Page images
PDF
EPUB

THE CON

STRUCTION OF
A WILL.

FOR SETTLING mulations in trust, for all such and so many of them, the said C. B., party hereto, F. E., I. H., and A. B., party hereto, as have attained, or shall attain their age of twentythree years, or have married, or shall marry, with such consent as is required by the said codicil of the 2nd day of January, 1834, in equal shares and proportions as tenants As to the other in common; and as to the other moiety or equal half-part moiety. of the said trust monies, stocks, funds, and securities, interest, dividends, annual proceeds, and accumulations, in trust, for all such and so many of the said six children of the said T. S., living at the death of the said A. B., deceased, as have attained or shall attain their age of twentythree years, or have married or shall marry with such consent as is required by the said codicil of the 2nd day of January, 1834, in equal shares and proportions as tenants in common: AND EACH of them the said D. E., A. B., party hereto, M. B. and R. S., so far as relates to his and her Own acts and deeds, and the acts and deeds of his and her executors and administrators, and the said D. E. and R. S., also, so far as relates to the acts and deeds of their respective wives (f), (both during coverture, and after they may

Several covenants, by all parties, for themselves and wives, with the executors, to fulfil the arrangement.

Reasons for in-
troducing the
covenants in
the text.

Assignments, by the husband,

of the wife's

choses in action.

(ƒ) These covenants are of very little value as regards the acts of the covenantors themselves; the whole transaction is of an equitable nature, and the preceding agreement is quite as effectual in binding all the parties who are under no disability as any covenant could be. But considerable parts of the testator's assets were not realised so as to be divisible among the legatees at the date of the agreement; and the married women would only be bound with respect to such parts of the property as should be reduced into possession during their coverture. If they survived their husbands, they could set aside the agreement, so far as it affected any of the testator's property which remained outstanding at the deaths of their husbands. Hence, it became necessary to secure their concurrence by obtaining covenants from the husbands for the ratification of the agreement by their respective wives; and these covenants were extended to the form given in the text, in order that they might likewise serve as covenants for further assurance.

For the full understanding of the preceding remarks, it will be needful to explain the law with respect to the interest of the husband and his assigns, in the choses in action of the wife.

The leading principle on the subject is thus stated by Lord Coke

have become discovert); and of the executors and admini- FOR SETTLING strators of their respective wives, doth hereby, for himself

(Co. Lit. 351. b.). "Marriage is an absolute gift of all chattels personal in possession in the wife's own right, whether the husband survive the wife or no; but if they be in action, as debts by obligation, contract, or otherwise, the husband shall not have them unless he and his wife recover them." Thus, where a chose in action of the wife is sought to be bound by a decree in equity, if the husband dies before the thing ceases to be a chose in action, that is, before there is an order for payment of the money, the surviving wife is entitled. (Nanney v. Martin, 1 Cha. Ca. 27; see, however, infra, as to what is a reduction into possession). If a husband become bankrupt or insolvent, and die before his wife, the interest in a sum of money belonging to the wife, but which is not reduced into possession during the husband's life, does not go to the assignees, but survives to the wife. (Grey v. Kentish, 1 Atk. 280; S. C. 1 P. Wms. 459, Cox's Note; Gayer v. Wilkinson, 1 Bro. C. C. 50, n.; 2 Dick. 492; Mitford v. Mitford, 9 Ves. 87; Hornsby v. Lee, 2 Mad. 16). But it was long supposed, that, although the law was thus established with respect to the rights of the husband and his general assignees; yet, that a particular assignee for a valuable consideration of the specific chose in action acquired a new right, superior to that of the wife by survivorship: in fact, that the assignment by the husband operated as a reduction into possession. There seems to be no principle on which this doctrine can be maintained; and, it is now well settled, that an assignment by the husband of his wife's choses in action is not binding on the wife if he die before her, and without having reduced them into possession. (Hornsby v. Lee, 2 Mad. 16; Purdew v. Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65; Watson v. Dennis, 3 Russ. 90; Stamper v. Barker, 5 Mad. 157). And, of course, it is of no avail, that the wife executes the assignment, because the assignment is treated as and is simply a contract, and the wife, being under disability, is unable to bind herself by contract. (See the cases above). And as the wife's claim, by survivorship, to her choses in action, cannot be affected till they are reduced into possession; so neither can the equity which she has to a settlement out of such part of her perty as the husband cannot reach without the aid of a court of equity, be destroyed. (Pope v. Crashaw, 4 Bro. C. C. 326; Worrall v. Marlar, 1 Cox, 153; 1 Cox's P. Wms'. Note (1), p. 458; Earl of Salisbury v. Newton, 1 Eden, 370; Kensington v. Dollond, 2 My. & Ke. 184; Ex parte O'Ferrall, 1 Glyn & Jam. 347; Ex parte Thompson, 1 Deac. 90). And this (as will be seen from the cases) holds good, both against the assignees in bankruptcy and insolvency of the husband, and against his particular assignees, except in one case: that is, where an equitable life-interest is given to the

[blocks in formation]

pro

THE CONSTRUCTION OF

A WILL.

