by deed duly executed, assign to a purchaser for valuable consideration a moiety of a share of an ascertained fund, in which the wife has a vested reversionary interest expectant on the death of a tenant for life of that fund, and both the wife and the tenant for life outlive the husband, the wife is entitled by right of survivorship to claim the whole of her share of the fund against such particular assignee for valuable consideration.

Mr. Sugden and Mr. Girdlestone jun. for Rose. We contend, that, by the deed of the 10th of October 1812, the vested reversionary interest of Mrs. Bolton in the moiety of her share of the fund in Court, expectant on the death of Isabella Purdew, was so assigned to Rose, the purchaser for valuable consideration, that his right will prevail over any claim which she may set up, founded on the circumstance of her having survived her husband. The other side will probably rely on Hornsby v. Lee (2 Mad. 16). There the assignment was merely as a collateral security for the due payment of an annuity of £30 granted by the husband: here the assignment is absolute. In that case the wife's reversionary interest was contingent; if she had died in the lifetime of her mother, neither she, nor any person claiming through her, would have been entitled to any portion of the property which was assigned here Mrs. Bolton's interest was, in October 1812, vested and indefeasible. The judgment, therefore, in Hornsby v. Lee, does not determine the question now before the Court. At the same time, we do not admit that case to be an authority. It was decided without much argument or much con-[9]-sideration, and has never been acquiesced in by the profession. The general opinion has always been, that the decision ought to have been different, and that, if the same point were again brought into discussion, the result would not be the same. That judgment cannot be sustained without subverting many titles to personal property of great value, bought long before any person could have had reason to suppose that the law of the land was as it is there laid down.

The Master of the Rolls (Sir Thomas Plumer). I am most anxious that the decision in Hornsby v. Lee, and the principles of it, should be thoroughly canvassed. For the purpose of determining the question between the parties now before me, I shall consider the subject precisely as if that case did not exist.

Mr. Sugden and Mr. Girdlestone. Assignments of such reversionary interests of married women as that which has been purchased by Rose, have always been very common and there is no case in which they have been held not to be valid as against the wife surviving. The absence of any decision impeaching such an assignment, in circumstances which must have been of frequent occurrence, shews strongly what the law on the subject has always been understood to be; and the same view of the law is supported directly by express decisions on analogous points, and by numerous dicta, which, though frequently commented upon, have never been questioned or denied. In Theobalds v. Duffoy, cited with approbation in the Duke of Chandos v. Talbot, (2) where a [10] term was devised to A. for life, remainder to a woman [11] for the residue thereof, it was held that such possibility [12] might be assigned by her husband alone. In Gage or [13] Gray v. Acton (1 Salk. 326), the rule was laid down by Lord Holt in the most unequivocal terms: Where the wife hath any right or duty, which by possibility may happen to accrue during the coverture, the husband may by release discharge it but where the wife hath a right or duty, which by no possibility can accrue to her during coverture, the husband cannot release it." Here, Isabella Purdew might have died in Bolton's life-time; he, therefore, could have released his wife's right and interest in this fund, so as to have prevented her, if she survived him, from taking any part of it; and if his release could have so barred her rights, his assignment for valuable consideration must have at least equal effect. In an anonymous case in Rolle, (3) it was held, that the [14] husband might release the wife's legacy before the time when it became payable, that is, while her interest in it with respect to possession and enjoyment was merely reversionary. In the Duke of Chandos v. Talbot (2 P. Wms. 602, 607, 609), a legacy of £1000 was bequeathed to a woman, payable at her age of twenty-five years; it was assigned by her husband and her, before she came of age; (4) and Lord Chancellor King was of opinion, that the assignment was good. In Atkins v. Dawbury (Gilb. Eq. Rep. 88), a legacy of £300, payable out of a reversion expectant on an estate for life, was given to a married woman; her husband assigned it to trustees for the benefit of his children; and, he having died, it was held that this assignment bound

the surviving wife. These are direct authorities in favour of the position for which we contend. So in Howard v. Damiani (2 Jac. & Walk. 458), where the husband and wife assigned her reversionary interest in a fund in Court to the person who was the tenant for life, Sir William Grant took the wife's consent to the immediate payment of the money to the purchaser. The acceptance of that consent assumes the validity of the assignment; and if the consent itself is of any avail, we have it here, in substance at least, if not in form; for, Mrs. Bolton, though she had full knowledge of the petition presented in 1812, allowed the restraining order to be made without opposition.

