Browning v. Headley.
August, 1843.
Lewisburg.
(Absent Cabell, P„ and Brooke, J.)
[40 Am. Dec. 755.]
Husband and Wife — Assignment of Wife’s Choses— Reversionary Interest — Rights of Assignee. — The rule laid down by sir Thomas Plumer in Hornsby v. Lee, 2 Madd. O. R. 16, american edi. 352, and Pur-dew v. Jackson, 1 Russ. I, and afterwards confirmed by lord Lyndhurst in Honner v. Morton, 3 Russ. 65, 3 Cond. Iingi Oh. Rep. 298, that where a hnsband assigns personal property in which his wife has a reversionary interest expectant on the death of tenant for life, and the wife and the tenant for life both outlive the husband, the wife is entitled by survivorship in preference to the assignee, recognized as correct by Allen, J. Contra, opinion of Gibson, C. J., in the case of Si ter & another, 4 Rawle 471-483.
Same — Same—Present Interest -Rights of Particular Assignee. — The rule laid down in Lord Carteret y. Paschal. 3 I’, wins. 197. 2 Brown's Par. Cas. 341 10, (Tomlin's edi.) and Bates v. Dandy, *2 Atk. 207; 1 Russ. 33, note, and 3 Russ. 70; 3 Cond. .Eng. Ch. Rep. 301, note, that where the wife has a present interest in personal property, and the husband makes a particular assignment of that interest for valuable consideration, though the thing- assig-ned be no farther reduced into possession during- the coverture, the title of the particular assignee will be good against the wife surviving, recognized as correct by judges AnLKN and StaNAKD.
Same — Same—Same—Effect of Divorce — Case at Bar.— A testator directed his personal estate to be divided into shares, of which he gave one share to his daughter. The daughter’s husband, for valuable consideration, assigned all the interest to which he was entitled, in right of his wife, in her father’s estate. After this assignment, an act of assembly was passed by the legislature of Kentucky, in which state the husband and wife had become domiciled, declaring the marriage contract between them forever dissolved so far as respects her, and restoring her to all the rights and privileges of an unmarried woman, and further declaring her entitled, out oí the estate of the husband, to receive alimony agreeably to the laws of the commonwealth. On a bill by the as-signee against the testator’s executor, the husband. and the wife, to recover her share of her father’s estate, held by two judges. 1. That by the act of divorce, the right of the wife to her choses in action not reduced into possession during the coverture, is placed on the same ground as if the husband had then died: but, 2. That the interest of the wife in the subject assigned being a present, not a reversionary interest, and there being a particular assignment of that interest for valuable consideration, the title of the assignee is good against the wife.
Same — Same—Wife’s Equity to Settlement — Amount *632of Settlement.? — 1The doctrine of the engrlish chancery, that where an absolute equitable interest is given to the wife, the court will not permit the husband to recover it without making a provision for .the wife, and that the husband’s assignee, whether general or particular, takes his interest subject to the same equity, recognized as binding upon the courts of this state. And the doctrine carried farther than it was carried in Beresford &c. v. Hobson &c., 1 Madd. C. R. 361, american edi. 199, by sir Thomas Plumer, who considered that the court in no case had given the whole to the wife; not even “ where the husband has left his wife and gone abroad.”
Same — Same—Same—Same—Case at Bar. — A testator directs his estate other than slaves to be turned into money, and directs the slaves and money to be divided amongst ten legatees, any advances to whom are to be deducted from their respective shares. The husband of a daughter assigns her interest for valuable consideration. On a 342 bill by the assignee ragainst the executor, the husband, and the wife, it is insisted by the wife that a provision should be made for her. No evidence is taken by the assignee to shew that the whole interest would be more than an adequate provision. But it appears that the penalty of the executor’s bond was only 30,000 dollars, and the consideration for the assignment only 1600 dollars; that the husband had received from the testator upwards of 2000 dollars in money and property, and that he had squandered the same, and then abandoned his wife, leaving her with 6 or 7 children in a destitute condition, in consequence of which she obtained a divorce. Held, under the circumstances, no enquiry before a commissioner is necessary, to ascertain what would be a reasonable provision for the wife; that it is plain the whole residue coming from her father’s estate will not be more than an adequate provision for her; and thebill should be dismissed.
Same — Same—Consideration of Assignment — Evidence. —A share of the proceeds of a testator’s estate being bequeathed to a feme covert, and her hus'band having assigned the same, a bill is filed by the assignee, which alleges that the assignment was in consideration of 1600 dollars. The executor and the feme both answer, but the answers do not deny the consideration, or call for proof of it; and the deed of assignment purports on its face to be in consideration of 1500 dollars. It seems, there being no such denial or call for proof, the deed is prima facie evidence of the allegation in the bill. Accord. Scott & wife &c. v. Gibbon & Co. &c., 5 Munf. 86.
William Headley, then of the county of Frederick in Virginia, made his will bearing date the 4th of April 1836, by which he desired that all his estate except slaves should be sold, his funeral expenses and just debts be paid, and the remainder of his estate (including the slaves as well as money and bonds) be divided into ten equal shares, of which he gave one share to his daughter Winifred Browning. The nine other shares were given to other children, and the children of deceased children; and then there was this clause: “And whereas I have at sundry times made advances to my sons and sons in law, as will more fully appear by reference to instruments of writing now in my possession; now it is my will and desire that the advances alluded to shall be accounted for and deducted from the legacy or share of such son or son in law, 343 or from the children'*of such, in case they are the legatees of such share or legacy.’’ The will was admitted to record in the court of Warren county on the 28th of April 1836, and on the 29th of the same month Newton Headley qualified as executor, giving bond and security as such in the penalty of 30,000 dollars.
Winifred Browning was the wife of Joseph Browning; and he executed the following deed:
“Know all men by these presents, that I Joseph Browning, in consideration of the sum of 1S00 dollars to me in hand paid by Willis Browning, have transferred and assigned, and by these presents do transfer and assign unto the said Willis Browning, his executors, administrators or assigns,' all the interest to which I am entitled, in right of my wife Winifred Browning, in the estate of William Headley deceased, together with all the benefit and advantage that may be obtained thereby. And X do hereby grant to the said Willis Browning, his executors, administrators or assigns, full power to recover the same for his or their use. As witness my hand and seal this 31st day of May 1836.
