the husband wrote to one of the executors, requesting that the stock should be transferred into the names of certain trustees for the wife's separate use, and that the cash should be paid to himself: These requests were complied with: The husband employed part of the cash in increasing the amount of the stock: He afterwards became bankrupt, and died: It was held by Sir C. Pepys, M. R., that the stock transferred by the executors was not reduced into possession by the husband, and therefore belonged to the wife by survivorship; but that the assignees under the bankruptcy were entitled to the increase made by the husband. On the other hand, in Burnham v. Bennett (b), by a postnuptial settlement, reciting that a sum of stock, originally standing in the name of the wife, had been transferred into the names of trustees, and that it had been agreed that a promissory note for 500l., given to the wife by her brother, should be cancelled, and that he should give his bond to the trustees for the amount, it was witnessed agreed and declared that the trustees should stand possessed of these funds, in trust to pay the interest and dividends to the husband for life; then to the wife for life; and, upon the death of the survivor, to transfer the funds to the children of the marriage, and, in case there should be no children, then to such persons as the Wife should by deed or Will, during and notwithstanding her coverture, appoint, and in default of such appointment, to the husband, his executors, administrators, and assigns: There were no children of the marriage: The wife survived the husband: And it was held by Knight Bruce, V. C., that, in the event of the death of the wife without making a valid appointment, the fund would belong to the husband's personal representative, as having been reduced into the husband's possession by the settlement: His Honor agreed, that in the case of a wife having a chose in action, whether legal or equitable, the mere circumstance of the legal title being changed, does not, in general, affect (b) 2 Coll. 254. her; but considered, in the present case, that the whole of the circumstances formed one entire transaction, as binding and effectual as if the husband had received the money or stock himself: And the learned Judge said, that he agreed with the substantial result of Ryland v. Smith (c), and Wall v. Tomlinson (d); for as he understood them, the property had been made to change hands, with a view to an intended settlement; in each case the change was such, the circumstances were such, that if the settlement were treated as effectual, the wife was entitled; but if the settlement were not effectual, then there was no trust, and nothing but the legal title changed; and, therefore, in that view, the wife was entitled. Again, in Hansen v. Miller (e), a married woman, an infant, having become entitled to 9001. under the trusts of her mother's settlement, the trustees paid 400l., part of it, to her husband, upon the understanding that he should settle the remaining 500l. for the benefit of his wife in the manner after mentioned: Accordingly the trustees paid the 500l. to M. and N., the husband's nominees; and, by a deed made between the husband and wife and M. and N., it was declared that M. and N. should pay the income of the 500l. to the wife, for her separate use for life, and that after her death, the principal should remain upon such trusts as she should appoint by Will, and in default of appointment, in trust for her next of kin, according to the Statutes of Distribution: The wife survived her husband: And it was held by Shadwell, V.C., that the settlement was binding on her; and that, under it, she was entitled merely to the income of the 5001. for life, and not to the principal absolutely. Where a feme sole was entitled to a sum of money charged on her brother's estate, who, in a settlement made on the occasion of her marriage, covenanted to pay it to her husband, and the husband received the interest, but died VOL. I. (c) See supra, p. 767. (d) Infra, p. 771. 3 D (e) 14 Sim. 22. husband's receipt as trus tee: without having got in the principal, it was held to vest in the wife by survivorship (ƒ). In the case of Nash v. Nash, already stated (g), the receipt by the husband of part of the principal on the promissory note made to the wife, and of the interest upon the remainder, was held by Sir Thomas Plumer, V.C., to be no reduction into possession of such remainder, so as to bar the wife's right by survivorship (h). So also where money was left in the hands of trustees for the benefit of the wife, and her husband died, she was declared to be entitled to it by survivorship, her husband having made no disposition of it during his life (i). In Shuttleworth v. Greaves (k), the wife of F. Shuttleworth was the only child of a person who was entitled to certain shares in the Nottingham Canal, which, upon that person's death, were transferred into the names of "F. Shuttleworth and wife," the wife having been her father's administratrix : F. Shuttleworth was ever afterwards, until his death, treated by the Canal Company as the proprietor of the shares, and received the dividends upon them, and was elected to be, and acted as a member of a committee, which, by the Canal