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In Grey v. Kentish (1 Atk. 280, corrected in 1 Cox's P. Wms. 459) it did not become necessary to [15] decide the point, because the particular assignee of the bankrupt husband waived his assignment, and came in as a general creditor in the bankruptcy; but the language of Lord Hardwicke is decisive. A husband," he says, "cannot assign in law a possibility of his wife, nor a possibility of his own; but this Court will, notwithstanding, support such an assignment for a valuable consideration." The position is general, and contains no mention of any qualification of the husband's power to assign, for valuable consideration, the wife's possibility. Lord Hardwicke says, not that the Court will support such an assignment only in certain events, but generally and universally that the Court will support it. Equally unqualified is his language in Bates v. Dandy (2 Atk. 208), " The husband may assign the wife's chose in action, or a possibility that the wife is entitled to, as well as her term, so that it be not voluntary, but for a valuable consideration"; and yet there Lord Hardwicke must, from the facts of the case, have had the contingency of the husband dying in the life-time of the wife directly before his mind. So in Hawkyns v. Obin (2 Atk. 549), where a sum of £2000 was bequeathed to a married woman and her husband, " to be enjoyed by them and the survivor of them," and the husband died before the wife, Lord Hardwicke says: It has been insisted, too, that the husband's disposition in his life-time would have bound the wife, notwithstanding she had survived him; and if not good in law, yet it would have been good in equity. I will not say but the husband might have disposed of this possibility in equity, if assigned for a valuable consideration; but then that must have been upon an actual assignment of this particular thing." The doctrine thus explicitly laid down was never called in question, till the decision in Hornsby v. Lee: in Mitford v. Mitford (9 Ves. 87), and in Wright v. Morley (11 Ves. 12), Sir William Grant has re-[16]-ferred to it without disapprobation; and it has even been assented to, since the time of Hornsby v. Lee, by the very Judge who determined that case. In Johnson v. Johnson the decree turned ultimately upon the construction of a previous order of the Court, and upon the extent of the wife's consent; but speaking of the effect of the husband's assignment upon a fund in court belonging to a married woman who survived her husband, he says (1 Jac. & Walk. 476): "If it were now a new point, it would be difficult to understand how the assignee could be in a better situation than the husband himself; for the assignment does not reduce it (the fund) into possession, it still remains a chose in action; and its being a chose in action gives the wife a right by survivorship. But it is too late to consider this; for it is decided that an assignment for valuable consideration, being a disposition of the property, is sufficient to bar the right of the wife surviving." Rose's claim comes within that principle: he has an assignment for valuable consideration; and that assignment, he says, is a disposition of the property, and is sufficient to bar the right of Mrs. Bolton, now Mrs. Lenthall. The reversionary nature of the wife's interest can make no difference; for the authorities already cited prove, that the husband's power over the wife's choses in action does not depend on her having a right to immediate possession. Where her property is such as to be capable of assignment at law, her assignment passes her future as well as her present interests. With respect, again, to those things which come under the description of choses in action, they, though not assignable at law, are assignable in equity; and the circumstance that her interest is such as to give her only a right of future possession or enjoyment, can have no more weight in restraining or impairing the efficacy of his equitable assignments of the latter species [17] of property, than it has on his legal assignments of property of the former description.

In all the cases where the right of the surviving wife has prevailed, except in Hornsby v. Lee, the contest has been either between her and persons claiming as

volunteers under the husband, or between her and the general assignees of her husband's estate under a commission of bankrupt issued against him. The first class of cases have no bearing on the present question; for the rights of a purchaser for valuable consideration are very different from those of a mere voluntary assignee, who cannot be in a better situation than his assignor. The second class of cases (of which Mitford v. Mitford (9 Ves. 87; 1 Coxe's P. Wms. 459) is the principal), are equally inapplicable; for it has always been held that a particular assignee for valuable consideration has much higher rights in a court of equity, than the general assignee by operation of law. Worrall v. Marlar (1 Coxe's P. Wms. 153, notes), Wright v. Morley (11 Ves. 17). So great is the difference between those two characters in the estimation of this Court, that, though the equity of the wife to have a settlement out of her property has long been established as against the assignee in bankruptcy, yet even so late as the case of Wright v. Morley, Sir William Grant seems to regard it as doubtful, (5) whether she has any similar equity against a particular assignee for valuable consideration. Here, however, there can be no difficulty on that [18] point. Rose has no wish to resist her equity to a settlement; all that he asks is the moiety of the fund; the remaining moiety is sufficient to answer any equity which she may choose to claim.

