely his own; and shall

go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But, if he dies before he has recovered or reduced them into possession, so that, at his death, they still continue choses in action, they shall survive to the wife ; for the husband never exerted the power he had of obtaining an exclusive property in them (p). And so, if an estray comes into the wife's franchise, and the husband seizes it, it is absolutely his property: but, if he dies without seizing it, his executors are not now at liberty to seize it, but the wife or her heirs (9); for the husband never exerted the right he had, which right determined with the coverture. Thus, in both these species of property the law is the same, in case the wife survives the husband; but, in case the husband survives the wife, the law is very different with respect to chattels real and choses in action : for he shall have *the chattel real by survivor- [ * 435 ] ship, but not the chose in action (r); except in the case of arrears of rent, due to the wife before her coverture, which, in case of her death, are given to the husband by statute 32 Hen. VIII. c. 37. And the reason for the general law is this: that the husband is in absolute possession of the chattel real during the coverture, by a kind of joint-tenancy with his wife; wherefore the law will not wrest it out of his hands, and give it to her representatives; though, in case he had died first, it would have survived to the wife, unless he thought proper in his life-time to alter the possession. But a chose in action shall not survive to him, because he never was in possession of it at all, during the coverture; and the

[ocr errors]
[ocr errors]
[blocks in formation]

only method he had to gain possession of it, was by suing in his wife's right(6): but as, after her death, he cannot (as husband) bring an action in her right, because they are no longer one and the same person in law, therefore he can never (as such) recover the possession. But he still will be entitled to be her administrator; and may, in that capacity, recover such things in action as became due to her before or during the coverture (7).

Thus, and upon these reasons, stands the law between husband and wife, with regard to chattels real and choses in action : but, as to chattels personal (or choses) in possession, which the wife hath in her own right, as ready money, jewels (8), household goods, and the like, the husband hath therein an immediate and absolute property, devolved to him by the marriage, not only potentially, but in fact, which never can again revest in the wife or her representatives (s).

(8) Co. Litt. 351.

(6) If a bond or note be given to a 40; Backhouse v. Middleton, 2 Freem. feme sole, who afterwards marries, it 132, 2d edit.): but, the wife is not cannot be put in suit after the cover- bound to proceed in the cause, and if ture by the husband alone : but, she does not choose to do so, she is where a bond or promissory note is not liable to costs previously incurrgiven to a feme coverte the interest in ed: though, if she takes any step in such bond or note immediately vests the suit after her husband's death, she in the husband, so far as to enable makes herself liable to the costs from him to maintain an action upon it in the beginning. (Mitf. Pl. 47.) his own name; though he may join (7) Mr. Christian observes, that his wife's name as a co-plaintiff in the " by 29 Car. II. c. 3, s. 25, the husaction. (Philliskirk v. Pluckwell, 2 band shall have administration of all Mau. & Sel. 396 ; Holloway v. Light- his wife's personal estate which he bourne, 2 Mad. 136, n.; Howell v. did not reduce into his possession Maine, 3 Lev. 403.)

before her death, and shall retain it For a legacy given to his wife, the to his own use : and if he dies before husband cannot bring his bill, without administration is granted to him, or making the wife a party, in order that he has recovered his wife's property, her equity to have a provision secured the right to it passes to his personal to her thereout may be attended to. representative, and not to the wife's (Clarke v. Lord Angier, 2 Freem. next of kin. (1 P. Wms. 378; Butl. 160.)

Co. Litt. 351.)” If husband and wife exhibit a bill (8) The doctrine that jewels can in right of the wife, and the husband never revest in the wife after her dies, the wife may proceed without marriage, is qualified in the next pafiling a bill of revivor: (Anonym. 3 ragraph of the text. Atk. 726 ; Pary v. Juxon, 3 Cha. Rep.

property in her

And, as the husband may thus generally acquire a pro- of the wife's perty in all the personal substance of the wife, so in one apparel and orparticular instance the wife may acquire a property in some of her husband's goods; which shall remain to her after his death, and not go to his executors. These are called her paraphernalia ; *which is a term borrowed from the civil [ * 436 ] law (t), and is derived from the Greek language, signifying something over and above her dower. Our law uses it to signify the apparel and ornaments of the wife, suitable to her rank and degree ; and therefore even the jewels of a peeress, usually worn by her, have been held to be paraphernalia (u). These she becomes entitled to at the death of her husband, over and above her jointure or dower, and preferably to all other representatives (w). Neither can the husband devise by his will such ornaments and jewels of his wife; though during his life perhaps he hath the power (if unkindly inclined to exert it) to sell them or give them away (x). But if she continues in the use of them till his death, she shall afterwards retain them against his executors and administrators, and all other persons except creditors where there is a deficiency of assets (y) (9). And

(t) Ff. 23, 3, 9, s. 3.
(u) Moor, 213.
(w) Cro. Car. 343; 1 Roll. Abr.

