Reports of CASES ARGUED and DETER- [1] PURDEW v. JACKSON. Rolls. Dec. 19, 22, 1823; Feb. 3, 5, 1824. [S. C. 4 L. J. Ch. 1. See Honner v. Morton, 1828, 3 Russ. 70, 72; Widgery v. Tepper, 1877, 5 Ch. D. 521. For Bates v. Dandy, 1 Russ. 33, n. ; 3 Russ. 72, n. ; 2 Atk. 207, see Hutchings v. Smith, 1838, 9 Sim. 146.] Husband's assignment of his wife's reversionary interest in a personal chattel. Where husband and wife, by deed executed by both, assign to a purchaser for valuable consideration a moiety of a share of an ascertained fund, in which the wife has a vested interest in remainder, 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. Thomas Wrigglesworth, by his will bearing date in 1783, after giving some legacies and annuities, and devising a leasehold property, gave and bequeathed all the residue of his estate and effects to John Clifford, John Jackson, and William Complin, their executors and administrators, upon trust, as soon after his decease as conveniently might be, to get in such parts thereof as should consist of debts or securities, and to convert the other parts thereof into money. The sum thus produced they were to invest in the purchase of equal shares or quantities of reduced 3 per cent. bank annuities, and of consolidated 3 per cent. bank annuities and they were to receive from time to time the dividends of the stock so purchased, and to pay the same to the testator's daughter, Isabella Purdew, during her life; and after her decease, to his grand-daughter, Sarah M'Dougall, during her life. The testator further directed, that, after the decease of the survivor of Isabella [2] Purdew and Sarah M'Dougall, the trustees, or the survivors or survivor of them, or the executors or administrators of the survivor, should stand possessed of the consolidated and reduced annuities which should have been so purchased, and of the dividends and annual produce thereof, in trust, for all and every the child and children of Sarah M'Dougall, share and share alike. The share or shares of such child or children as should be a daughter or daughters were to be paid when she or they respectively should attain the age of twenty-one years, or be married with the consent and approbation of the trustees, which should first happen; and notwithstanding the postponement of the time of payment until after the decease of Isabella Purdew and Sarah M'Dougall, it was declared that the shares were to be deemed vested interests in such of the children, as, being a son or sons, should attain the age of twenty-one years, or die before that age, leaving issue; or, being a daughter or daughters, should attain that age, or be married with the requisite consent. John Clifford, John Jackson, and William Complin were named executors. Thomas Wrigglesworth died on the 5th of April 1788, leaving Isabella Purdew and Sarah M'Dougall him surviving. John Jackson alone proved the will, and C. XVIII.-1 acted in the execution of the trusts. He died in 1794, having previously invested the residuary estate of Thomas Wrigglesworth in the purchase of £5350 consolidated 3 per cent. bank annuities, and of a like sum reduced 3 per cent. bank annuities. Sarah M'Dougall died in 1802. She left seven children her surviving, all of whom subsequently took vested interests in their respective shares of the testator's residuary property. In 1804, a suit for carrying into execution the trusts of Thomas Wrigglesworth's will was instituted by Isabella Purdew, the children of Mrs. M'Dougall, and the hus-[3]-bands of two of them who were then married, against Susannah Jackson and Elizabeth Jackson, the surviving executrixes of John Jackson. By a decree made in that cause on the 26th of June 1806, it was, amongst other things, ordered that, the trust funds, consisting of the £5350 consolidated 3 per cent. bank annuities, and of so much of the £5350 reduced 3 per cent. bank annuities as should remain after the payment of the costs of the suit, should be transferred to the accountant-general, to the credit of the cause, upon the trusts of the testator's will; that the dividends of the stock should be paid to Isabella Purdew during her life; and that, on her death, any of the parties interested in the fund should be at liberty to apply. In pursuance of this order, and the proceedings that were taken upon it, £5350 consolidated 3 per cent. bank annuities, and £5223, 13s. 6d. reduced 3 per cent. bank annuities, were transferred to the credit of the cause. Margaret Ann M'Dougall, one of the seven children of Sarah M'Dougall, intermarried with Thomas Bolton, and, in April 1808, attained her age of twenty-one. By an indenture bearing date the 10th day of October 1812, and made between Thomas Bolton and Margaret Ann his wife, of the one part, and John Rose, of the other part, after reciting that Thomas Bolton was then, in right of his wife, entitled, amongst other things, to one equal seventh part of the residuary estate of Thomas Wrigglesworth, expectant and to take effect in possession on the decease of Isabella Purdew, and that the monies arising from that residue, and invested in stock, consisted of £5350 consolidated 3 per cent. bank annuities, and £5223, 13s. 6d. reduced 3 per cent. annuities, standing in the name of the accountant-general, to the credit of [4] this cause and after further reciting, that Thomas Bolton did, in the month of May then last, agree with John Rose for the absolute sale to him of one moiety of his, the said Thomas Bolton's, one undivided seventh part and share, in right of his said wife, of and in the said stocks, and other the stocks and funds therein mentioned, subject to the life interest of Isabella Purdew, for the price of £230, in part payment whereof the sum of £160 was advanced at the time of making such contract; it was witnessed, that, in pursuance of the said contract, and in consideration of the sum of £230 to Thomas Bolton and Margaret Ann his wife paid by John Rose, they, Thomas Bolton and Margaret Ann his wife, did assign unto John Rose one equal moiety of all that one undivided seventh part or share of the said Thomas Bolton and Margaret Ann his wife, in her right, of and in (amongst other sums) the several sums of £5350 consolidated 3 per cent. bank annuities, and £5223, 13s. 6d. reduced 3 per cent. bank annuities, expectant and transferable on the decease of Isabella Purdew, and all the