Negotiable instruments. right to them by survivorship, it may be observed, that a mere intention to reduce such choses in action into possession will not be sufficient. The acts to effect that purpose must be such as to change the property in them, or, in other words, must be something to divest the wife's right, and to make that of the husband absolute; such as a judgment recovered in an action by him alone, or an award of execution upon a judgment recovered by him and his wife, or receipt of the money, or a decree in equity for payment of the money to him, or to be applied to his use a. Therefore, a mere appropriation by the husband of a legacy left to his wife, by bequeathing it to his wife for life, and afterwards among his children, has been held to be insufficient to change the property, for it was a chose in action belonging to the wife which could not be recovered except through the medium of a suit in equity, to which she must have been a party ". So, a transfer of stock into the wife's name to which she became entitled during the marriage, will not be considered as a transfer to her husband. But a transfer into the husband's sole name will, it seems, change the property d, unless it be made to him as trustee only. Where A. purchased stock in the joint names of himself and wife, and afterwards bequeathed the same, as his property, away from his wife; it was held, that the stock became the absolute property of the wife surviving. So if a negotiable instrument, as a promissory note or bill of exchange, be given to the wife before or during the marriage; the mere possession of it by the husband will not change the property in it, so as to defeat her right by survivorship, unless he recovers upon it in his lifetime; for it is a chose in action. So if a bond be given to the wife during the coverture a. So where money was left in the hands of trustees for the benefit of the wife, and her husband made no disposition of it during his lifetime; it was held, that she was entitled to it by survivorship. But there are other methods by law, besides actual reduction Modes of defeating a into possession, by which the husband is allowed to exercise wife's title his legal right over his wife's choses in action, and to defeat her by survivorship. title by survivorship ;-viz., by the disposition of her interest in such of them as are legally transferable by assignment, without any distinction whether the interest be immediate or in remainder; and the passing and extinguishment of her interest in such of them as are not assignable, by release. Thus, the husband acquires such an interest in the debts due to his wife, as to enable him to release them, so as to bind her. So also he may release all rights accruing to her during the marriage d. He may release a legacy left to her, although she die before the time of payment arrives . "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 where she has a right or duty, which by no possibility can accrue to her during the coverture, there the husband cannot release it." f Whenever the property is so limited to the wife, that it cannot possibly fall into possession during the marriage, the husband has no power to dispose of it. As if a lease were made to the husband and wife for their lives, and to the executors of the survivor, the husband could not release or dispose of the remainder against the title of his wife surviving him; because it could not possibly come into possession during the marriage, and the wife's interest, or chance, was a mere possibility 8. a Coppin v., 2 P. Wms. 497. Touchst. 333. e Anon. 2 Roll. 134. And see 10 Rep. 51. b. Per Holt, C. J., 1 Salk. 327. 1 8 2 Roll, Ab. 48. 10 Rep. 51. have a se- can have no SECTION II. WIFE'S SEPARATE ESTATE. A wife may THOUGH by the common law the wife is incapable of enjoying real or personal estate, separate from and independent of her husband, and though in general her property vests in the husband by the marriage, yet under certain circumstances, she may enjoy a separate property, over which her husband has no control. As if property be vested in trustees before marriage, to enable the wife to carry on business upon her sole account, trustees by and for her separate use, the disability of coverture will be so marriage settlement. far removed, that the transaction will be established against the husband and his creditors. In such case, the trustees of the wife will be entitled to the property assigned, and to its increase and profits, for her sole and separate use and benefit. The law considers the wife as the agent of her own trustees, and her possession as their possession. Thus, where by a settlement before marriage, reciting an agreement, that the wife's stock in trade, &c., should be assigned to trustees for her separate use and benefit, to the intent that she might carry on the trade at her own risk and charges, and for her own separate and exclusive benefit, she assigned to A. all her stock in trade and effects, and all book debts, &c., in trust for