twenty-one years, or be married respectively, with the consent and approbation of the trustees, or of the survivors or survivor of them, or of the executors or administrators of the survivor, which should first happen; and notwithstanding the postponing the payment, assignment, or transfer of the share or shares of such child or children respectively until after the decease of the survivor of them the said Isabella Purdew and Sarah M'Dougall, all and every such share and shares respectively were to be deemed and considered as vested interests in such of the said children, who being a son or sons, should attain the age of twenty-one years, or die before that age leaving issue, and who being a daughter or daughters, should attain that age, or be married with such consent and approbation as aforesaid, which should first happen; and in case any such child or children, being a son or sons, should happen to die before attaining the said age of twenty-one years without leaving issue, or being a daughter or daughters, should happen to die before attaining that age without having been married, and with such consent and approbation as aforesaid, then to stand and be possessed of, and interested in, the share or shares respectively, of such child or children respectively so dying, of and in the said consolidated and reduced annuities respectively, and the interest, dividends, and annual produce thereof respectively, or so much and such part and parts of such share or shares respectively, as should not have been so paid, assigned, transferred, disposed of, or applied, in trust for the survivors or survivor, or others or other of such children of her, the said Sarah M'Dougall, and the same from time to time to go, accrue and belong, and to be paid, assigned or transferred to him, her or them respectively, (if more than one) equally between or amongst them, share and share alike, at such time, and in the same manner, as his, her or their original share or shares respectively should become payable, assignable or transferable to him, her or them respectively and the testator appointed John Clifford, John Jackson, and William Camplin, his executors. Thomas Wigglesworth died on the 5th of April 1788, leaving Isabella Purdew, his daughter, and Sarah M'Dougall, his grand-daughter, him surviving. John Jack son alone proved the will, and possessed himself of the assets. He died in 1794. In 1802 Sarah M'Dougall died, leaving seven children her surviving. In 1804 a bill was filed by Isabella Purdew the widow, and the children of Mrs. M'Dougall, and the husbands of such of them as were married, against Susannah Jackson and Elizabeth Jackson, the surviving executrixes of John Jackson, praying that the property might be secured for the benefit of Isabella Purdew during her life, and for such others of the plaintiffs as might be entitled to the same after her death, and that Elizabeth Jackson and Susannah Jackson might be discharged from the trusts. By a decree made on the 26th of June 1806, it was directed that the trust funds, consisting of 5,350l. Consolidated three per cent. Bank Annuities, and a like sum of Reduced three per cent. Bank Annuities, should be transferred to the credit of the cause, upon the trusts of the testator's will; that the dividends 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. Afterwards, part of the reduced annuities were sold out for the payment of costs, whereby that portion of the funds was reduced to the sum of 5,2231. 13s. 6d. stock. By an indenture, bearing date the 10th day of October 1812, and made between Thomas Bolton and Margaret Ann his wife, (late Margaret Ann M'Dougall, and one of the seven children of Sarah M'Dougall,) of the one part, and John Rose of the other part; after reciting that the said Thomas Bolton was then entitled, in right of the said Margaret Ann his wife, amongst other things, to one equal seventh part of the residuary estate and effects of Thomas Wigglesworth, expectant and to take effect in possession on the decease of Isabella Purdew, and that the monies arising from the said residuary estate and effects, and invested, consisted of the said 5,350l. three per cent. Consolidated Bank Annuities, and 5,2231. 13s. 6d. three per cent. Reduced Annuities, standing in the name of the Accountant General to the credit of this cause and after further reciting, that the said Thomas Bolton did, in the month of May then last, contract and 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 the said Isabella Purdew therein, for the price of 230l., in part payment whereof the sum of 160l. was advanced at the time of making such contract: It was therefore witnessed, that, in pursuance of the said contract, and in consideration of the sum of 230l. to the said Thomas Bolton and Margaret Ann his wife, paid by the said John Rose, they, the said Thomas Bolton and Margaret Ann his wife, did assign unto John Rose, all that one equal moiety of all that one undivided seventh part or share of the said Thomas Bolton and Margaret Ann his wife, in right of her the said Margaret Ann, of and in (amongst other sums) the said several sums of 5,3501. three per cent. Consolidated Bank Annuities, and 5,2231. 