appears, the law seems to require that the wife shall have the note or bond if she survives." (Draper v. Jackson, 16 Mass. R. 482.)

§ 247. The possession by the husband of the wife's choses in action is the possession of the wife. This must be so from the fact that, in law, they are one person, and, vice versa, the possession of the wife is the possession of the husband. (McNeill v. Arnold, 17 Ark. R. 154. Lee v. Matthews, 10 Ala. R. 682.) This principle has its application in the case of a security taken by a husband in the name of his wife. Under such circumstances, it has been held that the taking the security in her name, constitutes a gift, and its retention in his custody is a delivery to him, and upon his death it belongs to her absolutely and not to his estate. (Scott v. Simes, 10 Bosw. R. 314.) In one of the cases herein before cited, a note was given to the wife during coverture. Parke, B., says : "When a chose in action, such as a bond or note, is given to a feme-covert, the husband may elect to let his wife have the benefit of it; or, if he thinks proper, he may take it himself; and if in this case a husband had in his life-time brought an action upon the note in his own name, that would have amounted to an election to take it himself, and to an expression of dissent on his part to his wife's having any interest in it. On the other hand, he may, if he please, leave it as it is, and in that case the remedy on it survives to the wife." (Yates v. Madeley, 6 Mees. & Wels. R. 423. Vide also Hart v. Stephens, 6 Queen's B. R. 937.) And in another of the cases referred to, a feme-covert, being an administratrix, received a sum of money in her character of administratrix and lent it to her husband, and took in return for it the joint and several promissory note of her husband and two other persons, payable to her with interest; and the court held that, although the wife could not have maintained an action on the note during the life-time of her husband, the note was a chose in action surviving to the wife, and that she could bring her action upon it on the death of her husband. (Richards v. Richards, 22 Eng. C. L. R. 119.)

In another case in the English courts, where the husband transferred two sums of bank annuities into the names of himself and wite, and died in her life-time, the court held that the wife, surviving her husband, became absolutely entitled to the stock, there being nothing to show that the husband intended that the transfers should have any operation but what they legally had. (Dummer v. Pitcher, 5 Simon's R. 35.) And still another and much older

case may be cited, in which the husband had lent out money in the names of himself and wife, upon bond and mortgage to him in their joint names, and the court held that the wife must be regarded as a joint purchaser and entitled to the securities by survivorship. (Christ's Hospital v. Budgin, 2 Vern. R. 683. Vide also Nash v. Nash, 1 Mad. C. C. 133.) These cases have been held to be good authority by the courts of this country, and go to show that a married woman is not disabled from being the beneficiary of a promise during coverture; she may be merely a promisee for her husband's benefit during his life, if he chooses to enforce it. But if he neglects to do it, the moment she becomes sui juris by the termination of the matrimonial relation, she can enforce her rights in her own name. (Vide Scott v. Simes, 10 Bosw. R. 314, 324. Gibson v. Todd, 1 Rawle's R. 455.)

§ 248. It is sometimes an important question as to what constitutes a reduction to possession of the wife's choses in action by the husband. A mere intention to do so, or a simple appropriation of the fund, will be insufficient. (Blunt v. Bestland, 5 Ves. R. 515.) So it is well settled that the mere receipt of interest on the wife's choses in action is not sufficient. (Hunt v. Stephens, 51 Eng. C. L. R. 939. Stanwood v. Stanwood, 17 Mass. R. 57. Hunter v. Hallett, 1 Edw. Ch. R. 388.) Nor is the mere fact that the husband joined with the wife in giving a receipt for the principal sufficient. (Timbres v. Katx, 6 Watts & Serg. R. 290. Vide Burnham v. Bennett, 9 Jur. 888.) The husband's taking the dividends of stock standing in the wife's name only reduces the dividends, and not the stock, into his possession. (Burr v. Sherwood, 3 Brad. R. 85.)

The acts to effect the transfer must be such as to change the property in the chose in action, or something which will divest the wife's right, and make that of the husband absolute. It is understood, however, that any act which clearly shows an intention on the part of the husband to make use of the property as his own, as mortgaging, releasing, taking a new security for the debt, procuring a judgment in his own name, appointing another to receive the amount, who actually receives it, is a sufficient act of ownership to reduce the property to the husband's possession, and bar the wife's right. (Schuyler v. Hoyle, 5 Johns. Ch. R. 196. And vide Stewart's Appeal, 3 Watts & Serg. R. 376. Forrest v. Warrington, 2 Dessau. R. 254. Moelpir's Appeal, 2 Barr's R. 71.) Pledging

the wife's note as security for a temporary loan is not evidence of the husband's intention to appropriate it; and a redemption of it by him places it in all respects in statu quo. This is not such a reduction of the note into the possession of the husband as will destroy the wife's interest in it. Neither will the chose in action be considered reduced by the husband to his possession merely by having the actual possession of the instrument. It is necessary that the money should be actually received by him, or by a third person as his agent, for his use; or that a judgment should be recovered and an execution issued in the name of the husband and wife, or in the name of the husband alone. (Latourette v. Williams, 1 Barb. R. 9. Vide also Hartman v. Dowdel, 1 Rawle's R. 279.) · But a legal or equitable assignment by the husband of the wife's chose in action, for value, is such a reduction of the title into possession as would bar the wife's right of survivorship; and an equitable assignment as collateral security for a present advance of money defeats the wife's right of survivorship, though merely pledging the chose in action does not have that effect. (Tritt v. Colwell, 31 Penn. R. 228.)

