application to personal chattels not in possession, but lying in action and being mere choses in action. It is to this latter subject alone, and to the rules which govern the interests of husband and wife in this subject, that the attention should be carefully confined.

[66] The nature and extent of the husband's interest in and power over the wife's choses in action is of a peculiar nature, but is defined in the clearest manner. Marriage, the law says, is only a qualified gift to the husband of the wife's choses in action, viz. upon condition that he reduce them into possession during its continuance. If he happen to die before his wife, without having reduced such property into possession, she, and not his personal representatives, will be entitled to it. The wife's right is not divested by the marriage. The chose in action continues to belong to her, unless the husband can and does reduce it into possession, and thereby makes it cease to be a chose in action. The husband has not, on the marriage, any immediate property in the chose in action; he has only the right to reduce it into possession, if it be in a state capable of being so reduced. Reduction into possession is a necessary and indispensable preliminary to the husband's having any right of property in himself, or to his being able to convey any right of property to another. If he dies without having been able or willing to perform this condition, the right of the wife continues unaltered, exactly as if she had never married. Her title is the same after her husband's death, as it was before her marriage. The husband had a power, but he had never exercised it; or the chose in action was so circumstanced, that he could not exercise it so as to fulfil the condition upon which his title depended. These are principles not contested: let us apply them to the present case, and see whether any doubt can be entertained.

Here the wife was entitled to a chose in action, which, in the events that took place, it was not possible for the husband during his life to reduce into possession. He died, not only before the wife had acquired [67] any right to the possession, but before she had even any present right of action. On the death of Isabella Purdew in 1822, three years after the decease of Bolton, and not sooner, the fund became divisible into seven parts, of which one part belonged to the surviving wife. How is it possible, that in such a case the husband could either acquire or transfer to another an immediate right of possession? As to the husband himself and his executors, it is not pretended that any claim could have been set up on his or their part; he died, before he did or could perform the condition on which he was to acquire by the marriage any property in this chose in action; he left it a chose in action at his death, in the possession of another, who was the rightful owner during Isabella Purdew's life; he did not live long enough to have acquired any right to reduce it into possession. If the husband himself could not perform the condition on which his property in this personal chattel was to depend, how could any act of his alter the nature of the thing? How could his assignment have any such effect? The nature and operation of such an instrument is, to pass to another the right which the assignor has. The assignee may in some cases have a better and more extended right than the assignor had: but could the thing assigned be totally changed in its nature? Could he confer an absolute right to the property wholly freed from the wife's contingent right? Could the assignment of a future right of action give a present right of action? Could it give a present right of possession? Could it authorise the assignee to reduce immediately into possession what did not become due till ten years afterwards? By changing hands, could that, which was a contingent and future right of action, become an absolute and immediate right of possession? How could the assignee take the property or any part of it from Isabella Purdew during her life? In other words, how could he accelerate the [68] possession any more than the husband himself could have done? How could he prevent its continuing to be a mere chose in action, which was to be reduced into possession at a future period?

The argument that an assignment, though it may give a better interest than the assignor had, cannot pass a different right from that which was in him, or change the nature of the thing assigned, has had great weight with various Judges. The decision of the Lord Keeper in Burnett v. Kynaston (11) shews, what were the notions entertained on that subject so early as the year 1700. There the husband had assigned a debt due to the wife on a mortgage in fee; and a suit having been instituted by his executors against her administrator, the Court dismissed the bill, "because

the husband had not an absolute power over the mortgage; but, being in the nature of a chose in action, he had only a right to reduce it into possession, and not having so done in his lifetime, his assignee stood but in the place of the husband, and could have no greater right or power than the husband himself had, which was only to reduce into possession in his lifetime, and not having so done, it survived to the wife." A similar view of this point is strongly put by the late Master of the Rolls in Morley v. Wright. After mentioning that Lord Alvanley had uniformly main-[69]-tained, that, with respect to the equity of the wife, there was no difference between an assignment for valuable consideration and an assignment by operation of law, he says (11 Ves. 17), "Upon principle, there is great weight in that proposition of Lord Alvanley; for, if the husband has but the right of reducing the wife's interest into possession, how can he for valuable consideration or otherwise convey more than he has ? If he does not reduce it into possession, it clearly survives. If, then, he parts with it for valuable consideration, and the assignee acquires a right different from that which the husband had, he parts with something different from what he has."

