real and personal assets be ing exhausted, to be reim bursed of assets subsequently fallen in. not be reimbursed out of assets, which happen to fall in subsequently. This rule was laid down by Lord Macclesfield in the case of Burton v. Pierpoint," where Mr. Pierwidow not point being seised of a reversion in fee expectant, on the. failure of his issue male, and being also seised in fee simple of another estate, devised to his wife her jewels and the use of his plate to her for her life, and all his real estates he devised subject to his debts and legacies, to his kinsman, Lord Dorchester. At the time of his death he left only two sons minors, and the real and personal assets of the testator being insufficient for the payment of his debts, the The paraphernalia were necessarily applied to that use. sons afterwards dying under age, the testator's reversion And in fee became assets liable to his debts under his will on the application of the widow, to be paid the amount of her jewels out of the accession of assets, the Chancellor held, that she had no claim to the amount of her jewels as paraphernalia, because when these jewels were applied to the payment of debts, there was a deficiency of assets; and though afterwards, upon a remote contingency, such as was not to be presumed or waited for, viz. a death without issue, assets had fallen in, yet that this should not alter the case as to bona paraphernalia. However, although his Lordship refused the amount of the jewels out of these assets to the widow as paraphernalia, yet he allowed it to her in the character of legatee, saying, that "as there was an express bequest of the jewels to the widow, although at the time of the death of the testator there were no assets, yet since afterwards assets had happened, there could be now no inconvenience to any creditor or others." It is questionable whether this distinction between the right of a legatée, and that of a widow claiming her paraphernalia out of assets falling in after the personal estate had been exhausted, would be now considered valid. For his Lordship gave as a reason for this latter decision, that it was a constant rule that a legatee, where the real estate is made o 2 P. Wms. 78. liable to pay debts, on the creditor's exhausting the personal assets, shall stand in the place of the creditors, and be paid out of the land. But it is as constant a rule that, in such a case, the widow whose paraphernalia have been applied in payment of the debts, shall stand in the place of the creditors, and be paid out of the land, and that too in preference to legatees, and this rule would be as good, if not a better reason, for giving the widow the amount of her jewels as peraphernalia, and not as a legacy, out of the newly acquired assets, the former being an elder and higher title than the latter. terest in Wife's inhusband's personal property, when he dies intes. tate. Statute of distribu As the husband cannot deprive his widow of her interest in her paraphernalia by his will, it is quite immaterial to her, so far as this claim is concerned, whether he dies intestate or not; but as the remaining part of his personal property is absolutely at his disposal, by any form of instrument, operating either during his life or after his death, it becomes important to inquire what interest she takes in it by surviving him, when he has died without exercising such power. And this interest is now regulated and ascertained by an act passed in the 22 & 23 Car. 2. c. 10., called tions. the statute of distributions. By this statute it is provided, that the surplusage of the goods, chattels, and credits of persons dying intestate, (all debts, funeral charges, and just expenses of every sort, being first allowed and deducted,) shall be distributed in the manner following, that is, one third part to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and their legal representatives, &c. &c. And in case there be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the said intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate, who are in equal degree, and those who equally represent them. terest in However, this statute of distributions does not affect the Wife's incustoms of the city of London, or the province of York, husband's or of any other place having a peculiar custom of distri- persoanlty by customs buting intestate's effects, as they are expressly excepted by of London and York. it. The custom of London and of York with respect to the distribution of an intestate's effects is, if the deceased leaves a widow and children, she has, in the first place, the widow's apparel, and the furniture of her chamber (which in London is called the widow's chamber); the remainder of his personalty is then divided into three parts, one of which belongs to the widow, another to the children, and the third to the administrator; if only a widow, or only children, they shall respectively, in either case, take one moiety, and the administrator the other; if neither widow nor child,. the administrator shall have the whole. And so far the widow had precisely the same share (with the exception of the widow's chamber) under the statute of distributions, and according to these customs; but the 1 Jac. 2. c. 17. greatly increased her share, as it declared that the share, hitherto allotted by the custom to the administrator, and called