law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative. (c) Whereas, in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and, therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it. (d) For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs but his executors; so if it be made to John, bishop of Oxford, and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the *death of the present owner until the successor be appointed: and this is contrary to the nature of a chattel interest, which can never be in [ *432 ] abeyance or without an owner; (e) but a man's right therein, when once suspended, is gone forever. This is not the case in corporations aggregate, where the right is never in suspense; nor in the other sole corporations before mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right; the chattel interest therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go to or be acquired by them in right of succession. (ƒ) Yet to this rule there are two exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors. (g) The other exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus the chamberlain of London, who is a corporation sole, may, by the custom of London, take bonds and recognizances to himself and his successors, for the benefit of the orphan's fund: (h) but it will not follow from thence, that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund; for that also is not warranted by the custom. Wherefore, upon the whole, we may close this head with laying down this general rule; that such right of succession to chattels is universally inherent by the common law in all aggregate corporations, in the king, and in such single corporations as represent a [*433] number of persons; and may, by special custom, belong to certain other sole corporations for some particular purposes; although generally, in sole corporations, no such right can exist. (1) VI. A sixth method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband with the same degree of property and with the same powers, as the wife, when sole, had over them. (c) Dyer, 48. Cro. Eliz. 464. (f) Co. Litt. 46. (d) Co. Litt. 46. (1) [Thus, the ornaments of the chapel of a preceding bishop belong to his successor, and the bishop may take such chattels in succession.] This depends entirely on the notion of an unity of person between the husband and wife; it being held that they are one person in law, (i) so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. (2) And hence it follows, that whatever personal property belonged to the wife, before marriage, is by marriage absolutely vested in the husband. In a real estate, he only gains a title to the rents and profits during coverture; for that, depending upon feudal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him; unless, by the birth of a child, he becomes tenant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them: for unless he reduces them to possession, by exercising some act of ownership upon them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined. (3) (i) See Book I, c. 15. (2) The tendency of legislation in the United States is to the utter abrogation of this doctrine, so far as civil rights depend upon it, and to leave property rights existing at the time of the marriage wholly unchanged by that relation. The tendency further is to remove the disability under which the married woman lay at the common law, to acquire and take property, real and personal, generally for her own use, and to control and dispose of the same; and the statutes of some of the states now declare that she shall have the same power and right in these particulars that she would have had if unmarried. Except as modified by these statutes, the English rules so fully stated by Mr. Chitty in the following note, are still in force in the United States. As to the reduction of the wife's choses to possession by the husband, further reference is made to Poor v. Hazelton, 15 N. H. 565; Van Epps v. Van Deusen, 4 Paige, 64; Mardree v. Mardree, 9 Ired. 295; Searing v. Searing, 9 Paige, 283. And as to the protection of the wife's equity in the property she brings her husband, for the benefit and support of herself and her children, to Kenney v. Udall, Cow. 590; Van Epps v. Van Deusen, 4 Paige, 64; Smith v. Kane, 2 id. 303; Moore v. Moore, 14 B. Monr. 259; 2 Kent, 139 et seq.; Story Eq. Juris. § 1402, 1420, and cases cited. (3) [It seems to be, at present, clearly held, that a deed by which the husband assigns his wife's contingent or reversionary chattel interests, is not such a reduction thereof into possession by him, as to give even a qualified title to his assignee, if the wife prove to be the survivor. Pardew v. Jackson, 1 Russ. 50; Hornsby v. Lee, 2 Mad. 20. And though, in Gage v. Acton, 1 Salk. 327, Chief Justice Holt said, that when the wife has any right or duty, which by possibility may happen to accrue during the marriage, the husband may, by release, discharge it; this dictum cannot now be relied on, without qualifying it by a condition, that the possibility shall actually come into possession during the coverture. Keeping this restriction in mind, there is no doubt that a wife's possibilities are assignable by her husband, for a valuable consideration; though the assignee may be compelled to make some provision for the wife, when the subject of assignment is of such a nature, that when the contingency has happened, it cannot be reached without the aid of equity: Johnson v. Johnson, 1 Jac. and Walk. 477; Beresford v. Hobson, 1 Mad. 373; Lloyd v. Williams, 1 