Wife's equity to a settlement, out of her choses in ac

tion, cannot be destroyed.

FOR SETTLING and herself, his and her heirs, executors, and administrators, covenant with the said N. P., G. H., and C. B., party

THE CON

STRUCTION OF

A WILL.

Wife's equity personal to her

self.

Wife's equity may be barred by antenuptial contract,

--or payment to the husband.

No separate examination of

a married woman taken to

in action.

wife, the husband, or his particular assignee, for valuable consideration, is permitted to enjoy it without the consent of the wife, and without making any provision for her. (Elliott v. Cordell, 5 Mad. 149; Stanton v. Hall, 2 Russ. & My. 180). But, as this right depends on the supposed ability of the husband to support the wife, if that ability obviously ceases at the date of the act of assignment, i. e. if the husband become bankrupt or insolvent, the wife's equity to a settlement arises against the general assignees. (Elliott v. Cordell, ubi supra, and cases there cited).

The equity to a settlement is, however, personal to the wife; and, although the settlement usually ordered includes a provision for the children, yet the wife may waive the right without any regard to their interest. (Murray v. Lord Elibank, 10 Ves. 84; S. C. 13 Ves. 1; Fenner v. Taylor, 2 Russ. & My. 190; In the matter of Anne Walker, Lloyd & Goold, 299; see, however, Barker v. Lee, 6 Mad. 330; the children have no equity if the wife be dead; Scriven v. Tapley, 2 Eden. 337; S. C. Amb. 509; or if she have gained the whole interest by survivorship; Johnson v. Johnson, 1 Jac. & Walk. 472). But, if the wife assert her claim and die without abandoning it, the children have a good claim to a settlement. (Steinmetz v. Halthin, 1 Glyn & Jam. 64; Johnson v. Johnson, 1 Jac. & Walk. 479; Groves v. Clark, 1 Keen, 132; S. C. 6 Sim. 584; Lloyd v. Williams, 1 Mad. 450).

The wife's equity may be barred by a settlement made before marriage, and containing a contract to that effect; (Salwey v. Salwey, Amb. 692, Blunt's Edition; and the cases cited, note (2); Garforth v. Bradley, 2 Ves. Senr. 675; Lady Elibank v. Montolieu, 5 Ves. 737); or by the trustee of the fund having paid the fund to the husband before any suit has been instituted. (10 Ves. 90, 4 Ves. 18). It is unnecessary here to refer to the cases which bear on the amount or proportion of the property which the wife can require; but it may be observed, that in no case has she any claim to the whole. (Wright v. Morley, 11 Ves. 12; Beresford v. Hobson, 1 Mad. 362, 379; Ex parte Thompson, 1 Deac. 90).

A court of equity will not permit a wife, by means of a separate examination, to pass her interest, or bar her equity in a fund which is reversionary, or not reduced into possession, or is unascertained; pass her choses (Richards v. Chambers, 10 Ves. 580; Pickards v. Roberts, 3 Mad. 584; Woollands v. Crowcher, 12 Ves. 174; Wade v. Saunders, Turn. & Russ. 306); although, before the statute 3 & 4 Will. 4, c. 74, the reversionary interest of a married woman in real estate might have been barred by a fine, even where that interest was contingent. Since the statute, it is clear, that a married woman may, by virtue of

Married wo

hereto, and each of them, their and each of their executors and administrators, that they the said D. E., F. E.,

the 77th section, convey a vested reversionary interest. (Ex parte Gill, 1 Bing. N. C. 168*). But, as a contingent interest can no longer be conveyed by any means, except in equity, as a matter of contract, it is doubtful whether a married woman can now dispose of a contingent interest, as it is not clear, whether the 77th section of the act gives a married woman power to contract as a feme sole. The Irish act, 4 & 5 Will. 4, c. 92, s. 22, enables contingent interests in real estate in Ireland to be conveyed by deed like other reversionary interest.

FOR SETTLING

THE CONSTRUCTION OF

A WILL.

man's power to dispose of a contingent reversion in real

estate.

of.