Joseph Browning, [Seal.]’’
On the day this deed bears date, it was acknowledged before two justices of the peace, and on the 2d of June 1836, it was admitted to record in the office of Warren county court.
Upon the application of Newton Headley executor of William Headley, the court of Warren county, on the 22d of December 1836, appointed commissioners to divide the testator’s slaves among his legatees, and make report thereof to the court.
The report of the commissioners bears date the 2d of January 1837. It states that they had made the division, and mentions the part of Winifred Browning as follows: “Dot No. S, allotted to Winifred Browning; viz. Rachel, Elias, Fanny and Eleanor (12 months old). Receives from lot No. 9, 27 dollars SO cents.”
344 *On the 9th of January' 1837, “an act for the benefit of Winifred Browning, ” which had been passed by the general assembly of the state of Kentucky, was approved by the governor of that state. It declares “that the marriage contract heretofore existing between Joseph Browning and his wife Winifred Browning is forever dissolved, as far as respects said Winifred, who is hereby restored to all "the rights and privileges of an unmarried woman, and that she be entitled, out of the estate of the said *633Joseph Browning, to receive alimony agreeably to the laws of this commonwealth.”
On the 23d of February 1837, the report of the division of the slaves was returned to the court of Warren county, examined by the court, confirmed, and ordered to be recorded, (there being no exceptions thereto).
Soon afterwards, to wit, on the 31st of March 1837, a suit in equity was commenced in the circuit court of Warren by Willis Browning. The bill, after setting forth the will of William Headley, and the legacy thereby given to Winifred Browning, alleges that Joseph Browning the husband of the said Winifred, on the 31st of May 1836, by a deed of that date, “for and in consideration of the sum of 1S00 dollars,” transferred and assigned to the plaintiff all the interest to which he was entitled, in right of his wife Winifred, in the estate of the said William Headley. It states, that though the testator left no debts that need procrastinate or embarrass the distribution of the estate, the executor refuses to assign to the plaintiff the share of the said state to which he is entitled by virtue of the said assignment from the said Joseph, and that there has been as yet no valid division of the negro property left by the said testator The bill makes Newton Headley as executor, and also in his own right as legatee, Joseph Browning, Winifred Browning and the other legatees, defendants, and prays for a legal division of the slaves 345 belonging to the ^estate, a full distribution of the said estate, and the payment and transfer to the plaintiff of the share to which he is entitled by virtue of the said assignment.
The executor answered, admitting it to be true that the testator died seized and possessed of a considerable estate, real and personal, and stating, that in the spring of 1836, he made sale of the land and perishable estate upon a reasonable credit, and since then there had been a division of the slaves, which he was advised was legal; that tne money for the sales had not j'et been all collected ; but that he had delivered nearly all the shares of the slaves to the parties entitled. Winifred Browning’s share of the slaves he admitted was still in his possession. He had refused to deliver it to the plaintiff, he said, for several reasons, which he was advised were good. 1st. He was informed by his s<ster Winifred, that she had obtained from the legislature of Kentuckj', where she resided, an act of divorce; and she had given him formal notice not to pay her portion of her father’s estate to the said Joseph, or any one. 2dly. He was advised that before said Joseph Browning or his assignee could recover the property of the said Winifred, the court would compel him to make a settlement upon her of a reasonable portion; and the respondent was gratified that he had it in his power to secure to his unfortunate sister a part at least of the property her father had bequeathed to her; for, he added, her husband had spent all that the testator gave to his daughter during his life, and for some years past had wholly abandoned her. 3dly. He found among the testator’s papers a note given by Winifred Browning to her father in 1829, for a sum of money advanced to her by the testator, and he was advised the same should be deducted from her share. The note was filed as an exhibit. It was for 1000 dollars with interest from the 1st of January 1829; but on it were endorsements' of credits, stating a balance to be due of 20 dollars 25 cents.
346 *Winifred Browning also put in an answer, which was sworn to before a justice of the peace of Kentucky in July 1837. She said, it was her misfortune to have become the wife of Joseph Browning, but for many years past they had not lived together; that during their residence together, she was doomed to suffer much distress of mind and body, in consequence of the bad temper and habits of her husband; that while they were living in the state of Kentucky, the said Joseph Browning finally abandoned her to the adversities of the world, and returned to Virginia, where they were first married; that he is still in Virginia, and she still lives in Kentucky, and is compelled to struggle alone for the support of herself and family; that being thus abandoned by her husband, she applied to the legislature of Kentucky, and obtained from that body an act of divorce. She says she is informed, with much pain and regret, that her late husband embraced the earliest opportunity after the death of her father, to wrest from her the pittance of property that had been bequeathed to her by her father, and to sell and transfer it to strangers. She is advised that the divorce put an end to his marital rights, and that neither he nor his assignee has any authority to call upon the executor of her father for the legacy bequeathed to her; and she insists that the plaintiff cannot recover it in this suit. In any event, she asks the court not to lend its aid to the plaintiff without first securing to her a suitable portion.
On the part of the plaintiff, depositions were taken (to prove the deed of assignment) of a person acquainted with the handwriting of Joseph Browning, and of the justices before whom the deed was acknowledged.
On behalf of mrs. Browning, the deposition of Newton Headley her codefendant was taken in April 1838. He deposed that Browning and wife moved to Kentucky 10 or 12 years before; that she came to 347 Virginia *'in the latter part of 1835 or the first of 1836, and he came in April 1836; that she returned to Kentucky with him in the spring or summer of 1836, soon after which time he left his family and had not since been with them; that he left 6 or 7 children with his wife, and left them in a poor and destitute condition; that he had been idle and extravagant, and treated his family very harshly; that he had received upwards of 2000 dollars of William Headley *634in money and property, all of which he had squandered before he left his family; and that the witness had advanced Browning and wife 100 dollars, which he thinks was before he heard of the plaintiff’s claim.