the dead man's share, should in future be divided according to the statute of distributions. And thus the widow has, in the event of an intestacy by her husband, where these customs exist, if there be no child, one half according to the custom, and the half of the dead man's share, according to this statute of James; if there be children, then she takes one third of the entire, according to the custom, and So that if a man die one third of the dead man's share. intestate, where these customs do not prevail, leaving no children, and his personalty, amounting to 18001., his widow will have only 9001. according to the statute of distributions; and if he leave children, then her share will be only 6001.; whereas, if the intestacy occur, where these customs do prevail, she takes, where there are no children, 13501.; and where there are children, her share amounts to 8001. Formerly the husband could not dispose by will of the widow's or the children's shares, to which they were entitled according to the custom; but by the 11 Geo. 1. c 18. freemen are now at liberty to bequeath their personal estates, as where the custom does not prevail. p 2 Black. Com. 518. Ld. Raym. 1329. Salk. 426. 101 CHAP. VII. OF THE ACTS BY WHICH THE WIFE'S RIGHT BY SURVIVORSHIP TO It has been seen in a preceding chapter, that the husband acquires, by the mere operation of the marriage, without the aid of any settlement, a property in his wife's chattels real, and in her choses in action, of which he has power to dispose at any time during his life; and that if he die in the lifetime of his wife, without having reduced them into possession, they will survive to her." And the reason of the rule is this, that the husband has not an absolute and unconditional property in these interest-, but only a right to make them his own by adopting proceedings for this purpose suited to their respective natures, and therefore if he should die without having exercised his dominion in this way, they continue undisturbed in the same plight in which he found them, and remain the property of the wife b It is to be observed, that whatever interests survive to the wife at law, the same kind of interests will survive to her in equity also. Her chattels real and her choses in action survive to her at law, and if they happen to be vested in a trustee for her, or to be of an equitable quality, they survive to her in equity, unless the hu-band has in his lifetime done some act to destroy this title. It therefore becomes important, with a view to the event of the wife surviving her husband, to inquire what acts or proceedings with respect to this description of her property will render his title to it complete and absolute, and will destroy her contingent right by survivorship. a Co. Lit 46. b. 351 a, b. b Burnet v. Kinaston, 2 Vern. 401. Prec. Chan, 118. Ld. Carteret v. Pas chal. 3 P. Wms, 197. Langham v. c 9 Ves. 98. Wife's survivorship may be barred by settlement, 1st, before marriage 2dly, after marriage, ance of set in pursu tlement before it, if it be adcquate. Wife's survivorship barred by expressed to be in consider ation of her tune. her And, in the first place, this right of the wife may be barred by a settlement made upon her before marriage, or by a settlement after marriage, in pursuance of an agreement before marriage. If the husband have purchased his wife's fortune, including her terms for years and choses in action by a settlement upon her, chance of it by survivorship is destroyed. But as it depends on the intention of the parties whether the settlement by the husband shall be deemed the purchase of the wife's fortune or of any part of it, it will be necessary to ascertain the requisites in an instrument of that nature for effecting such a purpose, and to point out the language which has been held to indicate such an intent. And a settlement adequate to the wife's fortune has been considered as amounting to a purchase of the entire of it, though there were no agreement between the parties to that effect," and consequently will bar her right by survivorship to such part of it as consists of terms for years or choses in action. So it seems that a settlement on marriage expressed to be in consideration of the portion, to which the wife was then settlement entitled, or should afterwards become entitled, would be considered the purchase of the entire of her fortune, whether legal or equitable, and would bar her contingent right entire for of survivorship in it, although it had not been reduced into possession by the husband in his lifetime. But if the settlement be expressed to be in consideration of part only of the wife's fortune, her right of survivorship will be affected as to that part only, and the remainder will survive to her, if it consist of chattels real, or of choses in action. Or if the settlement be expressed to be in consideration of a specified sum of money, being the amount of the wife's fortune at the time, or of the fortune (without specifying any amount) to which she was entitled at the time of the marriage, the husband will be the purchaser of so much only, and the wife will be barred of her right of survivor d Blois v. Lady Hertford, 2 Vern. 501. Cleland, v. Cleland, Prec. Chan. 63. e Garforth v. Bradley, 2 Ves. sen. 677. Mitford v. Mitford, 9 Ves. 96. f Cleland v. Cleland, Pr. Ch. 63. g Carr v. Taylor, 10 Ves. 574. |