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his so dying, if the lands were sown before the marriage, the wife shall have the profits, and not the executors of the husband for the corn committed to the ground belongs to the freehold, and is not transferred to the husband; and, therefore, as it was undisposed of in his lifetime, it devolves to the wife. (i) So, if A. seised in fee sow copyhold lands and surrender them to the use of his wife, and die before severance, it seems that the wife shall have the corn, and not [219] the executors of the husband; for this is a disposition of the corn as appurtenant to the land, and since the husband disposed of it during his life, it cannot belong to his executors. (k) But, if the husband and wife be joint-tenants, and the husband sow the land, and die, it seems the corn shall go to the executor of the husband, for the land is not cultivated by a joint stock, the corn is altogether the property of the husband, and it shall not be lost by being committed to their joint possession, any more than if it had been sown in the land of the wife only. (7)

SECT. II.

Of the chattels personal which go to the widow: and herein, of such personal chattels of the wife as go to the surviving

husband.

CHATTELS personal, or choses in action, as debts on bond, simple contracts, and the like, do not vest in the husband, until he receives, or recovers them at law. When he has thus reduced them into possession, they become absolutely his own, and at his death shall go to his representatives,

(i) Gilb. L. of Ev. 246. Harg. Co. Litt. 55 b. note 5. Roll. Abr. 727.

(k) Roll. Abr. 727.

(7) Gilb. L. of Ev. 245. Roll.

Abr. 727. Sed vide Harg. Co.
Litt. 55 b. et not. 7. Vin. Abr.
tit. Emblements. pl. 16. Com. Dig.
Biens. G. 2. L. of Test. 380.

[220] or as he shall appoint by his will, and shall not revest in his wife. (a)

In respect to such choses in action as vested in the wife before her marriage, the husband must sue jointly with her to recover them. (b) As to such of the wife's choses in action, as accrued subsequent to the coverture, he may sue either in their joint names, or alone, at his pleasure. (c)

If he join her in action and recover judgment, and die, the judgment will survive to her on the principle, that although his bringing the action in his own name alone be a disagreement to the wife's interest, and indicate his intention that it shall not survive to her: yet if he bring an action in the joint names of himself and his wife, the judgment is, that they both shall recover, and therefore such action does not alter the property, nor imply an intention on his part to do so, and, consequently, the surviving wife, and not the representative of the husband, is entitled to a scire facias on the judgment. (d)

Indeed it has been asserted by a great authority, that, even in the case of the husband's suing alone for the wife's [221] debt and his dying before execution, his wife, and not his executors, shall be thus entitled. (e)

Such chattels shall, à fortiori, survive to her, if the husband die before he has proceeded to reduce them into possession. (f) Hence a portion due to an orphan in the hands of the chamberlain of London, unless it be recovered, or received by the husband, shall, on his death, go to his wife, and not to his executor, for it is clearly a chose in action. (g) So before the stat. 5 Geo. 2, c. 30, s. 25, where the debtor

(a) 2 Bl. Com. 434. Harg. Co. Litt. 351.

(b) Com. Dig. Baron and Feme, V. 1 Roll. Abr. 347. Ow. 82. Woodward v. Parry, Cro. Eliz. 537. Garforth v. Bradley, 2 Ves. 676. 1 Sid. 25.

(c) Blackborn v. Greaves, 2 Lev. 107. Howell v. Maine, 3 Lev. 403. Al. 36. Cappin v.

2

P. Wms. 497. Vile Mitchinson v.
Hewson, 7 Term Rep. 349.

(d) Com. Dig. Baron and Feme,
V. Harg. Co. Litt. 351, note 1.
(e) Bond v. Simmons, 3 Atk. 21.
(f) 2 Bl. Com. 434. Harg. Co.
Litt. 351.

(g) Com. Dig. Baron and Feme, E. 3. Pheasant v. Pheasant, 2 Ventr. 341. S. C. Ca. Ch. 182.

to the wife became bankrupt and the husband claimed the debt, and paid the contribution-money, and died before any dividend, his wife, and not his executor, was held entitled to the debt, for by such payment the property was not altered. (h) So if an estray come into the wife's franchise, in case the husband die without seising it, his wife, and not his executors, are entitled to the seisure. In all these cases the husband's right is determined with the coverture. (i)