right, title, and interest at law and in equity of them Thomas Bolton and Margaret Ann his wife, of, in, and to the same moiety, to hold the same unto the said John Rose, his executors, administrators, and assigns. And for the better enabling John Rose to get in the moiety so assigned to him, Bolton and his wife constituted Rose their attorney, with full power to sue for, recover, and receive the assigned property, and to give receipts for the same. The indenture contained likewise a covenant from Bolton, which was in the following words: "And the said Thomas Bolton, for himself, &c., doth hereby covenant, &c., that he, the said Thomas Bolton, shall and will, at any time or times hereafter, until the said money hereby assigned shall come into possession of, and be received by, the said John Rose, his executors, administrators, or assigns, at the request of the said John [5] Rose, his executors, administrators, or assigns, appear person as often as there shall be occasion for his so doing (upon his having notice thereof), at any office or place of insurance, or at any underwriter's, within the cities of London and Westminster, or shall send to him or them notice of his place of abode, and, if necessary, vouchers or certificates of his, the said Thomas Bolton's being living, and of the state and condition of his health, in order that he, the said John Rose, his executors, administrators, or assigns, may insure the life of him, the said Thomas Bolton for the in better and more effectually securing to him and them the said recovery and receipt of the moiety and premises hereby assigned; and further, that he, the said Thomas Bolton, shall not nor will do any act or thing, acts or things, whatsoever, that shall or may in any way impeach or render void any policy or policies of insurance made by the said John Rose, his executors, administrators, and assign, for insuring the life of the said Thomas Bolton; and further, that he, the said Thomas Bolton, shall and will pay all annual premiums or other sums of money necessary for effecting such insurance, and keeping the same alive and on foot, and shall and will indemnify the said John Rose, his executors, administrators, and assigns therefrom." This deed was executed both by Bolton and by his wife.(1) Rose having presented a petition in which he stated the assignment to him by Mr. and Mrs. Bolton, the Master of the Rolls, on the 21st of December 1812, made an order, that a moiety of one-seventh part of the two sums of bank annuities, standing in the name of the accountant-general in trust in the cause, should not be [6] transferred or disposed of without notice to Rose. This petition was served on Mr. and Mrs. Bolton; but when it came on to be heard, no counsel appeared for them. Some time afterwards, Mr. and Mrs. Bolton agreed to live separate from each other; and, on the occasion of their separation, a deed was executed, by which they assigned to two trustees all their share of the £5350 consolidated 3 per cent. bank annuities, and £5223, 13s. 6d. reduced 3 per cent. bank annuities, upon certain trusts for Mrs. Bolton's benefit. On Thomas Bolton died in the month of October 1819, leaving Margaret Ann, his widow, him surviving. Shortly afterwards she intermarried with William John Lenthall; and, by a settlement made previously to that marriage, she and the surviving trustee under the deed of separation assigned, among other things, her seventh part or share of the aforesaid two sums of stock to Thomas Davis and John Platt upon trusts, which were for the benefit of her and her intended husband. the 18th of September 1822, Isabella Purdew died. In the following November Mr. and Mrs. Lenthall, along with the trustees of their marriage settlement, presented their petition, not making any mention of the assignment to Rose, but stating their title to the one-seventh part of the fund in court as it arose under the will, the deed of separation, and the indenture of settlement, and praying that Mrs. Lenthall's share of the stock might be transferred to them. This petition was heard on the 29th of November 1822, before Mr. Baron Graham, Master Stratford, and Master Harvey, sitting for the Master of the Rolls; when the Court made an order, which, after providing for the payment of the costs out of £746, 4s. 10d., being one-seventh part of the £5223, 13s. 6d. reduced annuities, directed, that the residue of the £747, 4s. 10d. [7] reduced annuities, and also £794, 5s. 9d., being one-seventh part of the £5350 consolidated 3 per cent. annuities, together with any interest which should accrue on the same respectively, previously to the transfer thereof, should be transferred and paid to Thomas Davis and John Platt, upon the trusts of the marriage-settlement of Mr. and Mrs. Lenthall. In consequence, however, of the restraining order of the 21st of December 1812, this order could not be drawn up; and Rose immediately presented a petition, in which he insisted, that he was entitled, as a purchaser for valuable consideration, to a moiety of Mrs. Lenthall's share of the fund, and prayed that the minutes of the order of the 29th of November 1822 might be varied, so as to direct that one moiety only of the £746, 4s. 10d. reduced 3 per cent. bank annuities, and of the £764, 5s. 9d. consolidated 3 per cent. bank annuities, and of any dividends which should accrue due thereon, previously to the transfer, should be paid and transferred to Platt and Davis; and that the other moiety should be paid and transferred to Rose himself. This petition was heard before Mr. Justice Best, Master Stephen, and Master Dowdeswell, sitting for the Master of the Rolls, but no judgment was pronounced by them. Afterwards Mr. and Mrs. Lenthall and their trustees presented a counter petition, in which they insisted that the indenture of the 10th of October 1812, under which Rose claimed, was not valid and operative in law, to pass Mrs. Lenthall's share of and interest in the funds; and they, therefore, prayed that Rose's petition might be dismissed with costs, and that Mrs. Lenthall's seventh part of the residuary fund might be paid to them, notwithstanding the restraining order of the 21st of December 1812. [8] Upon these petitions the question arose, whether, where husband and wife, 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. 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 |