id. 457; and it seems, that courts of equity do not merely act in analogy to the legal doctrine, but were the first to hold that such assignment by the husband ought to be supported. Grey v. Kentish, 1 Atk. 280; Hawkyns v. Obyn, 2 id. 551; Bates v. Dandy, id. 208; Duke of Chandos v. Talbot, 2 P. Wms. 608, and cases there cited; Spragg v. Blinkes, 5 Ves. 588. It appears settled, however, that where the wife's interest was such that the husband could not, even for valuable consideration, have released it at law, equity will not assist him. Thus, if the reversion could not possibly fall into possession during the husband's life,-for instance, if it were a reversion upon his own death,-there the husband's release, or assignment, would be invalid at law; and clearly, the wife's consent would not be taken, in order to give it effect in equity. Dalbiac v. Dalbiac, 16 Ves. 122. So, if a woman, before marriage, stipulate that her property shall revert to her own absolute disposal in the event of her surviving her husband, or if a bequest be made to her, accompanied with direction, and no power of disposition over the fund, during the marriage, be reserved by her, in one case, or given to her, in the other, there it would obviously be to defeat the plain object of the settlement, or will, if the wife, while under the possible influence of her husband, were permitted, either by examination in court, or by any other act during the coverture, to dispose of her right of survivorship. Richards v. Chambers, 10 Ves. 586; Lee v. Muggeridge, 1 Ves. and Bea. 123. An assignment by a husband, to a particular assignee, of a chose en action, or equitable interest, given to his wife for her life only (such assignment being made for valuable consideration, and at a time when the husband was maintaining his wife), will, it seems, not only be supported, but the purchaser will not be bound to make any provision for the wife. Elliot v. Cordell, 5 Mad. 156; Wright v. Morley, 11 Ves. 18; Mitford v. Mitford, 9 id. 100. Equity, Chap. 29.] TITLE BY MARRIAGE. There is therefore a very considerable difference in the acquisition of this [*434] species of property by the husband, *according to the subject matter; viz., whether it be a chattel real or chattel personal; and, of chattels personal, whether 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 he has made no disposition thereof in his lifetime, 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. (4) And upon such receipt or recovery they are absolutely and entirely his (k) Co. Litt. 46. (n) Ibid. 300. (m) Co. Litt. 351. (1) Plowd. 263. however, will not allow the general assignee under a commission of bankruptcy against a husband, to obtain possession of such property, without making some provision for the wife; since, when the title of such last described assignee vests, the incapacity of the husband to maintain his wife has already raised this equity in her favor. Elliott v. Čordell, ubi supra; and where the right to the whole equitable interest, or chose en action, was in the wife, absolutely, and not for life only, there, the preponderance of modern authority (after considerable fluctuation of judicial opinion), seems fully to establish, that the wife's right to a provision cannot be resisted by the particular assignee of her husband, more than by his general assignee. Johnson v. Johnson, 1 Jac. and Walk. 477; Like v. Berseford, 3 Ves. 512; Macaulay v. Philips, 4 id. 19; Beresford v. Hobson, 1 Mad. 373; Earl of Salisbury v. Newton, 1 Eden, 371; Oswell v. Probert, 2 Ves. Jun. 682. When a husband makes a settlement in consideration of the wife's whole fortune, whatever fortune she then has, notwithstanding it may consist entirely of choses en action, is looked on as purchased by the husband, 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 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 assignee: Ex Parte O'Ferrall, 1 Glyn and 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 id. 579; Burnett v. Kinaston, 2 Freem. 241, 2d ed.; 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; Macaulay v. Phillips, 4 Ves. 18; Langham v. Nenny, 3 id. 469; Jewson v. Moulson, 2 Atk. 420; Purdew . Jackson, í Russ. 54.] (4) [If a bill or note be made to a feme-sole, and she afterwards marry, being possessed of the note, the property vests in the husband, and he may indorse it or sue alone for the recovery of the amount: 3 Wils. 5; 1 B. and A. 218; for these instruments, when in possession of the wife, are to be considered rather as chattels personal, than choses en action. Id. The transfer of 617 VOL. I.-78 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; (g) 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 [*435] chattel real by survivorship, but not the chose en action; (r) except in the case of arrears for 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 lifetime 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; 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 become due to her before or during the coverture. (5) 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, 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) And, as the husband may thus generally acquire a property in all the personal substance of the wife, so in one particular 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 law, (t) and is derived from [*436] 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 (P) Co. Litt. 351. (q) Ibid. (r) 3 Mod. 188. (8) Co. Litt. 351. (1) Ff. 23, 3, 9, § 3. stock into the wife's name, to which she became entitled during the marriage, will not be considered as payment or transfer to her husband, so as to defeat her right by survivorship: 9 Ves. 174; 16 id. 413; but if it is transferred into his name, it is a reduction of it into his possession. 