Udall v. Kenney

3 Cow. 590 | N.Y. Sup. Ct. | 1824

Savage, Ch. J.

On the 21si of June, 1814, Thomas Hewitt, of the city of New-Yorfc, being possessed of 310 shares in the capital stock of the Bank of America, executed a deed of settlement, by which, among other things, he transferred all his shares in the Bank of America, to the president, directors and company of that bank, in trust for the uses and purposes in the deed expressed; one of which is as follows: “In further trust to pay my daughter Eliza the interest or dividends accruing on eight thousand dollars of the said stock or shares, as the same accrues, for her education; and to transfer the principal thereof to her, at the age of 21 years.” “If my said daughter Eliza dies under 21, and without issue, then the principal to go to my said son Thomas.'1'1 It was also further provided, that if the bank should be about to be dissolved, then they should transfer the shares to Jonathan Burrall, Henry Remson and Richard Riker, to. hold upon the same trusts. Thomas Hewitt died on the 12th of October, 1814, leaving the deed of settlement in full force, Sidney Hewitt, the mother of Eliza, was appointed, by the Court of Chancery, guardian of her person, and Istias. L. Kip, Assistant Register, her trustee to receive the dividends and pay them over to. Sidney Hewitt the guardian, Mrs. Kenney supposes she was, therefore, a tyard of the. Court of Chancery. On the 19/A of January, 18 I S,, Eliza intermarried with her present husband, Edward M. Kenney. She was then a little over 16 yea,rs of age, and wa,s at a boarding school, where she had been placed by her mother. Sidney Hewitt, the mother and guardian, had beep applied to for her consent to the marriage, but she refused it except on condition that it should be postponed for two years, Upon the marriage taking place the guardian was displeased, but became reconciled in about a week,

Statement of the case

Deed of settV3ment:

trustee. ^

Marriage.

Order^topay jfenney.

Pledge of the stock.

()n the 9th of February following, Kenney was authorized by a rule of Court, founded on and reciting the marriage, to receive the dividends until the further order of the Court; and, by virtue of this order, he did receive one or more dividends, He became much embarrassed, and proposed to, pledge or sell the stock. One Ezra L. Ingraham offered his services in effecting some negotiation, with a view to raise money. The appellant, Udall, became the purchaser, for the nominal price of $5000, under circumstances which I shall hereafter advert to, a.nd took an assignment, dated the 12ZA of December, 18-18, executed by Kenney and his wife, who was still an infant; and paid, as.he alleges, $4500. Mrs, Kenney avers that only $ 150 were applied to her use.

Order to pay-dividends muii to

On the 17/A of June, 1819, an order was granted, founded upon the sale to Udall, directing the dividends after the lsf> of January, 1819, to be paid to him until Mrs. Kenney should arrive to the age of 21, or the further order of the Court.

Bill.

On, the 11 th of- November, 1820, she filed her bill, praying : 1. Thgt the assignment to Udall might be declared null and void, as respects her individual rights to, the stock, and that Udall might assign it to some proper person, as trustee for her: 2. That he might account for the dividends received by him : 3. That an order might be made, revoking the order of the nth of June, 1819 : 4. For such disposition of' íhe stock as would secure it for her own support and maintenance, and place it beyond the control of her husband.

Decree.

On the Wth of Jhxgust, 1821, the Chancellor declared the assignment to be void, as respected Mrs. Kenney’s rights ; rescinded the former orders-for paying dividends to Kenney and TJdall respectively ; directed payment to Mrs. Kenney’s solicitor, to the amount of the costs, and then to Mrs. Kenney herself; directed the bank not to permit a transfer of the shares ; and leaving Mrs. Kenney, when 21 years of age, to apply for the stock, or so much as justice shall require, to be settled for her separate use and support. To reverse this decree is the object of the present appeal.

The determination of this cause, independent of the fair-1 ness or unfairness of the transaction, must depend upon the extent of the marital rights. The signature of the wife to the Assignment gave it no additional validity. She was, on account of her infancy; incapable of doing any act, disposing of her property, or dispensing with her rights ; and, on ac- ,, , . , , , , count of her coverture, she is presumed to have acted under the coercion of her husband. The assignment, therefore, must be considered as the act of the husband alone.