Act, was required to consist of proprietors of two or more shares: Lord Cottenham said that it was not necessary to express any opinion on the point, whether the transfer of the shares into the names of the husband and wife was a reduction into possession by the husband; because if such transfer did amount to a reduction into possession, so as to defeat the title of the wife surviving, a new estate was thereby created, under which she, as survivor of the two, would be entitled (1). The husband's receipt or possession of his wife's choses in action must be in the character of husband, in order to (f) Howman v. Corie, 2 Vern. 190. (g) Ante, p. 758. (h) See also Hart v. Stephens, 6 Q. B. 937. Accord. (i) Twisden v. Wise, 1 Vern. 161. (k) 4 Mylne & Cr. 35. (1) See also Low v. Carter, 1 Beav. 426, and ante, p. 675, as to the effect of an investment in stock by the husband in the joint names of himself and wife. defeat his wife's title by survivorship. Thus, in a case (m) where a trustee and executor married one of the residuary legatees named in the Will, it was determined that his possession of the testator's personal estate was to be considered as that of trustee and executor, he having alone proved; so that his wife's share of the residue could not be regarded as sufficiently reduced into possession to prevent its surviving to her upon his death. Upon the same principle, the case of Wall v. Tomlinson (n), was decided: There, certain East India Stock, belonging to the wife, was transferred into the names of her husband and another person, until trustees should be appointed, who were to hold the same upon certain trusts for the separate use of the wife, and which had been verbally agreed upon: The wife having survived her husband, the question was, whether the stock belonged to her, or to his legal personal representatives: And Sir William Grant, M. R., said, that the transfer of the stock to the husband merely as a trustee, could not be represented as a reduction into possession which would entitle his representatives; for that it was made diverso intuitu (o). It remains to consider the effect of proceedings at Law effect of proand in Equity, and submissions to arbitration, as to vesting and equity on ceedings in law absolutely in the husband the wife's choses in action. The naming or not naming the wife in an action, is attended with material consequences in relation to the present subject; for if she be a party, and the husband die after judgment, and before execution sued out, the judgment will survive to her, and she will be entitled to proceed upon such judgment (p). But if the action be brought by the husband alone, and he die after judgment, his representatives, and not the wife, will be entitled to the benefit of it (q). (m) Baker v. Hall, 12 Ves. 497. (n) 16 Ves. 413. (0) See ante, p. 769. (p) As to the cases in which the husband and wife must join, and those in which he may sue alone, or join with the wife, at his option, (q) Russell's case, Noy, 70. Og- the wife's choses in action: if the wife be joined in an action, the judgment may survive secus, if the husband sue alone: effect of proof under commission of bankrupt. decrees and orders in equity: Costs ordered by rule of Court to be paid to the husband and wife, having been held to survive to the wife (r). If the husband alone prove the wife's debt under a commission of bankrupt against the debtor, it seems that her right by survivorship is not defeated: and in a case where the husband had paid contribution money, and died before any dividend made, Lord Harcourt, C., directed the distribution to be made on behalf of the wife, repaying the husband's executors what had been paid for contribution (s). Decrees in equity so far resemble judgments at law in this respect, that until the money be ordered to be paid, or declared to belong to the husband, the wife's rights will remain undisturbed; and as a joint judgment will survive to the wife if her husband die before execution is awarded, so will a joint decree until an order be obtained for payment, or declaring the money to belong to the husband (t). Thus in Nanny v. Martin (u), there was a decree in a joint suit by husband and wife, for money which he claimed in her right: The husband having died before further proceedings, the wife, as in the instance of a joint judgment, was declared entitled to the benefit of the decree. So in Phipps v. The Earl of Anglesea (x), the decree was merely that the fund should be secured for the wife and her issue until a settlement was made: This order was held not to change the property so as to prejudice her title by survivorship: There was no declaration that the fund should be the husband's. In Bond v. Simmons (y), there was no decree pronounced altering the interests of the husband and wife: The order was a mere reference to the Master to receive from the husband proposals for a settlement, which the 676, 677, in Lord Hardwicke's (r) Tilt v. Bartlett, Hanmer. (8) Anon. 2 Vern. 707. (t) Murray v. Lord Elibank, 10 Ves. 91. 1 Roper, Husb. & Wife, 216, 2nd edit. See also Adams v. Lavender, 1 M'Clel. & Y. 41. Hore v. Woulfe, 2 Ball & B. 424. (u) 1 Eq. Cas. Abr. 68. (x) 22d Nov. 1738, MS. 1 Roper, Husb. & Wife, 217, 2nd edition. (y) 3 Atk. 20. |