Mr. Shadwell and Mr. Sidebottom, for Mr. and Mrs. Lenthall. Though the precise question to be determined here has not hitherto been before the court; there are undoubted principles and analogous authorities, which establish the right of the wife to the possession of this fund. The only distinction between this case and Hornsby v. Lee is, that there the interest of the wife was contingent, and that here it is vested; but there is no conceivable mode of reasoning, by which that circumstance can make any difference in the rights which the wife may have by survivorship. The grounds of the judgment in Hornsby v. Lee turned in no respect on the contingent nature of the interest. That decision was acquiesced in ; and its authority has never since been questioned from the bench.

of

The subject claimed here is an equitable chose in action; and it has never been denied, that the husband is entitled only to such choses in action of the wife, as he reduces into possession during the coverture. Now, Bolton never did reduce this chose in action into possession nay, it was not possible for him to do so; for up to the time of the death of Isabella Purdew, neither he nor his wife had any right present possession, nor even of present action: all that was in her and in him as her husband, was merely a right to have the possession of this chattel at the death of the tenant for life. If he was then alive, and if he or his assignee reduced it into possession, the right of the wife was gone; if, [19] on the other hand, she and the tenant for life survived him, her title by survivorship would necessarily take effect. The latter is the event which has happened, and the assignee of the husband must give way to her.

It is said, that the assignment by the husband and his receipt of the purchasemoney is equivalent to a reduction into possession. Where is the authority, where is the dictum for such a position? Reduction into possession is a plain unambiguous phrase, denoting a specific act, which is attended with certain legal consequences: where is it laid down, that certain other acts of a totally different kind shall be equivalent to it, and shall, at law, produce the same effect? It was impossible for the husband to have obtained possession of this fund in 1812: is it not absurd, then, to suppose, that, by parting with whatever right he might have in it, and by the receipt of a sum of money from Rose, he obtained possession constructively of a thing to the possession of which he had no title at the time, and which was in fact possessed by Isabella Purdew? Still more absurd would it be to suppose, that Rose, who now calls on the Court to give him possession, had reduced the thing into possession twelve years ago. The assignment, with the payment of the consideration money on the one hand, and the receiving of it on the other, can in no way be allowed to be a reduction into possession either by the assignor or by the assignee.

The Master of the Rolls [Lord Gifford]. Is there any case, in which, the husband having assigned the wife's present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife? Suppose, that in such a case the assignee were to claim the chose [20] in action; in whose name would he make the claim? and in what form would he bring the action?

Mr. Shadwell and Mr. Sugden. We believe that such a case has not occurred. (6)

The counsel for Mr. and Mrs. Lenthall continued. It is admitted, that, if Bolton had not assigned, the wife, in the event which has occurred, would have taken this money. Now what effect can an assignment have, ex-[21]-cept to give the assignee the same right which his assignor had? How can any man convey to another a better right than that which was in him? Mitford v. Mitford (9 Ves. 87) has established the principle on which Lord Bathurst acted in Gayer v. Wilkinson (1 Bro. Cha. Ca. 50, in a note), and to which Lord Thurlow inclined in Kinsman v. Saddington (1 Bro. Cha. Ca. 44),-that the wife's reversionary interest in a personal chattel not reduced into possession during the coverture, does not pass to the husband's assignees by the assignment in bankruptcy, as against the surviving wife. Of such a reversionary interest, therefore, the husband can have no power to dispose as against her chance of survivorship; for whatever he can lawfully and effectually part with, passes to his assignees by the assignment in bankruptcy. The indenture of the 10th of October 1812 cannot place Rose in a better situation, than that in which the assignee under a commission of bankrupt against Bolton would have been.

In Richards v. Chambers, and Seaman v. Duill (10 Ves. 580), Sir William Grant decided, that the Court had no jurisdiction, with the consent of a married woman upon examination, to direct a transfer to her husband of personal property settled upon the wife absolutely in the event of her surviving her husband. It is true, that there the reversionary interest of the wife could not have fallen into possession till the death of the husband: but, for the purpose of the present question, where is the difference between a reversionary chose in action which cannot, and one which by possibility may, but in fact does not, come into possession during the coverture? The marital right of the husband is founded on the fact [22] of his actual reduction of a chose in action into possession, and not on the possibility of his obtaining possession. In Pickard v. Roberts (3 Madd. 385), the Vice-Chancellor refused to take the consent of a married woman to part with her reversionary interest in a personal chattel. Why should not her consent be taken in such cases, if the assignment of the husband for valuable consideration can prevail over her right by survivorship? The effect of her consent is merely to destroy her equity to have a settlement out of her own fund; but if the husband can by such means bar her contingent right of survivorship as effectually as if he were dealing with a sum presently due, why should the Court be thus anxious to preserve that equity which in the other case it permits her to extinguish Howard v. Damiani (2 Jac. & Walk. 458) is no authority; the arrangement, which the order in that case permitted to be carried into execution, was entered into for the accommodation of the parties; and the attention of the Judge was not called to the subject.