To call this assignment a constructive reduction into possession-a possession in some sense-tantamount to possession, &c., is to suppose two things to be the same, which are directly opposite to each other: it is to suppose a chose in action to be a thing constructively reduced into possession: it cannot be both: no construction can make things opposite in their nature to be the same. The phrases, which are employed to gloss over this contradiction, are all equally inapplicable to the subject, being borrowed from cases where there is an immediate right of possession, and where (as after a judgment, but before execution), the property may be considered changed, and the condition substantially fulfilled. Here the facts negative any such construction. Rose applied in 1812 for a restraining order to prevent possession being given to others; and he now applies for the aid of equity to give him possession. It is said that the husband substantially possessed the fund by receiving the consideration money for the assignment. But for what was that consideration paid? Certainly, [70] as between Bolton and Rose, the former did part with all his right; but that right was merely a contingent right to reduce the thing into possession, when Isabella Purdew died, if the husband were then alive. For this the consideration was paid and received. The deed itself shews by express recital the nature of Bolton's right and interest in it he says in effect to Rose, "I have this as the husband of Margaret; I have no present right, no certainty of any future right; but if you choose to stand in my stead, and to purchase such right as I have, I can transfer to you a contingent right depending on the event of my surviving Isabella Purdew.” The stipulation respecting the insurance of Bolton's life is decisive to shew that Bolton was a purchaser with full notice, and that he bought only a chance. The price paid was regulated accordingly, and he looked to the insurance for indemnity. If the wife's right were only equitable, Rose, being a purchaser with notice, would be bound by it. But it is not with a mere equity that he has to contend. He bought subject to the legal right of the wife, who, not being bound by the deed of assignment, would be at liberty, if the money remained a chose in action at the time of her husband's death, to assert her title to have it paid to her as her own.

After this repeated consideration of the subject, I still continue of opinion, that all assignments made by the husband of the wife's outstanding personal chattel, which is not or cannot be then reduced into possession, whether the assignment be in bankruptcy, or under the insolvent acts. or to trustees for the payment of debts, or to a purchaser for valuable consideration, pass only the interest which the husband has, subject to the wife's legal right by survivorship.

[71] Rose's petition was dismissed; and an order was made on the petition of Mr. and Mrs. Lenthall for payment of the fund according to their prayer.(12)

(1) At the time of the execution of this deed, Bolton was a prisoner for debt. That circumstance was not stated in the petitions; neither did they make any mention of or allusion to the covenant concerning the insurance of Bolton's life.

(2) 2 P. Wms. 608. In Theobald v. Duffoy, 9 Mod. 102, a term for 500 years was devised to A. for life, remainder to a feme sole; afterwards she married an alien, and her husband and she, for valuable consideration, assigned her remainder to J. S.; then A. died, after which she and her husband sold the term to J. N. for £30, a sum which is stated in the report not to have been a sufficient equitable considera

tion. J. N. having recovered the term at law, J. S. filed his bill for an injunction, and the decree was, that there should be a perpetual injunction against the second vendee, and that the first vendee should have the term. That case, therefore, in no degree makes out the position, in support of which it is cited. For, first, the husband survived A., so that, during the coverture, the wife's interest came into possession. Secondly, the contest was, not between the husband's assignee and a surviving wife, but between two assignees, each of whom claimed under an assignment executed by the husband and the wife. The circumstances, too, that the husband was an alien, and that the consideration paid by the second vendee seems to have been regarded as inadequate, are not unimportant. Upon the whole, it is impossible to infer from that decision, that the husband's assignment for valuable consideration of the wife's possibility in a term, will bar any right of survivorship which she may have, in the event of her husband dying before the possibility becomes an interest in possession.