Browning, though served with process, filed no answer.
The cause came on to be heard before-judge Smith the 30th of March 1839. On consideration whereof, the court, for reasons stated in a written opinion, decreed that the bill of the plaintiff be dismissed with costs. The following are' extracts from that opinion:
“It appears there had been a bona fide change of residence by Joseph Browning and wife, from Virginia to Kentucky, and such residence in Kentucky had continued for 12 years previous to the act granting the divorce. Under such circumstances, I think it perfectly clear that the legislature of Kentucky had jurisdiction to pass the act in question, and that the divorce is valid. Indeed it is admitted to be so by one of the plaintiff’s counsel; and I think it unnecessary to make any farther remark on that subject.
“The question then is as to the exclusive right of mrs. Browning to the legacy in question, founded on her having survived the coverture; the divorce having placed her claim on precisely the same ground on which it would have stood if Joseph Browning had died on the 9th of January 1837.”
348 *(The judge first considered the effect of the order of court appointing commissioners to divide the slaves, and the proceedings thereon, and after coming to the conclusion that the plaintiff could not support his case on the- ground of a reduction of the slaves into possession during the coverture, proceeded as follows:)
“We come now to the question whether mrs. Browning’s right, based upon her having survived the coverture, is defeated by the assignment from Joseph Browning to the plaintiff.
“It is contended that the assignment was for a valuable consideration, and made at a time when the husband had the power to reduce the legacy into immediate possession ; and the proposition is that such an assignment is equivalent to an actual reduction into possession, and defeats the wife’s right of survivorship.
“In the case of íd’Mechin v. -Heinzman, in the court of Hardy, I had occasion to examine the authorities as to the effect of precisely such an assignment, in relation to the claim of the wife to a settlement; the coverture still existing, and the assignee applying to the court for a decree to enforce the payment of the wife’s legacy to him. Upon a careful examination of the authorities, and especially Earl of Salisbury v. Newton, 1 Eden 370; Jewson v. Moulson, 2 Atk. 417; Eike v. Beresford, 3 Ves. 506; Wright v. Morley, 11 Ves. 12; Kenny v. Udall, 5 Johns. Ch. E. 464; Haviland v. Myers, 6 Johns. Ch. E. 27; Haviland v. Bloom, 6 Id. 178. I was entirely satisfied that according to authority, although there were some decisions to the contrary, the wife was clearly entitled to a provision out of the fund. It is admitted in his case that the wife is entitled to a settlement: the only question is as to her right of survivorship, the coverture being dissolved.
“The rule is that the husband is only entitled to such of the wife’s choses in action as he may reduce into possession during the coverture.
349 *“In the case of assignments by operation of law, as in the case of bankruptcy, and taking the oath of insolvency, it is well settled that the assignees stand in exactly the same situation, as to the choses in action of the wife, as the husband stood; and therefore in such cases the right of survivorship to the wife exists and must prevail, unless the choses in action be reduced into possession during the coverture, by the husband or his as-signee. And the case of M’Mechin v. Heinzman was decided upon the ground that an assignment by the husband for a valuable consideration, although the property was immediately reducible to possession, stood precisely upon the same ground as an assignment by operation of law; that the husband by his assignment could not place the assignee in any other situation in relation to the wife’s interest, than he himself occupied. And this principle, as I supposed, was applicable as well to her claim by right of survivorship, as to her equitable claim to a provision out of the fund during the coverture. Upon a reconsideration of the authorities, I am still of opinion that this is correct as a general rule. The only doubt I now have is whether the rule is not subject to some qualification. I had not adverted to any supposed distinction as-to the subject matter of the assignment, or the terms in which it is made.
“I find, however, that a distinction has been taken in these cases. Judge Tucker in his commentaries, vol. 1, bk. 1, p. 118, (2nd edition) uses this language: ‘But what is the effect of the assignment on the wife’s right of survivorship, if the husband dies before the chose in action is reduced into possession? Here it is admitted that assignees of a bankrupt, &c. coming in by act of law, stand only in the husband’s shoes, and of course the right survives to the wife, (1 Atk. 280; 1 Brown’s Ch. E. 44, 50; 2 Dick. 492; 9 Ves. 87; 10 Ves. 578,) though there seem to have been some decisions the other way, 350 *1 P. Was. 458; 3 Ves. 617. And so as to assignments by act of the husband ; if of a general nature, the assignee stands in the husband’s shoes, and the right survives to the wife. But an assignment of a particular chose in action for valuable consideration, is a complete disposition and reducing into possession.’ He refers to Newland on Contracts 136-7.
“Newland, after revising the cases, says, ‘It should seem that any assignment *635by contract by the husband, of the above species of the wife’s property,’ (chose in action) ‘if it be of a general nature, will not, though founded on a valuable consideration, bar the right of survivorship. For such an assignment places the assignee precisely in the same situation in which the husband stood. Upon that principle it was, that the former was obliged to make a provision for the wife out of her property. It appears to follow therefore as a necessary consequence, that such an as-signee must also be liable to this right of survivorship. But this right will not prevail against the assignment by the husband, by contract for a valuable consideration, of a particular chose in action of the wife, or of a specific part of her equitable property of that nature. For such an assignment is considered a complete disposition of that property, and is equivalent to reducing it into possession.’
“A particular instance of a distinction between an assignment of a general nature, and of a particular chose in action, is given in the case of Jewson v. Moulson, 2 Atk. 417. A wife being entitled under the will of her father to the fourth part of his personal estate, her husband made an assignment to his creditor of all the share which in right of his wife he was entitled to in her father’s personal estate. Per lord Hardwicke, ‘This is not an assignment of a term of years, or a specific thing, but an assignment at once for all her fortune ; and if I were to allow this practice to prevail, it would elude the care and caution of this court with respect to 351 infants; *'for a husband then would have nothing to do but take up the money of a third person, and though neither he nor the lender knew exactly at the time what the fortune is, yet he may assign it over, and so defeat the care of the court entirely.’