2 Leon. 166.

(x) Noy's Max. c. 49; Grahme v. Lord Londonderry, 24 Nov. 1746, Canc. [reported in 3 Atk. 394.]

(y) 1 P. Wms. 730.

911 ;

(9) The right of a widow to bona away the widow's paraphernalia, she paraphernalia is preferable to that of will be allowed, in equity, to stand in a legatee; (Snelson v. Corbet, 3 Atk. their place, so as to come upon the 369 ; Seymour v. Tresilian, 3 Atk. real assets of her husband for the 358 ;) but gives place to the demands value of her paraphernalia. (Snelson of the creditors of her deceased hus- v. Corbet, 3 Atk. 369; Lord Town. band : (Campion v. Campion, 17 Ves. send v. Windham, 2 Ves. sen. 7.) 273; Wilson v. Pack, Prec. in Cha. The widow has this equity as against 297 ; Lady Tyrrell's case, in Append. her husband's heir-at-law, to whom to 2nd edit. of 2 Freem. 304:) though his real estates have descended ; (Proeven this latter doctrine is qualified, bert v. Morgan, 1 Atk. 441 ;) à for. by the decisions which hold that, the tiori, if the husband has created a claim to paraphernalia is not to be trust estate for payment of debts, the disappointed by the effect of the option wife will be admitted as a creditor for of a creditor who has a double fund the value of her paraphernalia, if these to resort to : (Aldrich v. Cooper, 8 have been seized for her husband's Ves. 397 :) if the husband's personal debts. (Northey v. Northey, 2 Atk. estate, therefore, has been exhausted 78; Boynton v. Boynton, 1 Cox, 106; by specialty creditors, who have swept Tipping v. Tipping, 1 P. Wms. 729;

[ocr errors]
[ocr errors]



her necessary apparel is protected even against the claim of

creditors (z).
VII. By judg- VII. A judgment, in consequence of some suit or action

in a court of justice, is frequently the means of vesting the
right and property of chattel interests in the prevailing
party. And here we must be careful to distinguish between
property, the right of which is before vested in the party,
and of which only possession is recovered by suit or action;
and property, to which a man before had no determinate
title or certain claim, but he gains as well the right as the
possession by the process and judgment of the law. Of the
former sort are all debts and choses in action; as, if a man
gives bond for 201. or agrees to buy a horse at a stated sum,
or takes up goods of a tradesman upon an implied contract
to pay as much as they are reasonably worth : in all these
cases the right accrues to the creditor, and is completely
vested in him, at the time of the bond being sealed, or the
contract or agreement made; and the law only gives him a

remedy to recover the possession of that right, which already [ 437 ] in justice belongs to him. *But there is also a species of

property to which a man has not any claim or title whatso-
ever, till after suit commenced and judgment obtained in a
court of law : where the right and the remedy do not follow
each other, as in common cases, but accrue at one and the
same time; and where, before judgment had, no man can
say that he has any absolute property, either in possession

or in action. Of this nature are,
1. Of penalties 1. Such penalties as are given by particular statutes, to
by statutes, re-

be recovered on an action popular; or, in other words, to actions popular.

be recovered by him or them that will sue for the same.
Such as the penalty of 5001. which those persons are by
several acts of parliament made liable to forfeit, that, being

coverable in

(2) Noy's Max. c. 49.

Ridout v. Earl of Plymouth, 2 Atk.

Wms. 544.)
105.) But whether the widow has A wife who, by articles before mar-
the same equity as against a devisee riage, is by express words barred of
(not being a devisee in trust for pay- every thing she could otherwise claim
ment of debts, and the lands devised out of her husband's personal estate,
not being expressly charged there. has no right to paraphernalia. (Read
with,) is not quite so clear. (See Mr. v. Snell, 2 Atk. 644.)
Cox's note to Tynte v. Tynte, 2 P.

[ocr errors]
« EdellinenJatka »