Unquestionably, however, the doctrine is so laid down, by the most respectable text writers. Mr. Butler (Coke Litt. 351 a, note 304) says, "If a person marries a woman entitled to a possible or contingent interest in a term of years, if it is a legal interest, that is, such an interest as, upon the determination of the previous estate, or the happening of the contingency, will immediately vest in possession in the wife, there the husband may assign it, unless perhaps in those cases where the possibility or contingency is of such a nature that it cannot happen during the husband's lifetime. So Mr. Roper (Roper's Law of Husband and Wife, p. 237. See p. 169, &c.) mentions, "the husband's power to assign at law his wife's terms for years, whether in possession or in remainder, and his power to do the same by contract in equity in analogy to his legal right," as subject to no exception, save where the wife's interest is of such a nature that it cannot possibly fall into possession during the coverture. But the doctrine thus laid down by the text writers seems not to be warranted by any express authorities.

In Lampet's case (10 Coke, 47 b), a testator, having a term of 500 years in certain lands, devised them to A. for life, and after his decease, to B., who was a feme sole, and the heirs of her body, and appointed A. his executor. Subsequently, B. having married, she and her husband granted, released, surrendered, and assigned the premises to A. for all their estate and interest therein. The husband died; A. died; and it was held, that, after A.'s death, a person claiming as lessee under him was entitled against the surviving wife. But that decision proceeded expressly upon the ground" that such possibility of the wife might be extinguished by grant or release to him in possession"; and it was at the same time adjudged, "that such future or executory interest could not be granted to a stranger during the life of the first devisee.' (See also 4 Coke, 66 b.) Lampet's case, therefore, lends no support to the position above mentioned: on the contrary, it marks strongly the distinction between the operation of a release which extinguishes a right, and that of an assignment which preserves the right and transfers it to another person. This distinction is uniformly acknowledged by the text writers of the greatest authority. "Also, possibilities of land," says Shepherd in his Touchstone (page 322), " if they be near. and common possibilities, albeit they be not grantable over to another person, yet may they be released to him that hath the present estate of the land. And, therefore, if a man, possessed of a term, devise it to A. for life, remainder to B. and his heirs male during the term; in this case, albeit B. may not grant his interest over, yet he may release it to A." In another passage, after putting a similar case, he adds (page 239), So, if a lease be made to me and my wife for life, the remainder to the survivor of us, I may not grant this remainder over to another man.'

แ

The husband being thus unable at law to aliene or grant his wife's interest in a term, while it continues expectant on the determination of a prior life estate, it is clear, that, if he dies before the tenant for life, the legal right must survive to her. Then, what equity is there to convert her into a trustee for a person in whose favour her husband shall have executed, for valuable consideration, an assignment of her possibility? The assignment is undoubtedly good in equity; that is to say, though it passes no legal interest, it is good as the contract of the husband with respect to a specific subject, raising a trust against him and all who claim through him. But the wife's right is not derived through him, and cannot be affected by his contract ; still less can it be so bound in favour of one who purchases with full notice of her right.

There is another circumstance which marks strongly the difference, with respect to the marital right, between the wife's immediate terms for years, and her future interests in terms of the nature above mentioned. The husband surviving the wife is entitled to the former in his own right, and without taking out administration to her; Pale v. Michell (2 Eq. Cas. Ab. 138, pl. 4. See also 1 Roll. Ab. 345, pl. 9, and 10); but he does not take her possibilities, except as administrator to her. "If a feme sole," says Lord Coke (Co. Litt. 351 a), "be possessed of a chattel real, and be thereof dispossessed, and then taketh husband, and the wife dieth, and the husband surviveth, this right is not given to the husband by the intermarriage, but the executors or administrators of the wife shall have it; so it is, if the wife hath but a possibility."