“In the case of Wiseman v. Mason, 1 P. Wms. 459; (Cox’s note,) and Pryor v. Hill, 4 Bro. C. C. 139, the assignments were general, and it was held that the wife was entitled to a provision. It is true the question of survivorship did not occur in those cases, the husbands being still in life and the coverture existing: but being on the ground that the assignees were placed in the same situation in which the husbands would have stood, it wóuld follow of course that the right of survivorship still existed.
“If therefore the distinction between a general and particular assignment does exist, and has the effect supposed, then the rule should be limited to cases of a general assignment. But if so, the right of mrs. Browning would not be affected by the limitation of the rule; for the assignment in this case is general, and almost in the very words of the assignment in the case of Jewson v. Moulson.
“These cases go strongly to sustain the correctness of the rule as to assignments of a general nature. As to the effect of an assignment of a particular chose in action for a valuable consideration, inasmuch as that question does not arise in this case, I shall express no decided opinion upon it. Upon the whole, I am of opinion that in this case the right survives to the wife; and consequently the bill must be dismissed.”
Willis Browning, by William Green esquire his counsel, presented a petition to the judges of this court for an appeal; from which petition the following is extracted :
“If it be conceded that the coverture was terminated by the divorce in question 352 as effectually as by death, '“'according to the judge’s opinion, (as to which, however, see Uottey’s case, Russ. & Ryan 237; Tovey v. Bindsay, 1 Dow’s R. 117; 2 Kent’s Comm. 99, 100,) and that the legal consequences of such a determination, in regard to the assignee’s rights, are the same as if the husband were dead, (against which, however, a great deal might be said; and see 1 Tucker’s Comm, book 1, p. 100,) still it does not follow that the as-signee has no right to recover any thing by virtue of the assignment. Yet that is the proposition necessarily involved in the dismission of the bill, and explicitly avowed by the judge. That the wife would be entitled to what is called her equity, that is, a settlement of some part of the property on her, according to the english authorities is clear; and at present it will not be controverted that she would be entitled to such a settlement in this case; although the supreme tribunal of this commonwealth has hitherto carefully avoided the adoption of those authorities. But still it does not follow that she is entitled, notwithstanding the assignment, to the whole subject in dispute. The judge himself admits, that in the cases upon which he relies, this question did not occur, because the coverture was in them still existing; but he supposes that the principles on which the wife’s equity was allowed in those cases, lead to the conclusion that if the husband had been dead, she would have been entitled to the whole by sur-vivorship. With submission, however, it would seem that there is a manifest fallacy in the argument. Numerous authorities shew that the assignee of a particular chose in action will prevail against the wife’s right by survivorship; while, on the other hand, as many cases shew that her equity for a settlement will prevail against him. But not to go into a discussion of elementary principles, which would be out of place here, the case of Earl of Salisbury v. Newton, Eden 370, is in effect precisely the same with this case. There, as here, the coverture was terminated: 353 *the .assignee brought his bill against the surviving wife and others, to recover the choses in action which had been assigned; and instead of the bill being dismissed, it was decreed that the wife should have a settlement out of the property, and that the balance of it should be paid to the plaintiff. A distinction was thus made between her equity and her right by survivorship, which completely *636answers the argument of the judge: the one prevailed and the other not, in one and the same case. And in other respects that case is also an authority in point. Whatever may be the distinction between a general and a particular assignment, the thing assigned in the present case was even less general in its character than in that of Earl of Salisbury v. Newton: for there the assignment was of all the wife’s interest in her father’s estate, which interest she might claim either under a deed or under a will, but not under both; and until accounts were taken, the election to take could not be determined. See also Jewson v. Moulson, cited from MS., 4 Ves. 524; Pur-dew v. Jackson, 1 Russ. 19, 20, and notes. The case of Green v. Otte, 1 Sim. & Stu. 250; 1 Cond. Eng. Ch. R. 125, appears to be a very strong authority against the claim of the wife to the whole, . in consequence of the termination of the coverture by the divorce.
“It should be also observed, that there is a distinction between choses in action that accrue to the feme before coverture, and such as accrue afterwards and during the coverture. Over the latter the husband has a greater power of control than over the former. See M’Neilage v. Holloway, 1 Barn. & Aid. 218, and the cases cited in it. And there is the less reason for denying the right of the assignee, when it is considered that the release of the husband alone might have effectually cut off the interest of the wife forever, if such a release had only been made before the divorce took effect. See Bac. Abr. title Re-354 lease, E. and cases *there cited. See also Taliaferro &c. v. Taliaferro &c., 4 Call 93.”
The appeal was allowed; and now the questions arising upon the record were fulljr argued.
Robinson for appellant.