249. If the husband receives the fund which was owing to the wife, or if he, or he and his wife, authorize a person to receive it, who actually obtains it, either of such modes of receipt will change the wife's interest in the property, and will be a reduction of the chose in action into the possession of the husband, divested of her title to it upon surviving him; and he may maintain an action for the money so received by the person authorized. (1 Bright's Husband and Wife, 53, and authorities there cited).

When the husband was a lunatic, the payment into court of the wife's chose in action to the credit of the lunacy, was held to amount to a reduction into possession. (In re Jenkins, 5 Russ. R. 183.)

The transfer of the wife's stock into the names of the husband and another, in trust for the separate use of the wife, is not a reduction of the property into the possession of the husband which will entitle his representatives to hold it to the exclusion of his wife surviving, for it is regarded as simply made diverso intuiter. But a transfer of the wife's stock into her husband's sole name, will be a reduction of it into his possession, and defeat the wife's right

survivorship, because such a transfer is considered equivalent to a receipt of the money by the husband, and an act vesting the

a

sole property in him. (Wall v. Tomlinson, 16 Ves. R. 413.) An assignment by the husband, under the insolvent laws, vests in the assignors the personal estate of the wife in action, unless the same is secured to her as her separate property. But the assignee takes the legal interest subject to the wife's right by survivorship, if the husband dies before the assignor has reduced such property to possession. The assignee also takes the assignment of the wife's estate in action, subject to her equitable claim thereon, for the support of herself and infant children, if she has no other sufficient means for that purpose; provided such claim is asserted by the wife, or a suit is instituted in a court of equity for the recovery of such property, before the assignee has reduced it to possession. (Van Epps v. Van Deusen, 4 Paige's Ch. R. 64, 73, 74. Harper v. Ravenhill, 1 Tamlyn's R. 144. Pierce v. Thornely, 2 Sim. R. 167. Henner v. Morton, 3 Russ. R. 65, 90. Steinmitz v. Halthin, 1 Glyn & Jameson's R. 64. 2 Kent's Com. 193. Vide also Mitford v. Mitford, 9 Ves. R. 87. Outcale v. Van Winkle, 1 Green's Ch. R. 516. Matheney v. Guess, 2 Hill's [S. C.] Ch. R. 66. Hartman v. Dowdel, 1 Rawle's R. 279.)

The assignees of a bankrupt cannot maintain an action in their own name in a chose in action, made to the wife when sole. (Warrington v. Yates, 12 Mees. & Wels. R. 855.)

A voluntary assignment by the husband, without consideration, is not a bar to the wife's right of survivorship. (Burnett v. Kinasten, 2 Vern. R. 401. Judson v. Moulson, 2 Atk. R. 420. Caseoll v. Carroll, 11 Wheaton's R. 134. Parsons v. Parsons, 9 N. H. R. 321.)

§ 250. It would seem from authority that the husband cannot assign the wife's contingent interest in a chose in action, even for a valuable consideration, so as to deprive her of her right of survivorship. (Terry v. Brandon, 1 Rich. Eq. R. 78. And vide Maywood v. Johnston, 1 Hill's Ch. R. 228.) And in a case where the husband and wife assigned for a valuable consideration a moiety of a share of an ascertained fund in which the wife had a vested interest in remainder, expectant on the death of a tenant for life, and the husband died, the wife and tenant for life being still living, it was held that she might claim the whole share, as against the assignee. (Purden v. Jackson, 1 Russ. R. 1.)

In another case, the husband and wife assigned the interest in certain trust stock to which she would be entitled on the death of

her mother, as a security for the payment of an annuity granted by the husband. The husband afterward took the benefit of the insolvent debtor's act, and a general assignment of his property was made under it. The wife's mother, on whose death the stock was to be vested in her, died, and afterward the husband died without having done any act, or instituted any proceedings, to reduce the trust fund into possession. It was held that neither the assignee under the insolvent debtor's act, nor the annuitant, was entitled to the fund, but that it belonged to the surviving wife. (Hernsby v. Lee, 2 Mad. C. C. R. 16. And vide Mitford v. Mitford, 9 Ves. R. 87.) The same doctrine has been recognized as sound in a very late case in England, and although it is directly repugnant to several of the older cases, the better opinion is, that the husband cannot possibly make an assignment of the reversionary interest of his wife in a chose in action, so as to bar the wife as survivor, provided the interest continues reversionary until the death of the husband. (Ashley v. Ashley, 1 Collyer's R. 553. Vide also Ellison v. Elwin, 13 Sim. R. 309, and Morley v. Wright, 11 Ves. R. 19.)

§ 251. It has been held that when the wife was entitled to a reversionary interest in a fund, payment of it to the husband during the life of the person on whose death she would be entitled to it, amounted to a reduction into possession by the husband, so as to bar his wife's right by survivorship. (Dowell v. Earle, 12 Ves. R. 473.) And it has been held that when the wife's reversionary chose in action is expectant upon a prior life interest, the assignment or surrender of the life interest to the wife will have the effect of accelerating the reversionary interest, or converting it into an immediate estate so as to enable the husband to reduce it into possession. (Lachton v. Adams, 5 Law Jour. N. S. ch. 382. Hall v. Hugonin, 14 Sim. R. 598. 16 Law Jour. N. S. ch. 14. 10 Jur. 940.) It seems, however, that no acceleration of the reversionary interest will take place when the prior interest is vested in the husband alone. (Richards v. Roberts, 3 Mad. R. 384.) And the same doctrine seems to be held in case the interest is vested in the husband and wife. (Hall v. Hugonin, supra.) It would seem to follow from the authorities, that if the whole interest in the fund by any means becomes vested in the wife, it may be reduced into possession by the purchaser; although Mr. Bright thinks the doctrine can hardly be considered as fully established. (1 Bright's Hus. and Wife, 60.)