Husband's interest in

wife.

With respect to the chattels real of a woman married chattels real of before the 1st January, 1883, not being her separate property under the above-mentioned Acts or otherwise, the husband is entitled to the rents and profits during the joint lives, and he has an absolute power of disposing of them either voluntarily or for a valuable consideration, by act inter vivos, and this power extends to reversionary and contingent interests, unless the interest is of such a nature that it cannot by possibility vest in the wife in possession during the coverture (c); but so far as this power is not exercised by a complete act during the coverture, they go to the survivor, without administration.

Chattels personal.

Choses in action.

ture.

The chattels personal of a wife married before the above date (not being her separate property under the Acts or otherwise) belong absolutely to the husband, so far as he obtains possession of them during the cover. The wife's paraphernalia, viz., her wearing apparel, and ornaments suitable to her condition in life, are a partial exception to this rule. These pass to the wife if she survives, but she cannot give them away in her lifetime. The husband may dispose of them (except wearing apparel) by an act inter vivos, but not by will, and they are subject to his debts (d).

With respect to the choses in action of a wife married before the above date (not being her separate property under the above-mentioned Acts or otherwise)-which term comprises debts owing to her, arrears of rent, legacies, reversionary interests in personal estate, stock in the funds, shares in companies (e), and other personal property not in possession-the husband acquires an absolute interest in the same, so far as they are reduced by him into possession during the coverture, but not otherwise; and an assignment for a valuable consideration of the wife's choses in action by the husband is void against the wife surviving, if the husband die before he or the assignee has reduced them into possession, although they could have been immediately

(c) Duberley v. Day, 16 Beav. 33.
(d) 2 Steph. Com. 287.

(e) Colonial Bank . Whinney, 11 App. Cas. 426.

reduced into possession, but from neglect or other causes have been left outstanding (f).

to a reduction

A chose in action is considered to be reduced into What amounts possession by the husband when he receives a sum into possession. owing to his wife, or when a fund is transferred into his name, or when a fund or money belonging to the wife is transferred into the name of, or paid to, a third party at the request of the husband (g).

Where money is paid to the wife or her agent, it will be considered as reduced into possession, and becomes at once the husband's property (h); but where money was paid into the hands of a third party, to be appropriated to the use of a married woman, and he wrote to her informing her that he had it at her disposal, this was not considered a reduction into possession (i).

If the chose in action is recoverable at law, and the husband obtains judgment, but dies before execution, it has been held that the debt goes to the wife, and not to the husband's executor (k). On the other hand it was decided in two early cases that the order or decree of a court of equity for payment of a fund to the husband was a reduction into possession (1). The ground of these decisions appears to have been that a decree in equity was distinguishable from a judgment at law, because in the case of a judgment an ulterior step has to be taken by the party recovering to make it operate upon the thing recovered (m).

Effect of

judgment at

law or decree

in equity.

reduction into

The receipt by the husband of interest on his wife's What is not a mortgage debts or other choses in action does not con- possession. stitute a reduction into possession of the principal (n). Again, a payment of the fund into Court by the trustee is not of itself a reduction into possession (o), nor a

(f) Ellison v. Elwin, 13 Sim. 309; Ashby v. Ashby, 1 Coll. 553; Hutchings v. Smith, 9 Sim. 137; Michelmore v. Mudge, 2 Giff. 183.

(g) See Hansen v. Miller, 14 Sim. 22; Allday v. Fletcher, 1 De G. & J. 82; Hamilton v. Mills, 29 Beav. 193.

(h) Carne v. Brice, 7 M. & W. 183; Molony v. Kennedy, 10 Sim.

254.

(i) Fleet v. Perrins, L. R. 4 Q. B.

In what cases a husband can

transfer by executors of a fund belonging to a married woman into the names of other trustees for her benefit(p), nor a transfer of the fund into the wife's name(), or into the joint names of husband and wife (r). In a case where the husband was executor and trustee, it was held that his possession in that character was not a reduction into possession of the wife's share of the residue so as to entitle his executor to it, as against the wife surviving (s).

Where the chose in action cannot fall into possession during the husband's life, it is impossible for him to assign it as against his wife surviving.

If the chose in action is immediately recoverable at

release choses law, it may be released by the husband.

in action of wife.

Reversionary interest of wife

Where a husband agreed with the executor that a legacy given to his wife should be set off against a sum of the same amount owing from him to the testator on his promissory note, and the husband and wife signed a receipt for the legacy, but it did not appear that the promissory note was given up, it was held that the wife having survived, was entitled to the legacy, no release having been given for it by the husband (t). But in a case where a married woman was entitled to a sum of money owing to her on a promissory note, and the husband agreed with the debtor that the promissory note should be cancelled, and that in consideration. thereof the debtor should give his bond for the same amount to trustees nominated by the husband upon the trusts of a post-nuptial settlement, and the debtor gave such bond accordingly, it was held that this transaction amounted to a reduction into possession, and that the right of the wife by survivorship was effectually barred (u).

