2 Brock. 285 | U.S. Circuit Court for the District of Virginia | 1826
The plaintiff, who resides in Spain, claims a legacy bequeathed to her by Joseph Gallego, deceased. The executor admits assets, and submits the question to the court, whether the plaintiff, as a married woman, can properly demand this legaey? The demand is supported by an instrument of writing, executed by the husband, in which he transfers all his marital rights in this legacy to his wife, and gives her lull authority to receive it. Under these circumstances, the course of a court of equity is, to sustain the bill of a married woman, brought by her next friend, and to decree that the legacy shall be paid to herself. But, admitting her right to sue, the executor contends that her husband was indebted to his testator, and that this debt ought to be deducted from the legacy. He also says, that a creditor of the husband has attached a part of this money in his hands in the court of the state, and he submits it to the court to say, whether he is not bound to retain a sum sufficient to answer this demand?
This defence makes it necessary to inquire into the right of the husband to a legacy bequeathed to his wife, and into the rights of the creditors of the husband to such legacy. The common law of England identifies the wife so entirely with her husband, as scarcely to tolerate the idea of her separate existence while they live together. She cannot acquire personal property by a direct conveyance to herself. Her interest is, by act of law, almost in every instance, transferred to her husband, and becomes vested in her. But this rule does not apply to personal estate to which a female is entitled before marriage, and which has not been reduced to possession. This remains her property, and does not vest in the husband by the marriage. The marital right does not extend to the property while a chose in action, but enables the husband to reduce it to possession. and thereby acquire it. The property becomes his, not upon the marriage, but upon the fact of his obtaining possession. The right of the legatee does not originate in the common law. and is not governed by the old rule, which disables the wife from taking for her own benefit. It is a right which cannot be asserted at common law, and can be sustained only in a court of equity. The personal estate of the testator vests in the executor for the payment of debts, who is a trustee for the legatee, after the primary trust for creditors shall be satisfied. As courts of equity grew up under the control of civilians, they have adopted the principles of the civil law, which views the rights of married women with much more liberality than the common law. legacies, therefore, bequeathed to a married woman, have never been classed with conveyances at common law, but with choses in action, and vest an equity in the wife herself, in which the husband participates, so far only, as to assert her title in a court of equity. The property does not become his, nor is it subject to the liabilities which attach to that which is his, until it shall be reduced to possession. Till then, his creditors have no claim to it If he dies, living the wife, before reducing it to possession, his power is not transmissible to his representatives, but dies with him. Since the claim of the creditor extends only to the property of the debtor, it cannot reach a legacy until it becomes his property. It follows, then, not only because mere rights cannot be taken in execution without the aid of some special legislative provision, but because,, also. there is no title in the husband to the thing itself, that a legacy not reduced to possession, is not liable for his debts. Can a court of equity subject it to them?
The books furnish no case in which tiffs naked question has been brought before the court. This is, of itself, a strong, we think, conclusive argument, against the right. That a creditor has never applied to a court of chancery to interpose in his favour, and subject the choses in action, or the equitable rights of the wife, to his claim against the husband, demonstrates the universality of the opinion, that equity affords no aid in such a case. It is true, that the assignees of a bankrupt are permitted to assert this right. But it is equally true, that they represent the bankrupt, as well as his creditors, and that all the marital rights of the husband are transferred to them. ’When they come into a court of equity, asserting a claim on the equitable interests of the wife, thej' exercise the marital right to reduce those interests to possession, not any pre-existing right of the creditors. In such a case, the court grants its aid. on such conditions as its own rules prescribe, and will never permit the husband, or his assignees, to receive the property of the wife, but on such terms, on making out of it for herself and children such provision, as. on a view of all the circumstances of the case, may be deemed equitable. This uniform course of a court of equity, would be incompatible with a previously existing right in The creditors. This rulo has never been recognized, so far as we
What are those circumstances? In August, 1814, Henry Newman, the husband of the plaintiff, drew bills on Joseph Gallego, the testator, for 82000. and at the same time, addressed a ''etter to him, soliciting his acceptance of them, and promising repayment. These bills, with the letter of Mr. Newman, were presented to Mr. Gallego, in Baltimore, in June, 1815, who accepted them, and made arrangements for their payment in Richmond. He communicated the transaction to Mr. Poiton, his jiartncr in this place, in a letter which contains this sentence: “Be so good as to debit Mr. Henry Newman, senior, to notes payable, for the sake of form, and that the amount may appear against him or his heirs, when I am no more, to be deducted out of the share coming to the family.” It also appears, that this debt was charged to Newman on the books of the testator, and remained on his books till his death. His will was made in the year, ISIS. Some objection was made to the admission of the letter from Mr. Gallego to Mr. Poiton, the plaintiff considering it as irrelevant, since parol and extrinsic testimony, cannot affect the construction of a will. It is undoubtedly true, that this letter cannot affect the construction of the will, nor does the court look into it with that view. If it has any bearing on the question under consideration, it is on an entirely distinct part of it.
Although the legacy given to the wife does not become the property of the husband, unless reduced to possession, yet he has a right to reduce it to possession, and may demand the aid of a court of equity for that purpose, which aid will be furnished as of course, unless the court be restrained from affording it, by considerations which are never disregarded. These considerations are extrinsic of the will, and depend on parol testimony. Such testimony must be admitted for this purpose. In cases where the husband does not voluntarily relinquish his claim to a legacy bequeathed to his wife, but asserts that claim in equity, if a distinct claim be also asserted for the wife, the court does not, as a matter of course, settle the whole on the wife as her separate property, but secures the whole, or part of it to her. according to circumstances. Where, as in this case, the husband voluntarily relinquishes his marital rights, the court, will, undoubtedly, sustain that relinquishment, unless it be made in fraud of the rights of others.
In this case, there is reason to believe, that the husband is insolvent, and that he has relinquished to his wife that she may receive and enjoy the legacy bequeathed to her. secured from his creditors. In this, there is no injustice; his creditors trusted to his own resources for payment of their claims, and had no right to count on the fortune of Mr Gallego. Creditors, generally, therefore, cannot compel him to reduce the legacy of his wife to possession for their benefit: but. the application of this rule to a creditor, who is
The court does not perceive in the case, any satisfactory evidence that equity ought to restrain the full operation of the instrument by which Henry Newman relinquishes his marital right in this legacy to his wife, and is, therefore, of opinion, that it ought to be allowed its full effect.
The English books abound with cases establishing this rule of equity, and the principle has very generally been adopted in this country. See Ex parte Beresford. 1 Desaus. Eq. 263; Howard v. Moffatt. 2 Johns. Ch. 206; Glenn v. Fisher, C Johns.. Ch. 33; Kenny v. Udall, 5 Johns. Ch. 464: Udell v. Kenney. 3 Cow. 606; Fabre v. Colden. 1 Paige, 166: Carter v. Carter, Id. 463; Mumford v. Murray, Id. 620; Smith v. Kane, 2 Paige. 303. This rule is adverted to and commented on by Green, J., in Gregory’s Adm’r v. Marks’ Adm’r, 1 Rand. (Va.) 372.
Adams v. Peirce, 3 P. Wms. 11.
2 Atk. 510.