The opinion of the circuit court affirms, that though the assignment was for a valuable consideration, and made at a time when the husband had the power to reduce the legacy to immediate possession, it cannot place the assignee in any better condition than the husband would himself have occupied if there had been no assignment. This proposition, though plausible, is not sound. The law has been settled otherwise for more than a hundred years. The leading case is Lord Carteret v. Paschal, decided as early as 1734, and reported in 3 P. Wms. 197, and 2 Brown’s Par. Cas. 10, (Tomlin’s edi.) which has been followed by Bates v. Dandy, reported in 2 Atk. 207, and noted also in 1 Russ. 33, — by the Earl of Salisbury v. Newton, 1 Eden 373, and Wright v. Morley, 11 Ves. 12. There is a class of cases which may be relied upon on the other side, to wit, Hornsby v. Lee, 2 Madd. C. R. 16, american edi. 352, and Purdew v. Japkson, 1 Russ. 1. These are cases of a reversionary interest, in which, at the time of the assignment, there was an incapacity to make an actual reduction into possession. We are told that when Hornsby v. Lee was decided, it was not acquiesced in, and was denied to be law. Clancy on Married Women 148; 1 Roper on Property 146. Sir Thomas Plumer, after reexamination in Purdew v.- Jackson, decided as before, against the assignee of the reversionary interest. But it has never jret been decided that a bona fide assignment • for valuable consideration, made by a husband to a third person, of a debt actually and presently due to the wife, does not divest in equity the title of the wife. This is the language of 355 *mr. justice Story on Cassell v. Carroll, 11 Wheat 152. Sir Thomas Plumer himself, in adverting to the decisions as to the effect of an assignment of a present interest, while he says, “If it were now a new point, it would be difficult to understand how the assignee could be in a better situation than the, husband himself,” admits that “it is too late to consider this;” for, says he, “it is decided that an assignment for valuable consideration, being a disposition of the property, is sufficient to bar the right of the wife surviving.” Johnson v. Johnson, 1 Jac. & Walk. 456. So the law is understood to be in England, by the writers who treat of the subject. 1 Roper 222; Clancy 121, 149. Purdew v. Jackson was decided after mr. Roper’s work was published. In this case also sir Thomas Plumer recognizes the distinction between the assignment of a present right, which he says may be regarded as a kind of constructive possession, and the assignment of a chose in action not then capable of being reduced into possession, which cannot be construed as a reduction of the thing into possession. 1 Russ. 45, 59, 60. Whatever may have been considered the law in Virginia as to the husband’s power to sell his wife’s reversionary interests,* there does not seem to have been any question as to his power to make an effectual sale or assignment of her present interests. Taliaferro &c. v. Taliaferro &c., 4 Call 93; Wallace & ux. v. Taliaferro & ux., 2 Call 447; Upshaw v. Upshaw &c., 2 Hen. & Munf. 389; 1 Tuck. Comm. 116. Chancellor Kent has examined the subject in Shuy'ler v. Hoyle, 5 Johns. Ch. Rep. 207, 210, and come to the conclusion that the husband may assign for a valuable consideration; and that the wife has 356 .no right by survivorship. There is, it is true, a material distinction between the case of assignees of a bankrupt or insolvent husband, taking his whole estate without reference particularly to the property of the wife, and the case of an assignment by the husband having refer*637ence particularly to the property of the wife, and being- of that property as distinguished from his. The last is a constructive reduction into possession; the former cannot be so considered. In the present case the assignment not only refers particularly to the wife’s property, but is of a specific portion of that property. It is a particular assignment, like those in Carteret v. Paschal, Bates v. Dandy, Earl of Salisbury v. Newton, and Wright v. Mor ley.
So far, the case has been considered upon the supposition that, by the divorce, the claim was placed on the same ground as if Joseph Browning had then died; and it has been shewn that even in that case the assignee for valuable consideration would have been entitled to the subject assigned, and not the wife who survived. But is it Clear that the divorce has the effect ascribed to it? The contract of marriage was made in Virginia: could it be dissolved by an act of Kentucky? If it could, on what ground could it be done? Is it that the parties had become domiciled in Kentucky? Can that ground be taken consistently with the reason assigned for the divorce, which is, that the husband had abandoned his wife, left the state, and gone to Virginia? The court will find the questions growing out of this state of facts to be full of difficulty. Story’s Conflict of Daws, ch. 7, p. 168; 2 Kent’s Comm. p. 106. They will find it doubtful, at least, whether it was competent to the legislature of Kentucky to pass any law affecting the rights of the husband, whose domicil was changed before the act passed. And accordingly the legislature of Kentucky seem to have desired not to exercise the jurisdiction as it respected him. The peculiar phrase-367 ology *of the act seems to indicate this. To understand this act, it will be proper to examine the provisions of the general act of Kentucky regulating divorces in that state; Statute Daw of Kentucky, vol. 1, p. 122. Here there was no such case as authorized the circuit courts to decree a divorce under that act: there was no abandonment for two years, nor was the treatment such as to endanger the wife’s life. Hence the wife applied to the legislature. When they interfered, it is not reasonable to suppose that they intended to grant a divorce of a stronger character than would have been granted by the courts, had they acted. And the divorce granted by the courts does not appear to be an absolute divorce a vinculo matrimo-nii. Moreover, this particular act of divorce declares her entitled, of the estate of Browning, to receive alimony agreeably to the laws of the commonwealth. What those laws are, will be found in the 1st volume of the statute law, p. 121. The decree for alimony seems there not to follow, but to precede a divorce a vinculo matrimonii; p. 122, $ 3. And this accords with the general principle, which is to allow alimony in case of a divorce a mensa et thoro, 1 Black. Comm. 441, 2; 1 Tuck. Comm. 98, but not in the case of a divorce a vinculo matrimonii. The doctrine of the liability of a husband to alimony rests on the presumption of law, that by marriage the property of the wife vests in the husband, and that she is possessed of no property of her own. Poynter on Marriage and Divorce, p. 259, 60. It does not apply to a divorce a vinculo matrimonii, where the wife receives again such of the personal property which she had at the time of the marriage, as may not have been disposed of by the husband. 1 Tuck. Comm. 98. This then ought not to be regarded as a divorce a vinculo matrimonii ; and if not so regarded, there is no foundation for the proposition that the choses in action, not reduced to possession before the divorce, are afterwards the property of the 358 *wife in like manner as if the husband had then died. For the divorce, to produce this consequence, must be a divorce a vinculo matrimonii. 1 Tuck. Comm. 978, “If a husband and wife are divorced a mensa et thoro, and a legacy is left to her, the husband may release it.” Bac. Abr. title Release, F. vol. 6, of Dond. edi. of 1832, p. 624. The decision in Green v. Otte, 1 Sim. & Stu. 250; 1 Cond. Eng. Ch. Rep. 125, is a direct adjudication in favour of the validity of an assignment even of a reversionary interest, where the tenant for life died before the divorce took place.
[Stanard, J. Supposing the assignment to be held valid, will there not be a resulting question as to the right of the wife to a provision?] Though the court should think the english doctrine on that subject ought to prevail here, it would not prevent a reversal of the decree; the effect would merely be to send back the cause for an enquiry to ascertain what would be a reasonable provision.
Patton for appellees.
It is not enough that there is a deed of assignment. The whole argument that the assignee stands in a better condition than the assignor, rests upon the ground that the assignment is for valuable consideration. And there is no proof of the fact that the assignment was for value, but ground to suspect it was. a mere contrivance. Great care has been taken to adduce witnesses to prove the execution of the deed, and not a word is asked as to its consideration. The deed itself is no proof of consideration as against the wife. Wilcox v. Pearman, 9 Deigh 144.