13s. 6d. three per cent. Reduced Bank Annuities, expectant and payable, and transferable on the decease of the said Isabella Purdew, and all the right, title, and interest at law and in equity of them, the said 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 the said John Rose to recover and get in the said moiety, they, the said Thomas Bolton and Margaret Ann his wife, constituted Rose their attorney, with full power to sue for and recover, and receive the said assigned premises, and to give receipts for the same. On the 21st of December 1812, an order was made by the Master of the Rolls, upon the petition of Rose, that a moiety of one-seventh part of the stock standing in trust in this cause, should not be transferred or disposed of without notice to Rose. In April 1823, Rose presented his petition, which, after stating these matters, alleged, that Margaret Ann Bolton attained her age of twenty-one years on the 20th day of April, in the year 1808;—that Isabella Purdew died on the 18th day of September then last past ;-that Thomas Bolton died in the month of October, 1819, leaving Margaret Ann his widow him sur viving, and that she subsequently intermarried with, and was then the wife of, William John Lenthall;-and that by an order in this cause, bearing date on the 29th of November 1822, and made upon the petition of Lenthall and his wife, and also of Thomas Davis and John Platt, the trustees of their marriage settlement-it was ordered, that 746l. 4s. 10d., being one-seventh part of the said 5,2231. 13s. 6d. Reduced Annuities, and the sum of 11l. 3s. 11d., being one-seventh part of 78l. 7s. 1d. cash in the Bank, remaining on the credit of this cause, should be carried over to the account of Thomas Davis, clerk, and John Platt ; and the Accountant General was to declare the trust thereof accordingly, subject to the further order of the Court; and, after giving directions for the taxation of costs, and for paying them by the sale of so much of the 746l. 4s. 10d. Reduced Annuities when carried over, as would be sufficient for that purpose,-it was further ordered, that the residue of the 7467.4s. 10d. Reduced Annuities, and also 7641. 5s. 9d., being one-seventh part of the 5,3501. Bank three 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 indenture of settlement made on the marriage of Mr. and Mrs. Lenthall. The petition added, that the last-mentioned order was still in minutes; that the petitioner, being entitled by purchase to a moiety of the stock and cash in the order mentioned, was desirous that the minutes of the order should be varied, by directing a moiety only of the stock and cash to be transferred, and paid as therein mentioned. It therefore prayed, that the minutes of the order, dated the 29th day of November 1822, might be varied, by directing one moiety only of the 7461. 4s. 10d. Bank three per cent. Reduced Annuities, and of the 117. 3s. 11d. cash, and of the 7641. 5s. 9d. Bank three per cent. Consolidated Annuities, and of any dividends which should accrue on the said monies previously to the transfer thereof, to be paid and transferred to Platt and Davis; and that, as consequential upon such variation, the moiety of the above-mentioned stocks and cash should be paid and transferred to the petitioner, John Rose. On the other hand, Mr. and Mrs. Lenthall, and their trustees, Mr. Davis and Mr. Platt, presented a counter petition. This petition stated, that by an indenture dated the 17th day of September 1814, and made between Thomas Bolton of the first part, Margaret Ann, his wife, of the second part, John M'Dougall of the third part, and Charles Platt and James Platt of the fourth part, (being made on the occasion of the separation between Mr. and Mrs. Bolton,) it was witnessed, that, for the considerations therein mentioned, Mr. and Mrs. Bolton assigned unto Charles Platt and James Platt, their executors, administrators and assigns, among other things, all the seventh part or share of them the said Thomas Bolton and Margaret Ann his wife, of and in the several sums of 5,350l. three per cent. Consols. Bank Annuities, and 5,2231. 13s. 6d. three per cent. Reduced Annuities, standing in trust in this cause, upon trust to assign and make over the said seventh part or share, unto such person or persons, and for such purposes as the said Margaret Ann Bolton should at any time, by any deed or deeds, writing or writings, &c. direct or appoint. It stated also another indenture, bearing date on the 1st of November 1819, being made between William John Lenthall of the first part, Margaret Ann Bolton of the second part, James Platt (who had survived his trustee,) of the third part, and Thomas Davis and John Platt of the fourth part, (which was a settlement made in contemplation of the intended marriage between Mr. Lenthall and Margaret Ann Bolton, and was executed pursuant to the requisites of the power contained in the deed of the 17th of September 1814,) by which it was witnessed, that Margaret Ann Bolton, in pursuance of her power, did, with the privity of her intended husband, appoint, among other things, all the one-seventh part or share of