against such judgment by reason of his not having received any property with his wife; nor, on the other hand, will a Court of Equity assist a creditor against a surviving husband, who has become discharged from his wife's liabilities by her death, by reason of his having acquired her property by the marriage (a). wife. Upon the death of the wife in the lifetime of the husband, Death of the rights arising out of contracts made with her before or during coverture, if not previously reduced into possession by the husband, pass to the administrator of the wife (b). Thus, upon a bond given to the wife during coverture, after the death of the wife, the husband can no longer sue in his own right, but can become entitled to sue only by obtaining administration to the wife (c). So, a promissory note made to the wife before marriage, upon the death of the wife in the lifetime of the husband, and before he has reduced it into possession, passes to the wife's administrator, who is the proper party to sue upon it (d). But contracts made with husband and wife jointly survive to the husband in his own right upon the death of the wife (e). Upon the death of the wife in the lifetime of the husband the liabilities contracted by her before marriage survive against her representatives, and her husband can be charged only as her administrator; unless the creditor has obtained judgment against him in the lifetime of the wife (f). into posses The reduction into possession by the husband, so as to ex- Reduction clude absolutely the interest of the wife, consists in some on by husact which gives the husband the possession of the chose in ac- band. tion, or what is equivalent thereto; as, in the case of a debt, the payment of the money to the husband or to his agent (g). Money paid to the wife is regarded in law as in the posses (a) Heard v. Stamford, 3 P. Wms. 409; Cases temp. Talb. 173; Woodman v. Chapman, 1 Camp. 189; and see Mitchinson v. Hewson, 7 T. R. 348. (b) Betts v. Kimpton, 2 B. & Ad. 273. (c) Day v. Tadrone, 2 M. & S. 396 n. (b). (d) Hart v. Stephens, 6 Q. B. 937. (e) Coppin v., 2 P. Wms. 496; and seeante, p. 216. (f) See ante, p. 632. (g) See 1 Roper, Husb. and Wife, 2nd ed. 208, 222; and see Purdewv. Jackson, 1 Russ. 1; Scarpellini v. Atcheson, 7 Q. B. 864, 875. sion by hus band. Reduction sion of the husband, though it is the proceeds of property into posses- held by trustees for her separate use; so that where the wife received such money and lent it to the defendant, it was held to have been reduced into possession, and that the husband must sue for it in his own name only during the coverture, and was entitled to sue in his own right after the wife's death (a). A promissory note had been given to the wife before marriage, and the husband had received the interest on the note during the life of the wife; it was held that he had not thereby reduced the note into possession, but upon the wife's death it passed to her administrator (b). If an action is brought in the names of husband and wife upon a contract of the wife before marriage, and the husband dies before judgment, the right of action survives to the wife who may, by entering a suggestion of her husband's death upon the record, prosecute the suit to judgment for her own sole use; and even if the husband dies after judgment, but before execution, the benefit of the judgment will survive to the wife (c); and the wife surviving is not bound by the undertakings of the husband in the action (d). If the wife dies in the lifetime of the husband pending such action, the suit abates, and the benefit of the contract devolves upon the wife's administrator (e). If the husband in his lifetime brings an action in his own name upon a contract in respect of which he might have joined his wife, it is said to amount to an election to take it himself and exclude the interest of the wife, so that upon his death it would not survive to her (ƒ). In equity, where the husband assigns a chose in action of his wife for valuable consideration, and dies before either he or the assignee has actually obtained possession of it, leaving the wife surviving,-whether the chose in action was reversionary, so that it could not have been reduced into pos (a) Bird v. Peagrum, 13 C. B. 639 ; 22 L. J. C. P. 166; see Sloper v. Cottrell, 6 E. & B. 497; 26 L. J. Q. B. 7. (b) Hart v. Stephens, 6 Q. B. 937. (c) Gaters v. Madeley, 6 M. & W. 423, 427; Sherrington v. Yates, 12 M. & W. 855, 865; Anon. 3 Atk. 726. 14. (d) Lee v. Armstrong, 9 M. & W. (e) Checchi v. Powell, 6 B. & C. 253. (f) Gaters v. Madeley, 6 M. & W. 423, 426; Garforth v. Bradley, 2 Ves. sen. 675, 676. session, or whether it was not reduced into possession through neglect,-in either case the wife surviving will be entitled as against the assignee for valuable consideration (a). ruptcy of Upon the bankruptcy of the husband the debts and choses Bankin action to which he is entitled in right of his wife become husband. vested in the assignees, who have like remedy to recover the same in their own names as the bankrupt himself might have had if he had not been adjudged bankrupt (b). The assignees are not entitled to sue in their own names only for the recovery of debts, for which the husband could not have sued without joining the wife, as on a promissory note made to the wife before her marriage (c); they must sue in their own names jointly with that of the wife for the recovery of debts in respect of which it would have been necessary for the husband to join the wife (d). Upon the death of the bankrupt husband before a chose in action of the wife is reduced into possession, the right of survivorship of the wife prevails over the right of the assignees (e). The bankruptcy of the husband during the marriage discharges the debts of the wife for which the husband has become liable by reason of the marriage, both as against the husband and the wife (ƒ). Upon a divorce the wife becomes solely entitled, " as if at Divorce. the date of the divorce, her husband had died, and restored her to the position of a feme sole," to all the rights arising out of contracts which have accrued in her right before or during the coverture and which have not been reduced into possession by the husband during the coverture (g). (a) Ellison v. Elwin, 13 Simon, 309; Ashby v. Ashby, 1 Coll. 553; Purdew v. Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65; Hutchings v. Smith, 9 Sim. 137; Story, Eq. Jur. § 1412. (b) See post, p. 645. (c) Sherrington v. Yates, 12 M. & W. 855. (d) Richbell v. Alexander, 10 C. B. N. S. 324; 30 L. J. C. P. 268. (e) Mitford v. Mitford, 9 Ves. 87; Hornsby v. Lee, 2 Madd. 16; Sher- (f) Miles v. Williams, 1 P. Wms. (g) Wells v. Malbon, 31 Beav. 48; 31 L. J. C. 344; as to the effect of judicial separation and of an order of protection of property under the Divorce and Matrimonial Causes Act, see ante, p. 237. CHAP. VI. SECT. IV. ASSIGNMENT OF CONTRACTS BY DEATH. Right of executor upon contracts of deceased. Liability of executor AN executor or administrator becomes entitled, in general, to all the debts and rights of contract to which the deceased was entitled at the time of his death (a). As a contract is not assignable at law, the executor or administrator is alone. entitled to maintain an action at law upon a contract of the deceased, although the deceased may have assigned the benefit of it in his lifetime; the assignee is not entitled to sue in his own name (b). So, the executor is alone entitled at law to maintain an action upon the contract, although the benefit of it may have been bequeathed by the will of the deceased, and although the executor may be bound, in the distribution of assets, to transfer the benefit to the legatee (c). If there be more than one executor, they jointly represent the testator and take the legal interest in his estate; therefore they must sue jointly on the contracts made with him («); but if some of the executors are omitted as plaintiffs, the defendant can object only by a plea in abatement (e). And if some of the executors enter into a new contract, though in the course of administration of the estate, they may alone sue upon it without joining the other executors (ƒ). An executor or administrator is liable, in general, to the extent of the assets which come to his hands to be adminis (a) 1 Wms. Ex. 5th ed. 700; 1 Wms. Saund. 216 a, n. (1). (b) See ante, p. 601; Brandt v. Heatig, 2 Moore, 184. (c) Canham v. Rust, 8 Taunt. 227. (d) Wms. Ex. 5th ed. 818; 1692; Foxwist v. Tremaine, 2 Wms. Saund. 212; a plea that one of the plaintiffs, executors, had renounced was held bad, Creswick v. Woodhead, 4 M. & G. 811; but renunciation may now be effected under 20 & 21 Vict. c. 77, s. 79. see In the goods of Whitham, 1 Weekly Notes, 408. (e) Wins. Ex. 5th ed. 1693. (f) Brassington v. Ault, 2 Bing. 177; and see Heath v. Chilton, 12 M. & W. 632. ceased. tered, upon all the contracts of the deceased remaining un- upon condischarged at his death (a). Accordingly, the executor or ad- tracts of deministrator is liable, so far as he has assets, for debts of every description due from the deceased, either debts of record, as judgments, statutes, or recognizances; or debts due on special contract, as for rent or on bonds, covenants or the like under seal; or debts on simple contracts, as notes unsealed, and promises not in writing either expressed or implied (b). If there be several executors, all who have proved the will must be joined as defendants; if some only are sued, they may plead in abatement the non-joinder of other executors who have proved; but it is not necessary to join those executors who have not proved (e). of heir and A person may also charge his real assets in the hands of Liability his heir or devisee by a contract under seal in which he binds devisee. himself and his heirs, or covenants for himself and his heirs, with an express designation of his heirs in the contract. Under such contract the heir was liable by the common law to the extent of the lands or real assets descended to him from the covenantor or obligor; but there was no remedy upon such contracts against a devisee of the lands (d). The law was altered in this respect by the statute 3 Wm. & Mary, c. 14, for which the statute 1 Wm. IV. c. 47 has been substituted. By s. 2 of that Act it is enacted to the effect that all wills and testamentary dispositions of any lands tenements or hereditaments shall be deemed, as against such person with whom the person making any such will or testamentary dispositions shall have entered into any bond, covenant, or other specialty binding his heirs, to be void. And by s. 3, for the means that such creditors may be enabled to recover upon such bonds, covenants, and other specialties, that every such creditor shall have his action upon the said bonds, covenants, and specialties against the heir of such obligor, or covenantor, and such devisee or the devisee of such (a) 1 Wma. Saund. 216 a, n. (1) ; 2 Wms. Ex. 5th ed. 1557. (b) Ib. (c) 1 Wms. Saund. 291 m; 2 Wms. Ex. 5th ed. 1750; Ryalls v. Bramall, (d) See ante, p. 86; Hunting v. |