But, if the husband grant a letter of attorney to A. to receive a debt or legacy due to the wife, and A. receive it, but before he pays it over the husband die, it shall be considered [222] as having vested in his possession, and shall go to his executors. (k) Such are the principles of law on this subject; but in equity it is held, that a settlement before marriage, if made in consideration of the wife's fortune, entitles the representative of the husband dying in her lifetime to her choses in action. But it has been asserted, that if it be not made in consideration of her fortune, the surviving wife will be entitled to the things in action, the property of which has not been reduced by the husband. So, if it be in consideration of part of her fortune, such things in action as are not comprised in that part, it is said, survive to the wife. And in a case where a settlement was made to provide for the wife, without mentioning her personal estate, the Lord Keeper decreed, that such estate should belong to the representatives of the husband, and held, that in all cases where there is a settlement equivalent to the wife's portion, it shall be intended that the husband shall have the portion, although there be no agreement for that purpose. (1) But the presumption of an agreement from the mere fact of a settlement being made by the husband, is peculiar to the case last cited,

(h) Com. Dig. Baron and Feme, E. 3. Anon. 2 Vern. 707.

(i) 2 Bl. Com. 434. Harg. Co. Litt. 351 b.

(k) Roll. Abr. 342. Huntley v. Griffiths, Moore, 452.

(1) Harg. Co. Litt. 351, note 1.

3 P. Wms. 200, note D. Prec. Chan, Cleland v. Cleland, 63. Packer v. Wyndham, 412. Blois v. Countess of Hereford, 2 Vern. 502. Adams v. Cole, Ca. temp. Talb. 168.

and has been disavowed by the court in several other cases. (m)

Equity also considers money due on mortgage as a chose in action; and it seems to have been formerly understood, that since the husband could not dispose of lands mortgaged to the wife in fee without her, and the estate remained in her, she or her representatives were entitled to the money, as incident to it; but that in regard to a mortgage debt, secured by a [223] term of years, as the husband had an absolute power over the term, there was no obstacle to the debt's vesting in his representatives; but this distinction is exploded, and it is now held, that although in case of a mortgage in fee, the legal fee of the lands in mortgage continue in the wife, she is but a trustee, and the trust of the mortgage follows the property of the debt. (n)

If the husband and wife have a decree in equity, in right of the wife, and the husband die, the benefit of the decree belongs to the wife, and not to the executor of the husband. (0)

And where a woman had a vested interest in possession in a legacy, and her husband became a bankrupt, and his assignees filed a bill against the testator's executors, to compel payment of the legacy, and soon afterwards the husband died, it was held that the widow and not the assignees, was entitled to the legacy. (p)

But if the wife's fortune be in the Court of Chancery, on the husband's death his representatives shall be entitled to it, subject to the same equity as before, in favour of the wife. In case of her death it shall become the absolute property of the husband; and it has been held, even where the

(m) Lister v. Lister, 2 Vern. 68. Cleland v. Cleland, Prec. Chan. 63. See also Salwey v. Salwey, Amb. 692, and Druce v. Denison, 6 Ves. jun. 385.

(n) Harg. Co. Litt. 351, note 1. Bosvil v. Brander, 1 P. Wms. 458. Bates v. Dandy, 2 Atk. 207.

(0) Harg. Co. Litt. 351, note 1. Nanney v. Martin, 1 Chan. Ca. 27. Carr v. Taylor, 10 Ves. jun. 579, 580. Adams v. Lavender, 1 M'Clel. & You. 41.

(p) Pierce v. Thornely, 2 Sim. 167.

court detained the fund, in order to enforce a provision for the wife, and made a decree for that purpose, and she survived her husband, yet, that on her death, his representatives were entitled to it, inasmuch as it had absolutely vested in him by law. In these cases it seems to make no [224] difference whether there be any issue of the marriage or not. (p)

But where there was a fund in court standing to the separate account of a married woman whose husband survived her and died before administering to the estate, the fund was ordered to be paid to the wife's legal personal representative, although he had not obtained administration to the husband's estate, the court not looking beyond the legal personal representative. (q)

In case the husband survive the wife, her chattels real, as we have seen, shall become his absolute property. (r) But her choses in action shall go to her representatives, excepting the arrears of rent due to her, which, as I have before stated, on her death are, by stat. 32 Hen. 8, c. 37, given to the husband. The ground of the distinction is this: The husband is in absolute possession of the chattel real during coverture, by a kind of joint-tenancy with his wife, and therefore the law will not wrest it from him, though if he had died first it would have survived to the wife, unless he had altered the possession in his lifetime: but a chose in action was never in his possession: He could acquire it only by suing in his wife's right, and 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, in the capacity of her administrator, he may recover such things in action as became due to her before or during the coverture. (s)

In chattels personal, or choses in possession of the wife in

(p) 1 Fonbl. 8, 89. Packer v. Wyndham, Prec. Chan. 418. Perkins v. Thornton, Ambl. 503.

(q) Gutteridge v. Stilwell, 1

Myl. & Keen, 486.

(r) Supra, 216.
(s) 2 Bl. Com. 435.

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