the aforesaid sums of stock, subject to Isabella Purdew's life interest, unto Thomas Davis and John Platt, their executors, administrators, and assigns, to hold the same upon trust, (after the solemnization of the marriage,) to pay the dividends thereof during the joint natural lives of William John Lenthall and Margaret Ann his wife, to such persons and for such purposes as she should by any writing, signed with her own hand, direct, and in default of, and until such direction, into her own hands for her separate use; and in case she should survive Mr. Lenthall, then from his decease, upon trust for her absolutely; but if she should die in the lifetime of her husband, then from and after her death, upon trust for such persons as she should by any will, deed, or writing appoint, and as to such parts of the property as should not be so disposed of by her, upon trust for such persons as would have been entitled to her personal estate, in case she had died intestate and unmarried. The petitioners further stated, that, on the 23d of November 1822, they had presented their petition, stating their title to the funds in question, under the abovementioned will, deed of separation, and the indenture of settlement, and praying that Mrs. Lenthall's share of the testator's residuary estate might be transferred to them; upon which an order to the effect prayed, was made by Mr. Baron Graham, Master Stratford, and Master Harvey, sitting for the Master of the Rolls;—that they had been prevented from having that order drawn up and passed, by means of the restraining order of the 21st of December 1812, made upon the petition of John Rose; and that the indenture of the 18th of October 1812, under which Rose claimed, was not valid and operative in law, to pass Mrs. Lenthall's share of the funds. They therefore prayed that Rose's petition might be dismissed with costs, and that the sums in question might be paid to them, notwithstanding the restraining order of the 21st of December 1812. Mr. Sugden and Mr. Girdleston supported the claim of Rose; Mr. Shadwell and Mr. Sidebottom appeared for Mr. and Mrs. Lenthall. The question, the counsel for Rose stated, was, whether, where husband and wife join in assigning, by deed duly executed, to a purchaser for valuable consideration, the wife's vested interest in a legacy, and the husband dies in the lifetime of the wife, and of the tenant for life of the legacy, the wife is entitled by right of survivorship to claim the whole fund against her own assign ment and that of her husband. The point had not hitherto been decided; for in Hornsby v. Lee, (2) the interest which the wife had was contingent; neither indeed was that a case of authority: it had been decided without a full consideration and examination of the subject, and had not been acquiesced in by the profession. At law the husband may release the wife's possibilities: Anon. (3) Theobald v. Duffay, (4) and Gage v. Gray.(5) So also he may assign a term to which she is entitled in remainder. In what respect does a possibility or a reversionary chattel interest in land differ, as to the present question, from a vested interest in remainder in a sum of money? If it is said that nothing can pass by the assignment of the husband and wife during coverture, except that which he has reduced into possession, the answer is, that the same principle must apply to both cases. The husband's assignment operates as a reduction into possession of the wife's reversionary interest in a term of years: why should it not have the same effect upon any like interest which she may have in other personal property? An actual reduction into possession, by the husband, of the wife's chose in action is clearly not necessary; for his assignment of her chose in action, to which she has a present right, but which remains a chose in action, is clearly valid : Worrall v. Marler,(6) Wright v. Morley. (7) And though a chose in action is not capable, strictly speaking, of legal assignment, it is nevertheless the subject of equitable assignment; and equitable assignments of such interests must be construed on the same principles as legal assignments of legal interests are. It might have made a difference, if the wife's reversionary interest had been of such a nature, that it could not have fallen into possession during the husband's lifetime. But it is not necessary to consider what would have been the rule of equity under such circumstances; for the interest of the wife was to commence immediately upon Mrs. Purdew's death, and Mrs. Purdew might have died during the husband's lifetime. (2) 2 Mad. 16. (3) 2 Roll. 134. (5) 1 Salk. 327. (6) 1 P. Wms. 460, n. (7) 11 Ves. 12. : There are many cases and many dicta, which establish the principle which we now contend for in Atkins v. Dawbury, (8) 300l. was given to a married woman, payable out of a reversion in real estate. The husband assigned this legacy to trustees upon certain trusts, and by his will bequeathed it upon the same trusts: it was held that his assignment was good, that he had a power to extinguish or release the legacy, and that his acts bound the wife surviving. So in The Duke of Chandos