Cause depends °n extent of marital rights.

ass;„n, ment by the T°ldSo, by reason 0f her coverture‘

The interest of the husband was acquired by virtue of the. marriage.

_ lt is not disputed, that a husband, in virtue of his marriage, becomes absolute owner of the goods and chattels of his wife ; and may, consequently, dispose of them, not only her choses in possession, but in action, when the latter are reduced into possession. And the authorities go 1 e ° so far as to say, that if the husband can obtain possession of the wife’s choses in action, without the aid of a Court of Chancery, he will be permitted to do so; and then to dispose of them at his discretion. But where the property of the wife is under the care of the Court, and the husband cannot enjoy it without the authority of the Court, care will be taken that before it is placed at the husband’s disposal a suitable provision shall be made out of it for the wife’s support.

Husband becomes absowife’s°W choses possession. choses in act,10D’ ™hen reducedmto possession.

ifAhe ’ can™Sta™ possession aid of chance-he cannot be restrained as to the dispooMhenf. Bat if other-will’see that a.s?ltab?e Bro7 vision is first made for the wife.

That the general assignees of the husband stand in no better situation than the husband himself, admits of no dispute. r But the cases are not perfectly agreed as to the situation of an assignee of a specific chose in action, or an assignee fop valuable consideration. A concise review of the decisions will, therefore, be of service, in arriving at a correct conclusion.

Review of cases.

Sir Edward Turner's case, 1 Vern. 7, A. D. 168].

it was determined by the Lords, in Sir Edward Turner’s case, (l Vern. 7) on appeal from Chancery, that a term assigned in trust for a feme sole, might be disposed of by the husband after marriage ; but if it had been assigned for the use of the wife, by consent of the husband, then he could not meddle.

Pitt v. Hunt, 1 Vern. 18.

In Pitt v. Hunt, (1 Vern. 18) Chancellor Nottingham decreed according to this case, though contrary to all previous adjudications, and so admitted by the counsel.

Tudor v. Samyne, 2 Vern. 270, A. D. 1692.

jn Tudor v. Sdmyne, (2 Vern. 270) the samé doctrine , . „ _¡ was held, upon the authority of Turner’s case.

Jacobson v. Williams, 1 P. Wins. 382, A. D. 1717.

In Jacobson v. Williams, (1 P. Wms. 382) before Lord Chancellor Cowper, an infant, entitled to a legacy of £1000, intermarried with /, S. at 18 years of age, without the knowledge or consent of her father. J. S. becoming a bankrupt, the plaintiffs claimed the legacy as assignees. This claim was denied as to the principal sum, upon the ground that they stood in no better situation than the bankrupt himself, to whom the Court would not have allowed it without a provision for the wife and children. For the same reason, it was said, the assignees had a right to the interest during the husband’s life. But, at a subsequent day, the Chancellor dismissed the bill, upon the ground that the legacy depending on a contingency which had not ceased when the assignment was executed by the commissioners, therefore nothing passed, not even the interest.

Bosvil v. Brander, 1 P. Wms. 458, A. D. 1718.

In Bosvil v. Brander, (1 P. Wms. 458) a feme sole, mortgagee3 married a tradesman who became a bankrupt, and the commissioners assigned all his estate, real and personal. Then the husband died, and his widow filed her bill to have the benefit of the mortgage. But the Master of the Rolls decreed against her, on the ground that, as there was a covenant to pay the money, the legal estate was vested in the assignees. It was said, however, that if the husband or the assignees had asked the aid of Equity, to enforce the mortgage, the Court would have refused this, unless some provision had been made for the wife.

In Duke of Chandas v. Talbot, (2 P. Wms. 608) before King, Ch. the question was, whether a legacy of £1000, given to Dorothy Doliman, payablé at her age of 25 years, and assigned by her and her husband for £750, before she be-r , , , .. , i came oí age, was a good assignment; and it was decided that, being a personal thing, the husband alone might assign it, and as'to its being a contingency, that was nd objection, for the possibility of a term might be assigned by the husband alone ; and Theobalds v. Duffoy, (9 Mod. 102) was cited.