1 Roper's Law of Hus. and Wife, 218. So if a promissory note be given to the wife, the husband's receipt of the interest thereon will not defeat the right of the wife by survivorship. 2 Madd. 133. But where the husband does and can bring an action for a chose in action of the wife, in his own name, and dies after judgment, leaving his wife surviving, his representatives will be entitled. If, however, she is joined, she will be entitled, and may have a scire facias upon such judgment. 1 Vern. 396; 2 Ves. Sen. 677; 12 Mod. 346; 3 Lev. 403; Noy, 70. And if previously to marriage she had obtained a judgment, and afterwards she and her husband sued out a scire facias and had an award of execution, and she died before execution, the property would be changed by the award, and belong to the husband as the survivor. 1 Salk. 116; Roper L. Hus. and Wife, 1 vol. 210.] (5) [By 29 Carr. 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; but he must first pay his wife's debts before coverture; and if he die 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; 1 Mod. 231; Butler's Co. Litt. 351; 1 Wils. 168.] 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) And her necessary apparel is protected even against the claim of creditors. (z) (6) 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. (7) 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 the judgment of the law. Of the former sort (u) Moor. 213. (x) Noy's Max. c. 49. (y) 1 P. Wins. 730. (w) Cro. Car. 343. 1 Roll. Abr. 911. 2 Leon. 166. (6) [The husband may dispose absolutely of his wife's jewels or other paraphernalia in his lifetime. 3 Atk. 394. And although after his death they are liable to his debts, if his personal estate is exhausted, yet the widow may recover from the heir the amount of what she is obliged to pay in consequence of her husband's specialty creditors obtaining payment out of her paraphernalia. 1 P. Wms. 730; 3 Atk. 369, 393. But she is not entitled to them after his death, if she has barred herself by an agreement before marriage of every thing she could claim out of his personal estate either by the common law or custom. 2 Atk. 642. Where the husband permits the wife to make profit of certain articles for her own use, or in consideration of her supplying the family with particular necessaries, or makes her a yearly allowance for keeping house, the profits or savings will be considered in equity as the wife's own separate estate. Sir P. Neal's case, cited in Herbert v. Herbert, Pre. Ch. 44; 3 P. Wins. 337; 2 Eq. Ca. Abr. 156, in marg.; except as against creditors, Pre. Ch. 297; see also 1 Vern. 244; 2 id. 535; 1 Eq. Ca. Abr. 346, pl. 18; 1 Atk. 278. And she may dispose of her separate estate by anticipation, and her right of alienation is absolute, unless she is expressly restrained by the settlement. Jackson v. Hobhouse, 2 Meriv. 483; 11 Ves. 222; 1 Ves. Jun. 189; 3 Bro. C. C. 340, S. C.; 12 Ves. 501; 14 id. 302. A husband's agreement before marriage that a wife shall have separate property, converts him into her trustee: see 1 Ventr. 193; 29 Ch. II, c. 3, s. 4; 1 Ves. Jun. 196; 12 Ves. 67; unless by fraud of the husband he prevents the agreement from being reduced to writing. Montacute v. Maxwell, 1 P. Wms. 620; 1 Stra. 236, S. C.] The statutes of the American states not only save to the widow her own paraphernalia, but generally give her also the wearing apparel and personal ornaments of the husband, besides setting apart for her use other personal property to some specified amount, to the exclusion of the claims of creditors. In some of the states, also, the court having jurisdiction in the settlement of the estate is empowered to make provisions from the assets for the support of the widow and children, if any, while the settlement is in progress. (7) And sometimes also in the defeated party; for if the plaintiff in an action of trespass de bonis asportatis, or trover, recovers judgment and obtains satisfaction, the title to the property is transferred from the plaintiff to the defendant; the damages recovered being considered in law the price of the chattel so transferred. And indeed it has in several cases been held that the judgment alone, without satisfaction, will change the property. Brown v. Wotton, Cro. Jac. 73; Adams v. Broughton, Strange, 1078; Rogers v. Moors, 1 Rice, 60; White v. Philbrick, 5 Greenl. 147; Carlisle v. Burley, 3 id. 250; Murrell v. Johnson's Adm'r, 1 H. and M. 452; Floyd v. Browne, 1 Rawle, 121; Marsh v. Pier, 4 id. 273; Fox v. Northern Liberties, 3 W. and S. 107; Merrick's Estate, 5 W. and S. 17; Foreman v. Neilson, 2 Rich. Eq. 287; Hunt v. Bates, 7 R. I. 217. But there are many other cases which treat the judgment as a security merely, which does not deprive the plaintiff of any other right until the security has actually been made available by producing payment. Sturtevant v. Waterbury, 2 Hall, 449; Curtis v. Groat, 6 Johns. 168; Osterhout v. Roberts, 8 Cow. 43; Morris v. Berkley, 2 Rep. Con. Ct. 228; Sanderson v. Caldwell, 2 Aiken. 203; Elliott v. Porter, 5 Dana, 299; Campbell v. Phelps, 1 Pick. 70, per Wilde J.; Sharp v. Gray, 5 B. Monr. 4; Hepburn v. Sewell, 5 Har. and J. 211; Spivey v. Morris, 18 Ala. 254; Drake v. Mitchell, 3 East, 258, per Ellenborough, Ch. J.; Cooper v. Shepherd, 3 C. B. 266. And this seems the most reasonable doctrine. |