The analogy, which subsists, in many respects, between chattels real lying in action and possibilities, renders the following passage worthy of attention in reference to the power of the husband over his wife's expectant interests in terms of years: "Chattels real, consisting merely in action, the husband shall not have by the intermarriage, unless he recovereth them in the life of the wife, albeit he survive the wife; as a writ of right of ward, a valore maritagii, a forfeiture of marriage, and the like, whereunto the wife was entitled before her marriage." (Co. Litt. 351 a.)

Again, Lord Coke says, “if a lease be made to a baron and feme for term of their lives, the remainder to the executors of the survivor of them, the husband grant away this term and dieth, this shall not bar the wife, for that the wife had but a possibility, and no interest." (Co. Litt. 46 b.) It will be said that there the possibility was of such a nature, that it could not have fallen into possession during the coverture. Lord Coke, however, does not consider the doctrine as depending in any degree on that circumstance; the reason which he assigns, is a general one applying to all possibilities. The wife, he says, is not barred, because she had but a possibility.

The question will assume a quite different aspect, if the gift of the residue of a term to a woman be expectant, not upon a previous estate for life, but on a previous limitation for years; for, as was held in Sheriff v. Wrotham (1 Cro. Jac. 509),—— where a lease for twenty-one years was devised to A. for six years, and after the six years ended, then, if a given event happened, to C.,-what is so devised to 'C. " is not a possibility, but the interest of the term after six years expired." See also Kimpland v. Courtney (Freeman, 250. Fearne on Conting. Rem. and Exec. Dev. 549.)

(3) 2 Roll. Rep. 134. This case came before the King's Bench in Michaelmas term in the 17th year of James I. The report of it is as follows:

A legacy of £10 was bequeathed to a married woman, to be paid eighteen months after the death of the devisor; he died, and afterwards the woman died within the eighteen months; and her daughter took out administration to her. Montague: The legacy of £10 belongs not to the daughter, but to the husband of the wife; for the husband had an interest in it before the term of payment accrued, which interest it is clear that he might have released before the time of payment accrued."

It does not appear in what form of action the question arose; but, the legacy being a chose in action, the legal right was in the person who took out administration to the wife, and it was only by means of his right to take out such administration, that the husband could have enforced payment of the money. Co. Litt. 120. 1 Roll. Ab. 345, pl. 7. Cowley v. Locton, Sty. 205. Obrian v. Ram, 3 Mod. 186. Viner's Ab. Baron and Feme, H, pl. 24, 25, 26. Elliot v. Collier, 1 Wilson, 168; 3 Atk. 526. Philliskirk v. Pluckwell, 2 Maule & Selw. 395, 397. Nash v. Nash, 2 Madd. 138. It is not easy to conjecture on what principle the Court of King's Bench, in the case in Rolle, could set up any title against the legal title of the administratrix.

However that may have been, it is at least clear, that there the husband survived the wife, and the case, therefore, cannot have any direct application to the question concerning the effect of the husband's acts in barring the right of the surviving wife. See also Brotherow v. Hood, 2 Com. Rep. 725.

(4) The husband did not die before the wife attained twenty-five; so that there could not arise any question with respect to her right of survivorship, in case he had assigned the legacy, and died before it became payable.

(5) 11 Ves. 20. Lord Alvanley had long before referred to a case of the Earl of Salisbury v. Newton (4 Ves. 529), in which the point appeared to have been determined in favour of the wife. The report of that case, since published by Mr. Eden from Lord Northington's MSS. (1 Eden, 370), shews that the Lord Keeper decided expressly,

that the wife was entitled to a provision out of her fund against the particular assignee of her husband for valuable consideration.

