1 H. Blackstone's R. 535. Vide also 1 Bright's Husband and Wife, 95.)

§ 240. If the wife has the right only to a term, the right will not survive to the husband, but will belong to the wife's representatives; and if the wife be the survivor, and the term remains in statu quo, she, and not her husband's next of kin, will be entitled to them. So if there be two single women joint tenants of a lease for years, and one of them marries and dies, the term will survive to the other joint tenant; for although the chattels real are given to the husband if he outlives his wife, yet the survivorship between the joint tenants was the elder title, which was not severed by the husband during coverture, marriage itself not having that effect. This, of necessity, is an exception to the general rule. (1 Bright's Hus. and Wife, 95, and authorities there cited.) When, during coverture, a lease for years is granted to the wife, adverse possession, which commences during coverture, may be treated as adverse to the wife or to the husband. (Doe v. Wilkins, 5 Nev. & Man. R. 435.) The' wife's remainder in leasehold property, vested in interest, though not vested in possession, becomes her husband's on marriage. (Matter of Lufe, 4 Edw. Ch. R. 395.)

The wife's chattels real may be taken on execution, and sold for the debts of the husband, and, by this means, the title is transferred by operation of law from the wife to the creditor of the husband. (Reeves' Dom. Rel. 22. 2 Kent's Com. 134. Miller v. Williams, 1 P. Wms. R. 258.)

§ 241. It seems to be settled that where the husband survives his wife, and, upon that event, becomes entitled to her term for years, he succeeds to them, subject to all charges and equities with which they were affected in her possession, so that if the wife has before marriage subjected her terms to an annuity, or other incumbrance, and her husband, either after her marriage or after her death, has renewed the leases, or surrendered the old, and taken new leases, the incumbrances in equity will attach upon such new leases, and the creditors will not be bound to contribute toward fines or expenses, in consequence of the transactions. (Moody v Matthews, 7 Ves. Jr. R. 174. Vide Winslow v. Tighe, 2 Ball & Beat. R. 195. Stubbs v. Roth, Ib. 548.)

If the husband is entitled to a term of years in his wife's right as executrix or administratrix, and have the reversion in fee in himself, the term will not be merged, because a man may have a

freehold in his own right, and a term for years in autre droit; and it seems essential to a merger that the term and the freehold should vest in a person in one and the same right. (1 Bright's Husband and Wife, 97, and authorities there cited.) As the husband is entitled to administer in his wife's right, where she is executrix or administratrix, he has a power of disposition over terms for years vested in her in such right. (Arnold v. Bidgood, Cro. Jac. 318.) So if a residue of a term of years be vested in the wife, as administratrix, her husband may release it, and his release would be good. (Levick v. Coppin, 2 Wm. Bl. R. 801. S. C. 3 Wils. R. 277.)

§ 242. Should a wife, at the time of her marriage, be a lessee for years, and her husband should take a lease of the land during the lives of both him and his wife, that act would amount to a disposition of the term, and the rights of the wife, by survivorship, would be thereby defeated, because, by the acceptance of the second lease, the term would be surrendered by operation of law. (1 Bright's Husband and Wife, 105.) So where a lease was granted to husband and wife for a term of years, and, after they entered, the lessor enfeoffed the husband, who died seised during his wife's life, it was held that this extinguished the term, and defeated the wife's right of survivorship, for the reason that, by such acceptance, the husband admitted the lessor's power to enter and make livery, which he could not lawfully do during the continuance of the term, so that, of necessity, this admission by the husband amounted to a surrender of the term. (Downing v. Seymour, Cro. Eliz. 912.)

If the husband mortgages the wife's term, as he may lawfully do, and neglects to pay the money when due, the estate of the mortgagee becomes absolute, and the wife's legal right by survivorship is defeated. (Vide Radford v. Young, 4 Vin. Abr. 50, pl. 15.) But if the equity of redemption be reserved to the husband and wife, she will be entitled to it by survivorship. (Pitt v. Pitt, Turn. & Russ. R. 180. Jackson v. Parker, Ambler's R. 687. Clark v. Burgh, 2 Col. N. C. C. 221. 9 Jur. 679.)

The husband's agreement to mortgage the wife's term will only be enforced against her to the extent of the money due. (Bates v. Dandy, 2 Atk. R. 207.)

The husband may forfeit the term of his wife, and thus defeat her right of survivorship, by his misconduct, as by committing waste; and, if he have a term of years in his own right, and

another in right of his wife, his forfeiture will extend to and comprehend both the terms. (1 Bright's Husband and Wife, 110.)

These are among the acts other than express alienation, by which the husband may divest his wife's chattels real, and defeat her right by survivorship.

§ 243. If the husband alone grant an under-lease of his wife's term of years, reserving a rent, that would be a good demise, and bind the wife so long as the sub-demise continued, and in case of the death of the husband before the wife, his executors would be entitled, not only to the subsequent accruing rents, but to the arrears due at his death, to the exclusion of the surviving wife; and the same rule would prevail in case the wife had been a party to the under-lease, provided the rent was reserved to the husband only, because the effect of the sub-demise and reservation was an absolute disposition pro tanto of the wife's original term, which she could not avoid, and the rent was the sole and absolute property of the husband. But if the rent was reserved to husband and wife in such a case, the surviving wife would be entitled to the future rents, and also to the arrears at her husband's death; because, as they remained in action, and were due in respect of the joint interest of the husband and wife in the term, they would, with their principal, the term, survive to the wife. (1 Bright's Husband and Wife, 43, 44.)