Upon the question as to the authority of Kentucky to grant a divorce, it is sufficient to refer to Story’s Conflict of Daws, p. 189-92, | 228, 229, 230. The court will see that in Scotland, Massachusetts and New York, it is held that the authority of that state in which the parties have been domiciled may grant a divorce to one 359 *party, no matter where the other is residing at the time. But it is argued, the divorce here is not a vinculo matrimonii. The marriage contract being *638forever dissolved as respects the feme, and she being restored to all the rights and privileges of an unmarried woman, the divorce must be a vinculo matrimonii as it regards her. Nor can the effect of this language be restrained or impaired by the clause allowing her alimony. In the general act of Kentucky regulating divorces, there is authority to make provision for the wife out of the husband’s estate; and this clause may fairly mean that such provision may be made for her. Neither should the construction of this act be affected by the use of the term alimony; for even though it be used elsewhere in reference to divorces a mensa et thoro, the legislature of Kentucky may use it in a way in which it has not been used before. Under the general act of Kentucky, the divorce is a complete divorce a vinculo matrimonii, except only that the other party cannot marry. Suppose mrs. Browning had died after the act of divorce, would Joseph Browning have had a right to administer on her estate? Surely not. It is equally plain that from the time of that act he was absolved from all obligation to pay her debts. 1 Tucker’s Comm. 98. She was also deprived of the right of dower or distribution in his estate. These propositions being unquestionable, does it not follow that the act of divorce is even more effectual than death would have been? Choses in action of the wife, not reduced into possession during the cover-ture, remain her property on the dissolution of the marriage. 1 Tuck. Comm. 100; Legg v. Legg, 8 Mass. R. 99; Lodge v. Hamilton, 2 Serg. & Rawle 491. And this principle applies in all cases of divorce a vinculo matrimonii, no matter what the ground of divorce. In this case, when the assignment was made, the husband had abandoned his wife. And there is no reason for restricting her to merely an equitable 360 provision. She *should be held entitled after such abandonment and such divorce, even if the assignee would have been entitled after the husband’s death.
But would the assignee have been entitled against the wife surviving? In the argument of Purdew v. Jackson, sir Thomas Plumer propounded this question to the counsel: “Is there any case in which, the husband having assigned the wife’s present chose in action, and having died before the assignee obtained possession of it, the assignee prevailed over the surviving wife?” and he added, “Suppose that in such a case the assignee were to claim the chose in action, in whose name would he make the claim, and in what form would he bring the action?” To this question counsel upon both sides answered, “We believe that such a case has not occurred.” 1 Russ. 19, 20. Here then was a call upon counsel for a case establishing the very proposition now contended for, and the distinguished counsel in that case (mr. Shad-well and mr. Sugden) admitted that no such case could be produced: yet now we are told that that proposition has been long established, and several cases are cited to shew it. Do they shew any such thing? Dicta undoubtedly there are in abundance; but are there any well considered decisions upon the point? If Lord Carteret v. Paschal is an authority upon this question, it proves too much; for there the surplus was taken away, as to which the assignment was only voluntary. But the real import of the decision is, that it was a case of an equitable extent; that the husband and wife were in possession. It was like the case of a term of years, which stands upon different ground from ordinary choses in action of the wife. And so as to Bates v. Dandy : that was a case of mortgages, one of which was of a term; between an assignment of which, and of choses in action generally, there is a distinction. The term stands upon the footing of personal chattels reduced into possession during 361 the coverture. There was, ^besides, an agreement in Bates v. Dandy that the husband should have an interest in the subject. Something, it is true, is said about the husband’s right to assign his wife’s chose in action as well as her term, so that it be for valuable consideration; but what is said as to this matter is evidently a loose and ill considered opinion. In a note in 1 Russ. 20, in relation to the question pro ounded by sir Thomas Plumer, the reporter does not cite either of those as cases meeting the question; the only case which he mentions is Earl of Salisbury v. Newton. This case is briefly reported, appears to have been but little considered, and the decision in it does not well accord with the first part of the opinion. The other english case relied upon on the other side (Wright v. Morley) was the case of an assignment sought to be enforced during the life of the husband. The husband during his lifetime had a right to recover the property against the wife. It is impossible, then, to regard the law as settled by the english cases. When sir Thomas Plumer said in Johnson v. Johnson, that the question was decided, he had not then examined it with the care which he after-wards bestowed upon it in Purdew v. Jackson. In this last case he shews, by an examination of all the authorities, that there had been no such decision ; and shews also that in his opinion there was no difference between the assignment of a present and of a reversionary interest. There is certainly no decision on the question in Virginia. This court is now to settle the law in reference to the matter; and it should make such a decision as may be consistent with what has been decided. The general rule is, that the husband is entitled to his wife's choses in action, provided he reduces them into -possession during the coverture: in regard to all not reduced into possession, the right of the wife is the same as if she had not been married. And Purdew v. Jackson may properly be referred to for a principle equally applicable to a present as to 362 a reversionary ^interest; it is, that the assignee can have no better right *639than the assignor. If this be so, and the whole right of the husband be a right to reduce into possession during the cover-ture, how can the assignee acquire any thing more than a right to reduce into possession, if he can, during that time? It is said in some of the cases, or some of the books, that the husband may release, and therefore he may assign; that he may destroy, and therefore he may preserve. But the ground of the husband's right to release is, that he has the right to receive. Between the right to release and the right to assign, there is a want of analogy in several respects. In the former case there is no equitable right to a provision: in the latter there is. The husband could not assign a possibility, but he might release it. Gage v. Acton, 1 Salk 327. If he may release a possibility but not assign it, why may he not release a right not reduced into possession, and yet not be able to make an effectual assignment of it? It is impossible, by any sound and consistent reasoning, to arrive at the conclusion that the right to release gives the right 'to assign. If it does, why does it not give the right to assign without value, as well as with value? why does it not confer a right upon a general, as well as upon a special assignee? The release being the exercise of a legal right, there can be no doubt that it will operate at law, and extinguish the right, whether with or without consideration. But the assignment confers no legal right; it can only be enforced in equity. And when attempted to be enforced in equity, it is a mere equity against an equity with better legal right. There is something plausible in the idea that the assignment of the wife’s property is a constructive possession, or the commencement of a taking possession. But the answer is, that a commencement is not enough. There is no right unless the husband does reduce into possession. He may commence a suit, but if he dies before obtaining a de-363 cree, x'the commencement of the suit will add nothing to his rights. Moreover, if the assignment were equivalent to a reduction into possession, the wife would have no right against the as-signee to an equitable provision: but this right she unquestionably has. The case of Earl of Salisbury v. Newton not only shews its existence, but shews that it exists as well against a particular as against a general assignee. If the right to a provision exists against the former as well as the latter, why shall there be a distinction between the two in regard to the wife’s right by survivorship? In concluding upon this question, the attention of the court is called to Mitford v. Mitford, 9 Ves. 87, which contains a valuable review of the authorities ; to the early cases of Burnett v. Kinaston, Prec. in Ch. 119, 121; S. C. 2 Vern. 401; S. C. Freeman’s Ch. Cas. 240; Packer v. Windham, Prec. in Ch. 412; Becket v. Becket, 1 Dick 340, and to Ward on Legacies, p. 280, which is against the proposition contended for on the other side.