Mode of dealing with the

An important decision, which follows directly from the principles Wife's entire laid down in the former part of this note, has recently been reported; life-interest in namely, that if an annuity or a life-interest in personalty be given not be disposed personalty canto a married woman, and be not settled, for her separate use, neither she nor her husband can effectually dispose of her entire life-interest, because she may outlive her husband, and then, as to such part of it as would be enjoyed by her after the coverture determined her interest, would be reversionary only. (Stiffe v. Everitt, 1 My. & Cra. 37). But, in this case, or in the case of Richards v. Chambers, (ubi supra), where the wife's equity to a settlement cannot arise, there will be no difficulty in disposing of her interest, because the event of her outliving her husband, and repudiating the disposition, may be guarded against, by effecting appropriate insurances. In the cases where the wife's equity to a settlement arises, the only way in which a disposition of the wife's choses in action can be effected, is by taking a covenant from the husband, that she shall ratify the disposition. This is the mode pursued in the text, and is sufficiently available in cases in which the covenant of the husband is one which can be relied on for furnishing a proper indemnity.

Of course, if an annuity or life-interest be given to the separate use of a married woman, and she be not restrained from anticipation, she can dispose of it in her husband's lifetime. (Major v. Lansley, 2 Russ. & My. 355).

The question with regard to the disposition of the choses in action of a married woman, most frequently arises in cases in which the choses in action are reversionary interests; but the rule of law applies full as much to immediate interests, when not in possession, (Pierce v. Thornely, 2 Sim. 167; Amhurst v. Selby, 11 Vin. 377, pl. 8; see, too, Mitford v. Mitford, 9 Ves. 87; Hornsby v. Lee, 2 Mad. 16), where the husband died after the event on which the interest

* See the Corrigenda to the volume, shewing that, in line six from top, for "contingent," should be read “vested reversionary."

interests of

married wo

men.

Immediate, as

well as reversionary, interests within the rule.

FOR SETTLING A. B., party hereto, M. B., R. S., and T. S., respectively, and their respective executors and administrators, shall

THE CON

STRUCTION OF

A WILL.

Husband can dispose of the reversionary terms of years of his wife.

Release by the husband of his wife's choses in action.

Whether the

is as survivor or administrator.

became immediate, but before the reduction into possession. It is not the interest being reversionary, but its being a chose in action, which disables the husband from disposing of it. (See, however, Ripley v. Woods, 2 Sim. 165). The precedent in the text is an example of the interest being immediate, but not being reduced into possession.

The principles previously laid down do not affect the right of the husband to assign a reversionary term of years belonging to his wife ; for a term of years is not a chose in action; and it is now settled, that the reversionary interest, whether legal or equitable, of a wife, in a term of years, may be disposed of by the husband, although he do not survive his wife, and die before the reversion falls into possession. (Donne v. Hart, 2 Russ. & Myl. 360). And it is of no consequence that the wife's interest in the term is contingent, and that the husband dies before the contingency is determined. (Id.; see, too, 1 Russ. 9, n. (b); Co. Lit. 351. a. note 11). But if the husband do not, in his lifetime, dispose of a term belonging to his wife, and die in her lifetime, it will survive to her, as against his representatives: if he outlive his wife, the term will survive to him. (See the above authorities, and Co. Lit. 46. b.; Moody v. Matthews, 7 Ves. 183).

The law with respect to the operation of the husband's release on the wife's choses in action is not well settled. In Gage v. Acton, (1 Salk. 527; S. C. 1 Lord Raym. 515), Lord 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." But this was a mere dictum, uttered upon a point totally different from that which the court had then to decide, and by a judge who, in the discussion in which he uttered them, was in a minority. The same doctrine seems, however, to be assumed in Lord Carteret v. Paschal, 3 P. Wms. 199. But, from other cases, it seems clear, that if the wife's chose in action is in contingency, depending on the event of survivorship, the husband may release his own right, but he cannot bar or release hers. (Belcher v. Hudson, Cro. Jac. 222; S. C. Yelv. 156; Clark v. Thomson, Cro. Jac. 571).

In all cases in which the wife's right, by survivorship, would be husband's right barred by the husband having reduced her chose in action into possession in his lifetime, there, in the event of his surviving her, he may bring an action for such choses in action, in his own right, and not as administrator of his wife. (Forbes v. Phipps, 1 Eden, 502). In other cases, the husband must sue as administrator to his wife, and, in that character, will be entitled to all her personal estate which continued in action at her death. (1 Wms. Exors. 564). Fur

« PreviousContinue »