her separate use; there was not any schedule of the property annexed to the deed, or referred to; after the marriage she carried on the business (of a milliner) in the same house with her husband, but in a separate apartment; he paid the rent of the house, and was at the expense of fitting up the shop; the husband having become a bankrupt; the court held, that his assignees were not entitled to her property, for A., the trustee, was the real owner of it, and it was not in the order and disposition of the husband with the consent of the real owner, to make the case fall within the statute. The wife's possession of the goods was as agent of the trustee. And the want of a schedule to the deed, specifying the property assigned, was immaterial, for it would have. So given no public notice or information, and it would have been only known to the persons interested in the settlement". where by a settlement before marriage, thirty-two cows, &c., and the increase and produce arising therefrom, were assigned to trustees for the separate use of the wife, the husband covenanting to permit her to carry on the trade of a cow-keeper to her separate use; after marriage, the wife, with the profits of her trade, purchased four more cows; held, that the settlement was good against the creditors of the husband, and that the cows purchased after the marriage were also protected by it. With respect to the latter, Mr. Justice Buller said it was the same as if the wife had paid the produce arising from the original cows to the trustees, and they had purchased the other cows, for she had acted as the agent of the trustees b. So where a feme sole, who kept a horse and chaise to visit. her customers, by deed conveyed to trustees "all her household furniture, goods, and chattels, (specified in a schedule, in which the horse and chaise were not included,) and all her stock in trade, and other articles belonging to her in and about her business; after marriage she used the horse and chaise as before; held, that the horse and chaise passed to the trustees, as belonging to her in and about her business, and that they were not liable to be taken in execution for the debts of her husband. Regularly, when property is intended to be given or settled upon married women for their separate uses, it ought to be vested in trustees for them; but even though such precaution be not observed, still in equity, the intention will be effectuated, and the wife's interest will be protected by the conversion of her husband into a trustee for her d. A wife's property may be limited by a marriage settlement to her husband, until he becomes insolvent, and from that event, a Jarman v. Woolloton, 3 T. R. 618. Haselington v. Gill, 3 Doug. 415. 3 T. R. 620. n. Dean v. Brown, 5 B. & C. 336. 8 D. & R. 95. 2 C. & P. 62. d 2 Roper, 152. Bennet v. Davis, 2 P. Wms. 316. Per Lord Eldon, in Rich v. Cockell, 9 Ves. 375. Parker v. Brook, id. 583. A disposition by a woman of her property, pending a treaty of marriage, in fraud of her hus band, will be void as against him. to the wife's separate use for life a. But a husband cannot before marriage, settle his property, so as, by express stipulation, with a view to future insolvency, to give his wife, in that event, any part of his property b. Though in strictness a husband has no right to any of his wife's property before marriage, and in general the wife can dispose of her fortune as she pleases before that event, yet, if after the commencement of a treaty for marriage the wife should make a voluntary disposition of her property, without the knowledge or concurrence of her intended husband, such disposition will in general be void, as being a fraud on his marital rights. But in applying the principle upon which conveyances made by the intended wife, pending a treaty of marriage, are avoided upon the ground of fraud on the marital right, the court will take into consideration the meritorious object of such conveyances, and the situation of the intended husband in point of pecuniary means. Therefore where, pending a treaty of marriage, a conveyance was made by the intended wife as a provision for the children of a former marriage, the court refused to set it aside. So where a conveyance was made to a sister, and the husband was presumed to have notice of the assignment before marriage. But the concurrence of the husband in the settlement precludes all objection on this ground f. a Lockyer v. Savage, 2 Stra. 947. Ex parte Hinton, 14 Ves. 598. Ex parte Cooke, 8 Ves. 354. b Higgingbotham v. Holme, 19 Ves. 88. Ex parte Hodgson, id. 206. Ex parte Murphy, 1 Scho. & Lef. 44. Higginson v. Kelly, 1 Rose, 369. с The Countess of Strathmore v. Bowes, 1 Ves. jun. 28. Howard v. Hooker, 1 Eq. Cas. Ab. 59. 2 Ch. Rep. 81. Carleton v. Dorset, 2 Ver. 17. Hunt v. Mathews, 1 Ver. 408. Goddard v. Snow, 1 Russ. 485. 1 Roper, 165, et seq. d King v. Cotton, 2 P. Wms. 674. See Newstead v. Searles, 1 Atk. 265. e St. George v. Wake, 1 Mylne & K. 610. f Id. Slocombe v. Glubb, 2 Bro. C. C. 545. |