There is, however, no necessity for the court to decide the question in this case, which is different in circumstances and different' in principle from the cases in which it must ordinarily arise. If there be any foundation for the doctrine contended for as to the validity of a particular assignment, it is that the wife has got the benefit of the consideration. And here that reason cannot apply, because the wife had been abandoned before the assignment was made. But 2dly, if the rule be established, there can no doubt that it is limited to the case of the assignee of a particular subject. Where the assignment is a general assignment of the wife’s interests, (which is the character of the assignment here) the assignee takes subject to her right by survivorship, as well as her equity. Jewson v. Moulson, 2 Atk. 417; Pryor v. Hill, 4 Brown’s C. JR. 139; Macaulay v. Phillips, 4 Ves. 19; Newland on Contracts 136; 2 Tuck. Com. 115, 16. 364 In Jewson v. Moulson it was*argued that the assignment was special, and that the special assignee was not subject to the wife’s equity; but the assignment was held to be a general assignment. The case of Earl of Salisbury v. Newton is open to the remark, that the wife had in fact no interest except the particular subject which was in controversy there. And 3dly, the decree was right in dismissing the bill, because, in any aspect, the wife is entitled to a provision, and the whole value of the subject assigned would be an inadequate provision for her. No person can doubt that her interest in her father’s property was her whole estate. There is no proof, it is true, of the value of this interest, except the consideration expressed in the deed of assignment. But the other side must admit the assignment to have been for adequate consideration. Suppose, however, that the interest, instead of being only of the value of 1500 dollars, was worth 3000 dollars; would a provision to that amount be more than adequate for her? The following cases relate to this subject: in some of them, the court will find it to have been decided that the wife should have the whole property. Ex parte Coysegame, 1 Atk. 192; Like v. Beresford, 3 Ves. 506; Elliott v. Cordell & others, 5 Madd. C. R. 96, american edi. 150; Kenny v. Udall &c., 5 Johns. Ch. Rep. 464; Udall v. Kenny, 3 Cowen 590; Haviland v. Bloom &c., 6 Johns. Ch. Rep. 178; Smith and others v. Kane and wife, 2 Paige 303; Van Epps and wife v. Van Deusen, 4 Paige 64.
Robinson in reply.
The bill alleges that the assignment was in consideration of the sum of 1500 dollars; the answers do not controvert the fact of consideration; and the deed of assignment purports on its face to be in consideration of 1500 dollars in hand paid. The case is in principle like that of Scott & wife &c. v. Gibbon & Co. &c., 5 Munf. 86. It is needless to en-quire whether, if the answers had de-365 nied the consideration and *called for *640proof of it, the onus would have been on the assignee: it is enough that there has been no such denial or call for proof. In the absence of it, the deed is prima facie evidence of the allegation in the bill. The cause, moreover, has been proceeded in to a hearing upon the supposition that there was consideration, and the decision of the circuit court is on this supposition.
It is argued that the act of Kentucky is such a divorce a vinculo matrimonii, as entitles the wife to her personal estate not previously reduced into possession by the husband. Can it be regarded as importing this, when it entitles the wife to receive alimony? It is supposed that 4 7, p. 123, (of 1 Statute Laws of Kentucky) may have been in the view of the lawmakers; a section giving power to divide the estate. But that can scarcely have been the meaning of the legislature; for that power is confined to the court which pronounces the decree of divorce. It is supposed, also, that the legislature' has used the word in a sense different from that in which it is ordinarily used. But when they use it in this act, we must suppose it is in the sense in which it is used by them in other acts. And when we look to those other acts, we find no instance of alimony after a divorce a vinculo matrimonii. It is asked whether, if mrs. Browning had died after the act of divorce, Joseph Browning would have had a right to administer? This is but another form of stating the proposition. If there were no valid divorce a vinculo matrimonii, the case of Elliott &c. v. Gurr, 2 Phil. 16; 1 Eng. Eccl. Rep. 166, shews that a decree of divorce which was invalid would not prevent his administering. And a decree though valid, which was not a complete divorce a vinculo matrimonii, would be attended with the same consequence. So also the husband’s obligation to pay the debts of the wife, and her right to alimony in his lifetime or to dower or distribution afterwards, depend on the same considerations. The court should hesitate to 366 place an interpretation *upon the act which would deprive her of these rights, when there is ground to doubt whether such interpretation will be in accordance with the intention of the legislature. Though the ill treatment of the wife properly entitled her to a 'divorce a mensa et thoro only, still the legislature of Kentucky might allow her to marry again in Kentucky if they pleased, and such may have been their intention. But will it follow that there is suph a divorce a vinculo matrimonii as is necessary here? It is laid down in 2 Burn’s Eccl. Law S03, that divers acts of parliament for the divorce of particular persons in the case of adultery have allowed a liberty to the innocent person of marrying again. But on the same page of Burn (or rather 502 d.) it is laid down, that as to the having again the goods she brought, or so much as is not spent, that in the law books is meant only of divorce a vinculo, or where there was a nullity of marriage. No one supposes that this act of Kentucky ascertains that there was really no valid marriage; that it was null ab initio; that the children of the marriage are bastards. And such an interpretation should be placed upon the act as will avoid these consequences.