If arrears of rent accrued while. the wife was single, and her husband gave an acquittance for what became due after the marriage, and then died, the discharge would prevent his wife from recovering the arrears which were due at the time of the marriage, unless she could prove that the prior arrears remained unsatisfied. If the husband's acquittance be under seal, then it will bar the wife; if not under seal, it is merely a presumptive bar. (Merten v. Hopkins, Dyer's R. 271.)

Such is the doctrine at common law with respect to the interest which the husband has in the personal property of his wife, and in her chattels real, and the leading common law principles which apply to the subject. The changes which have been made by the statutes of several of the states will be fully considered hereafter. It ought to be stated, however, in this connection, that, although the personal property belonging to the wife at the time of her marriage, as a general rule, passes at once to the husband, under and in virtue of the marriage, yet it sometimes happens that the

marital right of the husband is excluded by some express or implied trust, for the sole and separate and exclusive benefit of the wife; in which case the husband has no right to appropriate the property to his own use. Such a trust may be contained in the provisions of a settlement, or by a trust-deed, or by the will of a third person; or the trust may be implied from the very nature and character of the gift itself. Gifts made after marriage by third persons may also be expressly given for the sole and separate use of the wife, independent of her husband; and when so given, if the husband consents to her receiving the gifts, he and his creditors are bound by the trust. This subject will be more especially considered hereafter. But if there be no such trust, then, as has been suggested, the husband becomes entitled to the wife's personal property by the marriage, and immediately after the marriage may appropriate the same to his own use (In the matter of Grant, 5 Law Reporter, 11), although there is a species of personal property given to the wife by third persons during coverture which does not pass to the husband. For example, mourning rings and the like, given by third persons to the wife since her marriage, are, from their very nature and character, purely personal, and, as memorials of the dead, and also of the affection of the living, they are sacred, and cannot be touched either by the husband or by his creditors. (In the matter of Grant, supra.)

CHAPTER XXI.

THE INTEREST OF THE HUSBAND IN HIS WIFE'S CHOSES IN ACTION IN POSSESSION THEIR REDUCTION INTO POSSESSION BY THE HUSBAND— EFFECT OF JUDGMENTS AND DECREES IN VESTING THEM IN HUSBAND · —SURVIVORSHIP OF WIFE, HOW BARRED-HER LEGACIES AND DISTRIBUTIVE SHARES-HER EQUITIES.

8244. MARRIAGE is only a qualified gift to the husband at common law, of the property of his wife, falling under the description of choses in action, which comprises debts owing to her, promissory notes, legacies, residuary personal estate and the like. This species of personal property belongs to the husband by the marriage, upon condition that he reduce it into his possession during

coverture, and if he happens to die before his wife, without having reduced such property into possession, she and not his personal representatives will be entitled to it. (Screven v. Blunt, 7 Ves. R. 294. Langham v. Newry, 3 ib. 467. Kitsinger's Estate, 2 Ashm. R. 455. Poindexter v. Blackburne, 1 Iredell's [N. C.] Eq. R. 286. Snowhill v. Snowhill, Executor, 1 Green's [N. J.] Ch. R. 30. Richards v. Richards, 22 Eng. C. L. R. 119. Gaters v. Madeley, 6 Mees. & Wels. R. 423. Legg v. Legg, 8 Mass. R. 99. Whitaker v. Whitaker, 6 Johns. R. 112. Glasgow v. Sands, 3 Gill. & Johns. [Md.] R. 96. Killorist v. Killcrist, 7 How. [Mass.] R. 311. Banks v. Marksbury, 3 Litt. [Ky.] R. 282.) But at common law, the husband during coverture has the absolute right to receive his wife's choses in action, and dispose of them at pleasure, the same as though he became possessed of the same by purchase; and he may sue and collect them in his own name, when they accrue during coverture, and in the name of himself and wife, when they belonged to the wife at the time of the marriage, and when collected the avails are his absolute property. (Authorities above cited, and 2 Kent's Com. 135.)

In the State of Pennsylvania, marriage has always been treated as only a conditional gift of the wife's choses in action, or a gift to the husband of her power to dispose of them to himself or any one else, by force of the dominion to which he has succeeded as the representative of her person, and because the gift is conditional he has a right to reject it by refusing to perform the condition; and hence, clear proof that a husband received his wife's money as a loan, or a disclaimer of intention to make it his own property, proved by his admissions, will then preserve her rights of survivorship. The rule that a gift always requires the assent of the donor is held to apply in such a case. (Gochenaur's Estate, 23 Penn. R. 460.) And in the State of Ohio, it has been held that a promissory note given to the wife before or during coverture, continues to be the property of the wife until the assertion by the husband of his marital rights. (Hoop v. Plummer, 14 Ohio St. R. 448.)

§ 245. Upon this subject it was said by the chief justice in the State of Kentucky, in a case involving several important questions connected with it, that "the choses in action of the wife at the time of her marriage vests in the husband sub modo only; that is on condition that he reduce them to possession, or otherwise dispose of them effectually during coverture. If the wife survive,