So long as the interest of a wife in personal property

(p) Ryland v. Smith, 1 My. & Cr. 53. See also Rawlins v. Birkett, 25 L. J. Ch. 837; Topham v. Morecraft, 4 Jur. N. S. 611; Wall v. Tomlinson, 16 Ves. 413; Bourton v. Williams, L. R. 5 Ch. App. 655. (1) Wildman v. Wildman, 9 Ves. 171.

(r) Prole v. Soady, L. R. 3 Ch. App. 220; Nicholson v. Drury, &c. Compy., 7 C. D. 48.

595.

Baker v. Hall, 12 Ves. 497.
Harrison v. Andrews, 13 Sim.

(u) Burnham v. Bennett, 2 Coll. C. C. 254.

reduced into

possession by

release of prior interest.

is of a reversionary nature, it is incapable of being re- cannot be duced into possession, and therefore cannot be affected by any act of the husband so as to bind the wife surviving; and where a wife has a present life interest in a fund, that portion of the life interest which will remain to her after her husband's death, if she survives him, is reversionary within the meaning of the rule, and cannot be disposed of by the husband (r). It has been sometimes attempted to evade this rule and to bring the reversionary interest of the wife into the possession and control of the husband by obtaining a surrender or release of the prior interest; but it has been held that such a scheme is ineffectual. Thus, where a fund in Court was subject to a trust for a husband for life, remainder to his wife for life, remainder to their son absolutely. The husband and son by deed surrendered and released their respective interests to the wife for the purpose of giving her a present absolute interest in the fund; a petition by the three for payment of the fund to the son was refused on the ground that a court of equity will not establish an equitable merger by analogy to law, where the effect would be to defeat its own rules and practice in the protection of married women from the marital control (y).

disposed of,

certain cases,

together by

latter.

But the husband and wife may together, by a deed But may be acknowledged by the latter, dispose of a reversionary except in interest in money charged on land, or in money to by husband arise from the sale of land impressed with a trust for and wife sale (≈), and also of a reversionary interest in any deed acknowpersonal estate to which the wife has become entitled ledged by under any instrument made after the 31st of December, 1857 (except such interest in personal estate as may have been settled on her by any settlement, or agreement for a settlement, made on the occasion of her marriage, and except also any interest which by the terms of the instrument she is restrained from alienating), and may also release or extinguish any

(x) Stiffe v. Everitt, 1 My. & Cr. 37. See also Bolito v. Kinniar, 11 Jur. N. S. 556.

(y) Whittle v. Henning, 2 Ph. 731.

(z) 3 & 4 Will. 4, c. 74.

Marriage, when a severance of

power vested in her in regard to any such personal estate (a).

The marriage before the recent Act of a female joint tenant severs the joint tenancy as regards any property joint tenancy. which, by the mere act of marriage, vests in the husband, i.e., personal chattels in possession, but not as regards chattels real or choses in action (4).

Equity to a settlement, what it is.

Amount to be

upon circum

stances.

II. The wife's equity to a settlement in respect of property accruing to her during the coverture not subject to the above-mentioned Acts.

A chose in action of the wife, not being her separate property under the above-mentioned Acts or otherwise, may be paid or transferred to the husband, or to his assignee, or to trustees for his benefit (c), by the trustee or other person in whose hands or name it is, at any time before proceedings have been instituted for a settlement; but should such trustee or other person refuse to pay it over, the Court will, in an action by the husband to recover it, oblige him to make a reasonable provision thereout for his wife and children (d). This right of the wife is called "her equity to a settlement." And the wife may herself take proceedings to assert this equity.

The general rule is to settle one half on the wife, and settled depends to pay the other half to the husband or his assignees; but the Court, in determining what will be a reasonable provision, will be guided in each case by all the circumstances, such as the amount of the fund, the provision that may have been already made for the wife, the amount of property of the wife of which her husband may have previously possessed himself, the means which may be available for her support, &c., &c. Thus, in several cases where the fund was small, and the wife and children had no other means of support, the Court

(a) 20 & 21 Vict. c. 57.

(b) In re Butler's Trust, 38 C. D.

286.

(c) Hansen v. Miller, 8 Jur. 209.

(d) Elibank v. Montolieu, 5 Ves. 737; Vaughan v. Buck, 1 Sim. N. S. 284.