(6) If it was meant to include in this question the wife's choses in action of an equitable nature, the Earl of Salisbury v. Newton (1 Eden, 370; 4 Ves. 529), seems to be nearly, if not precisely, such a case as the Master of the Rolls here alludes to. A sum of money being due to the wife, either by way of portion under her father's marriage settlement, or as a legacy under his will, the husband assigned all that he was entitled to in her right to Lord Salisbury in discharge of a bond debt, and died without making any provision for her or her children. Lord Salisbury, on a bill filed by him against the trustee of the fund for an assignment, was held to be entitled to the money, subject to the wife's equity to have a settlement made on herself and her children. It would seem that there could not have been anything amounting to a reduction of the fund into possession on the part of the husband and wife; for, by the decree, she was to make her election, whether to take under the will of her father or under his marriage settlement.

In Bates v. Dandy, as reported in 2 Atkyns, 207, the husband's agreement to assign, as a security for the repayment of a sum of money, a mortgage in fee and a mortgage for a term of years, belonging to the wife, as one of several residuary legatees of a testator, accompanied by a deposit of the mortgage deeds, was held to bind the surviving wife; but if any surplus remained after satisfying the claim of the equitable assignee, she was declared to be entitled to that surplus as her chose in action. At first sight, this appears to be a decision that the husband's equitable assignment of an equitable chose in action belonging to the wife, not accompanied by an actual reduction into possession during the coverture, will bar the wife's right by survivorship. The case, however, had some very peculiar circumstances, and the facts of it are not accurately set forth by Atkyns. A statement of it from the Register's Book will be found in a subsequent note.

(7) 3 P. Wms. 197. The judgment in this case appears to have proceeded on the ground, that the possession of certain premises by the husband and wife was a reduction into possession of that which was the subject of assignment; and accordingly the husband's voluntary assignment, as well as his assignment for valuable consideration, prevailed against the representative of the surviving wife.

(8) The following statement of the case of Bates v. Dandy is taken from the Register's book.

The bill was filed by Edward Bates and John Bates, executors of Edward Bates, against Sarah Dandy, widow of William Dandy, and surviving administratrix, with the will annexed, as also one of the residuary legatees of John Dyer; Anne Dyer, surviving executrix of Lawrence Dyer, and also one other of the residuary legatees of John Dyer; William Dyer, heir at law and surviving executor of Alexander Dyer. who was heir at law to John Dyer; and Thomas Elton and John Snee, administrators of William Dandy. It stated that one Parker had mortgaged certain premises in fee to John Dyer to secure a sum of £150; that one Frew had mortgaged certain other premises to the same Dyer for a term of 1000 years to secure a like sum; that John Dyer made his will, whereby he appointed his two brothers, Alexander and Lawrence, and his sister Sarah Dandy, his residuary legatees; that he died, leaving the three residuary legatees surviving, of whom Alexander and Sarah took out administration to him with the will annexed; that the residuary legatees" agreed upon a division of the residuum, and the aforesaid mortgages were allotted to the said William and Sarah Dandy, as their share thereof; that, in pursuance of such division, the said residuary legatees did execute and sign a certain instrument or writing, whereby the respective shares were transferred to them respectively, and thereupon the said Alexander Dyer, in whom the legal estate of the premises mortgaged by the said Parker was vested, as heir at law to John Dyer, and in whom also the aforesaid term of 1000 years in Frew's mortgage was vested, as one of the administrators of John Dyer, by a certain writing, dated the 31st of January 1737, did promise, upon the request of his brother, William Dandy, to execute, or to join in the execution of any assignment or conveyance of the two mortgages belonging to his late brother John Dyer's estate, &c., and all his interest therein to his brother, William Dandy, or to such person or persons as he should appoint, in such manner as should be thought reasonable"; that William Dandy afterwards borrowed £200 from Edward Bates, the father and testator of the Plaintiffs, in order to secure the repayment of which