v. Talbot, (9) Lord King was of a similar opinion holding, that the husband might assign for valuable consideration, a possibility of a term, or a contingent interest which he had in right of his wife. The' same doctrine may be found in what is said by Lord Hardwicke in Grey v. Kentish. (10) The cases which may be cited on the other side, are all of one or other of two kinds they are cases in which the contest has been either between the husband and the wife, or between her and the assignees of her bankrupt husband. Now a particular assignee, for valuable consideration, is in a very different situation from a general assignee by operation of law-a principle which is admitted by Sir William Grant in Mitford v. Mitford. (11) That case therefore, and others of the same kind, form no objection to Rose's claim. Neither can there be here any question with respect to the wife's equity, to have a settlement out of the fund; for a moiety of the sum, which was bequeathed to her, remains her own; and a moiety of the fund has generally been thought sufficient to answer the wife's equity. It was further argued, that if the wife had appeared in court, and consented to the assignment of the fund to Rose, her rights would have been unquestionably bound. But there was here what was equivalent to consent for she executed the deed of assignment to Rose, and though served with his petition, that the fund might not be transferred without notice to him, took no steps to oppose him. : There were cited also :- Mr. Shadwell, for Mr. and Mrs. Lenthall, admitted, that the precise point, now in dispute, had not hitherto been before the Court. But he insisted that Hornsby v. Lee was an express authority in his favour; that the decision there had never been impeached; and that the doctrine, which was applied in it to the wife's contingent interest, was equally applicable to her vested interests in remainder. Such interests the husband could not reduce into possession; he could not make them his own, before the period, when they were to take effect in possession or enjoyment, arrived; and whether that period might or might not arrive during the coverture, was of no importance. The clear proof, that the reversionary interest of the wife in personal property, was not the husband's to dispose of, was this that it did not pass by the assignment in bankruptcy to his assignees, The assignment in bankruptcy passed unquestionably every thing over which the bankrupt had any disposing power. How then could he, by assignment to a purchaser for valuable consideration, convey that which he himself had not-that which, in the event of his bankruptcy, would not have passed to his assignees? The rights of the assignee, for valuable consideration, could not be greater than those of his assignor. The husband could not have released this legacy or any part of it: for it is laid down by Littleton, (12) that a man can release such right only as he had at the time of the release; and it appears from Thomson v. Butler,(13) that a husband cannot release at law the wife's future chose in action. The case of Atkins v. Dawbury, which has been cited, proved nothing; or, if it proved any thing, proved too much. The legacy there was not a reversionary legacy, though it was payable out of a reversion; for the reversion might have been sold, and the charge immediately satisfied. The wife, however, had no settlement out of it (12) S. 445, 446. (13) Moore, 522. made upon her; nor was her consent taken in court; so that clearly it would not be followed now. The doctrine of the other cases which had been cited, made, upon the whole, against the validity of the husband's assignment; and it was futile to endeavour to draw inferences from particular expressions ascribed by the reporter to the judge, in opposition to or unconnected with the points expressly decided. As to Howard v. Damiani, it was a consent case, and therefore decided nothing. Mr. Shadwell also cited Richard v. Chambers, 10 Ves. jun. 580. Mr. Sidebottom, in support of Mr. Shadwell's argument, contended, that there was no analogy between this case and that of the husband's assignment of the wife's reversionary interest in a chattel real. With respect to his alleged right to release the wife's possibilities, that release was equivalent to a receipt of the money, and a discharge to the person who was to pay it; and could therefore be of no effect where he could not be entitled to receive, and consequently could not grant a discharge. Neither were the right of releasing and the right of assigning convertible terms. The right of the husband in the wife's chose in action, was merely a right to reduce it into possession; and this chose in action never was reduced into possession; for it would be absurd to give that appellation either to the execution of the assignment by the husband, or to his receipt of the purchase money from the assignee. He cited Blount v. Bestland, 5 Vesey, 515. THE MASTER OF THE ROLLS. (14) The question is one of such general importance, that I will not now decide it. I do not even mean that the argument should be concluded at present. The most satis (14) Sir Thomas Plumer. |