The case of Dawbury v. Atkins (Gilb. Eq. Rep. 88), has no application to the question. There the legacy given to the wife was a present gift, though payable out of a reversion; and, in order to satisfy it, the reversion might have been sold forthwith. Besides, the decision cannot be deemed an authority for any purpose; for it was held, that the voluntary assignment of the husband not only barred the wife's right by survivorship, but, though her consent had never been taken, deprived her of her equity to have a settlement. In that decree, the rules, from which the Court, in dealing with such matters, never deviates now, were totally overlooked. The report of Grey v. Kentish (1 Atk. 280) is so inaccurate and incoherent, even in the statement of [23] the facts, that no reliance can be placed on the unconnected dicta ascribed to the Judge. Take the dicta, however, of Lord Hardwicke, as they are represented by Atkins in that case, and in the other cases which have been cited; they amount to nothing. They merely speak of the wife's possibility as a thing which the husband may assign, and of which his assignment, though void in law, will be supported in equity. Undoubtedly, it will be supported, in some events, against every person; in all cases, against himself and those who claim through him. But there is nothing in the language of Lord Hardwicke which either declares or implies, that it will be supported against the surviving wife and in Grey v. Kentish, he decided expressly in favour of her claim.

The cases relating to chattels real may be put out of consideration; for they turn on peculiar principles which have no application to choses in action.

Mrs. Bolton's interest in this chose in action was of such a kind, that Bolton could not have released it in 1812. The nature of a release, and the precedent of that species of instrument contained in Littleton (sect. 444), and followed by a comment

(sect. 445), in which the same author expressly states, "that no right passeth by a release, but the right which the releasor hath at the time of the release made," shew manifestly, that Bolton's release could have operated only on such right as he himself then had. But the wife's contingent right by survivorship was not and could not be in him; it was no part of his marital right; the title under which she now claims, is not derived through him, and therefore could not have been affected by his release. In Thompson v. [24] Butler (Moore, 522), a woman being entitled to an annuity of £30 during her life, her husband executed a release of it to the grantor: afterwards she was left a widow; and in an action brought by her, to which the release was pleaded, it was held, that the annuity was not extinguished by the husband's release. Even if it were made out that the husband can release the wife's choses in action and possibilities, so as to bind her after his death, it would not follow that his assignment must have the same power: for a release and an assignment are instruments widely different in their nature, in their mode of operation, and in their consequences.

Dec. 23, 1823. The Master of the Rolls [Lord Gifford]. The question is of too great and of too general importance to be decided without the most patient consideration, and without giving to both parties an opportunity of carefully investigating all the authorities on the subject. It is therefore my wish that the case should stand over, in order to be again argued by one counsel on each side. In the mean time, and without considering the point as decided, I may mention what my present impressions with regard to it are; and though I cannot say that I have yet arrived at a satisfactory conclusion, it may be useful that I should state the difficulties which I feel in assenting to the doctrine on which the petition of Rose proceeds.

I have always understood that the marital right of a husband to the choses in action belonging to the wife is a qualified, and not an absolute right. It is a right depending upon and subject to a condition, which is spoken of in the books uniformly in the same terms. Their [25] language invariably is, that the husband is entitled to such choses in action of the wife as he reduces into possession, and that reduction into possession is a condition upon which alone the law gives them to him. "Marriage," says Lord Coke (Co. Lit. 351 b), " is an absolute gift of all chattels personal in possession in her (the wife's) own right, whether the husband survives 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."

The doctrine is stated in the same way by a late respectable text writer, who, in a discussion of considerable length, has called in question the soundness of the decision in Hornsby v. Lee. "Marriage," says Mr. Roper, "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; for 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." (Roper's Law of Husband and Wife, 202.)

If then the law gives to the wife who survives her husband those choses in action belonging to her which the husband did not reduce into possession, and if it is only by reduction into possession that he can bar her legal right, or prevent her from retaining that which the law otherwise declares to be her's, how can it be said that her legal right is gone, where de facto he did not reduce the chose in action into possession, or where the chose in action was in its very nature incapable of being reduced into possession in his life-time? To come to such a conclusion, we must hold that the husband's qualified [26] right may be rendered absolute by something short of reduction into possession. We must alter the doctrine laid down in our books. It will no longer be true that the husband shall not have the chattels personal of the wife lying in action, unless he recover them or reduce them into possession during the continuance of the marriage. We must adopt a different phraseology, and have recourse to a substitute for reduction into possession-to something which shall be distinct from, yet tantamount to, that which has hitherto been regarded as a sine qua non in the completion of the husband's title.

What is universally the effect of assignment for a valuable consideration? Is there any case, in which assignment (especially of a chose in action, and unless where the doctrines of notice comes into application) operates otherwise than by putting the assignee in the situation of the assignor? Can the assignor give what he does not possess? Can he pass more than all his right, title, and interest? Then, where the wife has a chose in action which the husband cannot himself recover,