But suppose the feme here entitled to all that the most complete divorce a vinculo matrimonii can give; what then are her rights? As to the idea that they are any greater against the assignee than would result from a dissolution by death, it will suffice to say that there is not the least foundation for it.
What then would be the feme’s rights if the husband had died at the time of the act of divorce? If all that has been said on this subject were mere dicta, yet such and so many dicta, regarded as law for 100 years both in England and this country, and hitherto acted upon as such, would present reasons of the most cogent character against establishing a different doctrine now. But is there nothing but dicta? 367 It is conceded that *there is one decision, the case of Earl of Salisbury v. Newton; but that case, it is said, was but little considered. If the question was but little considered in that case, it was because there was no occasion to consider it, —because it had been most maturely considered and definitively adjudged in the two previous cases of Lord Carteret v. Paschal and Bates v. Dandy; In 3 Russ. 70, 3 Cond. Eng. Ch. Rep. 301, the court will find at large lord Hardwicke’s opinion in Bates v. Dandy, which shews that in Lord Carteret v. Paschal, as well as in Bates v. Dandy, the precise point which we are now arguing was distinctly made, the very authorities of Burnett v. Kinaston and Packer v. Windham, which mr. Patton now cites, were then cited and examined, and the point was distinctly adjudged in direct opposition to what he is now contending for. It is then an assumption to say that the whole right of the assignee of a husband to the wife’s personalty, is to such personalty as may have been reduced into actual possession during the coverture. The same authority which might establish, as a general proposition, that the surviving wife had a right to whatever had not been reduced into actual possession during the coverture, might equally establish, as a modification of that proposition, that the right of the wife was gone where the husband had made an assignment for value. The law is the authority which has established the former as well as the latter. And this law has been adjudged, promulgated and acted upon for more than 100 years. No matter what may be the reason of the rule; whether it be founded upon the idea that the husband might release and therefore may assign; or upon the idea that the assignment is the commencement of a reduction into possession ; or upon the idea that the assignment imports an agreement to reduce into possession, and equity considers that as done which ought to be done; either way, it is enough *641368 that the rule is ^'established. It cannot be material now to notice particularly the authorities cited on the other side; the cases of Burnett v. Kinaston and Packer v. Windham, examined, by lord Hardwicke 100 years ago, and found inapplicable ; the case of Becket v. Becket, which was not an assignment for valuable consideration, but merely for love and affection ; and the case of Purdew v. Jackson, a case of assignment of a reversionary-interest, decided by sir Thomas Plumer, who considers it too late to question now the right of the assignee of a present interest for value. It is said, he made this remark before he examined the subject in Purdew v. Jackson. But he had before examined it in Hornsby v. Bee. And even in Purdew v. Jackson he admits that an assignment of a present interest may be regarded as the commencement of a reduction into possession. But since Purdew v. Jackson was decided, and with all the lights afforded by that case, a higher authority than sir Thomas Plumer, the lord chancellor himself (lord Byndhurst), while affirming the doctrine of Purdew v. Jackson, has declared the law to be settled as it regards the assignment of a present interest. Honner v. Morton, 3 Russ. 65; 3 Cond. Eng. Ch. Rep. 298.
Upon the question whether this is such an assignment of the wife’s property as entitles the assignee against the wife when claiming by survivorship, nothing need be added to the cases already cited, some of which were more general than this.
The english cases as to the wife’s equity against the assignee to a provision will be found collected in 1 Roper 266. The doctrine has never yet been established in Virginia. Gregory’s adm’r v. Marks’s adm’r, 1 Rand. 372, 385; 1 Tucker’s Comm. 114. And the court must consider whether it ought to be. But that doctrine, if established, will not sustain the decree dismissing the bill. As before remarked, all that could be done would be to direct 369 an enquiry to ascertain *what would be a suitable provision. Reliance is placed on a remark of chancellor Kent in Haviland v. Myers, 6 Johns. Ch. Rep. 25, that the equity might be extended, if circumstances should require it, to the whole of the estate. But did chancellor Kent so extend it without any enquiry? Not at all. All that he did was to overrule the motion to dissolve the injunction, and let the cause proceed. We do not know whether the wife may not have other property of her own. To the extent of that, regard is always had. Bady Elibank v. Montolieu, 5 Ves. 744; Green v. Otte, 1 Sim. & Stu. 250; 1 Cond. Eng. Ch. Rep. 125. Neither are we informed as to the value of the interest assigned. There may have been a considerable estate besides slaves; and the will and the executor’s answer shew that in fact there was. To give the assignee title, it is enough that he is an assignee for valuable consideration: we have no question in the pleadings, or in the cause, as to the sufficiency of the consideration. The interest assigned may be of much greater value than 1500 dollars, double, treble, or quadruple; yet the court must hold the assignment valid. The court can with no propriety determine, upon the case as it stands, what wculd be a suitable provision: with still less propriety would it determine that a suitable portion of the property is the whole. [Baldwin, J. Does not the fact of the husband’s abandoning his wife make a difference? Must she then be restricted merely to a portion?] It was argued by mr. Patton that the wife here should have the whole, because the husband had abandoned her. But that circumstance does not change the principle, which is simply that the wife shall have a reasonable provision out of the subject. The very terms of the rule indicate that she is only to have part of the subject. In Wright v. Morley, 11 Ves. 12, as well as in this case, the husband had abandoned his wife, and the whole fund there was 260 pounds 370 a year; yet it was *said that the as-signee would deal fairly towards the wife, if, out of the 260 pounds, he allowed her 100 pounds.