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 (k) Co. Litt. 46. (1) Plowd. 263. band, and it will go to his executors, though he may not have reduced it into possession: but, if the settlement was made in consideration of a part only of the wife's fortune, then the remaining part, if not reduced by the husband into possession during his life, will survive to his wife; (Cleland v. Cleland, Prec. in Cha. 63;) for, the mere fact of his having made a settlement upon his wife at the time of the marriage, is not sufficient to entitle a husband to his wife's choses en action, or chattels; to constitute him a purchaser thereof, so as to exclude the wife's equity, there must be an agreement, either expressed or implied; (Salwey v. Salwey, Ambl. 693;) and, according to the modern cases, a settlement made by the husband is no purchase of the wife's equitable interests, or choses en action, unless such settlement either distinctly expresses it to be made in consideration of the wife's fortune; or the contents thereof altogether import that, and plainly import it, as much as if it were expressed. (Druce v. Dennison, 6 Ves. 395.) It is also well settled that, a settlement in consideration of the wife's fortune will be understood to have been intended to apply only to her fortune at the time; unless the settlement expressly, or by necessary implication, shows that it was the intention to comprehend all future property which might devolve upon the wife. Where no distinct agreement to (m) Co. Litt. 351. (n) Ibid. 300. that effect appears, should any subsequent accession of choses en action accrue to the wife, in such a shape that the husband cannot lay hold of it without the assistance of a court of equity, the wife will, according to the established rule of such courts, be entitled to an additional provision out of that additional fortune, as against either the husband or his assignee; (Ex parte O'Ferrall, 1 Glyn & Jameson, 348 ;) and if the husband die first, not having reduced the property into possession, nor having assigned it for valuable consideration, the whole will survive to the wife. (Mitford v. Mitford, 9 Ves. 95, 96; Carr v. Taylor, 10 Ves. 579; Burnett v. Kinaston, 2 Freem. 241, 2nd edit.; Wildman v. Wildman, 9 Ves. 177; Nash v. Nash, 2 Mad. 139.) But if the wife's property be of such a nature that the husband, or his assignees, can reach it by process of common law, there is no ground for the interposition of equity to restrain the exercise of the legal right. (Oswell v. Probert, 2 Ves. jun. 682; Attorney General v. Whorwood, 1 Ves. sen. 539; Macauley v. Phillips, 4 Ves. 18; Langham v. Nenny, 3 Ves. 469; Jewson v. Moulson, 2 Atk. 420; Purdew v. Jackson, 1 Russ. 54.) Stock, standing in the books of the. Bank of England in the names of trustees, is a chose en action, and in a question of survivorship must be so considered. (Scawen v. Blunt, 7 Ves. 300.) he has made no disposition thereof in his life-time, and dies before his wife, he cannot dispose of it by will(0): 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 (q); 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 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). (s) Co. Litt. 351. (6) If a bond or note be given to a feme sole, who afterwards marries, it cannot be put in suit after the coverture by the husband alone: but, where a bond or promissory note is given to a feme coverte the interest in such bond or note immediately vests in the husband, so far as to enable him to maintain an action upon it in his own name; though he may join his wife's name as a co-plaintiff in the action. (Philliskirk v. Pluckwell, 2 Mau. & Sel. 396; Holloway v. Lightbourne, 2 Mad. 136, n.; Howell v. Maine, 3 Lev. 403.) For a legacy given to his wife, the husband cannot bring his bill, without making the wife a party, in order that her equity to have a provision secured to her thereout may be attended to. (Clarke v. Lord Angier, 2 Freem. 160.) If husband and wife exhibit a bill in right of the wife, and the husband dies, the wife may proceed without filing a bill of revivor: (Anonym. 3 Atk. 726; Pary v. Juxon, 3 Cha. Rep. 40; Backhouse v. Middleton, 2 Freem. 132, 2d edit.): but, the wife is not bound to proceed in the cause, and if she does not choose to do so, she is not liable to costs previously incurred: though, if she takes any step in the suit after her husband's death, she makes herself liable to the costs from the beginning. (Mitf. Pl. 47.) (7) Mr. Christian observes, that "by 29 Car. II. c. 3, s. 25, the husband shall have administration of all his wife's personal estate which he did not reduce into his possession before her death, and shall retain it to his own use: and if he dies before administration is granted to him, or he has recovered his wife's property, the right to it passes to his personal representative, and not to the wife's next of kin. (1 P. Wms. 378; Butl. Co. Litt. 351.)" (8) The doctrine that jewels can never revest in the wife after her marriage, is qualified in the next paragraph of the text. property in her naments. 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. 911; 2 Leon. 166. (9) The right of a widow to bona paraphernalia is preferable to that of a legatee; (Snelson v. Corbet, 3 Atk. 369; Seymour v. Tresilian, 3 Atk. 358;) but gives place to the demands of the creditors of her deceased husband: (Campion v. Campion, 17 Ves. 273; Wilson v. Pack, Prec. in Cha. 297; Lady Tyrrell's case, in Append. to 2nd edit. of 2 Freem. 304 :) though even this latter doctrine is qualified, by the decisions which hold that, the claim to paraphernalia is not to be disappointed by the effect of the option of a creditor who has a double fund to resort to: (Aldrich v. Cooper, 8 Ves. 397) if the husband's personal estate, therefore, has been exhausted by specialty creditors, who have swept (x) Noy's Max. c. 49; Grahme v. away the widow's paraphernalia, she VII. By judg ment. her necessary apparel is protected even against the claim of creditors (z). 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 whatsoever, 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 by statutes, recoverable in actions popular. 1. Such penalties as are given by particular statutes, to be recovered on an action popular; or, in other words, to be recovered by him or them that will sue for the same. Such as the penalty of 500l. which those persons are by several acts of parliament made liable to forfeit, that, being (z) Noy's Max. c. 49. Ridout v. Earl of Plymouth, 2 Atk. Wms. 544.) A wife who, by articles before marriage, is by express words barred of every thing she could otherwise claim out of her husband's personal estate, has no right to paraphernalia. (Read v. Snell, 2 Atk. 644.) |