Duke of Chandos v. Talbot, 2 P. Wins 608, A. D. 1731.

In Bates v. Dandy, (2 Atk. 207) the husband had borrowed money, and pledged two mortgages, to which his wife had an equitable title, and promised in writing to assign them as security. But dying without having made the assignment, Lord Hardwicke held, that the husband’s promise to assign amounted, in equity, to an assignment pro tanto, the residue belonging to the wife. And it is then declared, that the husband may assign the wife’s chose in action, or a possibility that the wife is entitled to, as well as her term, if the assignment be for valuable consideration.

Bates v. Danly, 2 Atk. 207. A. D. 1741

In little more than a year afterwards, came the case of Jewson v. Moulson, (2 Atk. 417) which has been fully stated by his Honor the Chancellor, in his opinion. The husband assigned to the defendant, for an honest debt, the share of his wife in her father’s estate, which depended on the contingency of her arriving at 21 years of age. He afterwards assigned the same to trustees, for the benefit of all his creditors. Lord Hardwicke said, that the equity was extremely plain against the husband and his general assignees ; that the Court will not suffer the husband to take the wife’s portion, till he makes a reasonable provision for her ; and he dates this doctrine as far back as the 14Z/t of Charles the first. He further remarked, that if the husband could obtain possession of his wife’s chattels without the aid of the Court, he knew of no instance in which it had interfered ; but he expressed a doubt whether an injunction would not be granted, at the wife’s request, to stay execution till provision be made for her. He then refers to several previous cases, and mentions Tudor v. Samyne, Bosvill v. Brander, and Bates v. Dandy, in wb/ch, he observes, the assignee for valuable consideration had got the better of the wife’s equity. The circumstances of the case were much relied on, the wife’s infancy ; that the assignment was not of a particular thing, but her whole fortune ; .the clause of survivorship ; the requisite aid of the Court to obtain possession of her fortune ; and the presumed knowledge of Moulson, the creditor of all these facts, as wellas of the rule in Equity as to making provision for the wife out of her own fortune. He lays great weight upon several Lets which were parallel wilh those in this case—that the wife’s whole fortune was assigned—that the husband was in debt before he married—ran away with his wife clandestinely. And he says, if an assignee for valuable consideration is to be protected, all the care and guardianship which the Court extends to infants would be entirely defeated. He, therefore, determined not to allow the whole to the creditor, without making provision for the wife. The parties settled, by dividing the fund, and Lord Hardwicks confirmed the agreement.

Jewson v. Moulson. 2 Atk. 414, A. D. 1742.

In these cases the doctrine is, that when the husband or his assignees come into Equity to obtain possession of the wife’s dioses in action, the Court will compel (hem to do equity. It seems, however, that if the wife’s fortune is the subject of equitable cognizance, it is immaterial, in this view, who asks the aid of the Court. The same consequences follow, in whatever shape the matter is brought forward. Accordingly, in Grey v. Kentish, (1 Atk. 280 ; 1 P. Wms. 459, n. S. C. corrected) the wife’s property was, by a decree of Chancery, vested in South Sea annuities. The husband assigned it as security for £(50, and became bankrupt. The wife petitioned that the annuities might be transferred to her. Lord Hardzoicke said, that a husband cannot assign a possibility in law, but Equity will support such an assignment for valuable consideration. This was not an assignment, but a pledge, and as the particular and general assignees took with notice of the equity of the wife, it was decreed to her.

In Saddinglon v. Kinsman, (1 Br. Ch. Cas. 51-2) Lord Thnrlow said, that in the case of an assignment for valuable consideration, no provision is made for the wife ; but the cause was never decided. He referred to Gayer v. Wilkinson., (1 Br. C. C. 50, note) which denied that a wife’s equity passed by a bankrupt assignment, and asked the counsel whether they knew of any case in point which contradicted it?

Saddington v. Kinsman, 1 Br. Ch. Cas. 51-2, A. D. 1779.

In Worrall v. Marlar, and Bushnan v. Pell, (1 P. Wms. 459, note) Sarah Worrall, the wife of an insolvent debtor, was entitled, by bond from her father, to a share of his estate. The father, by will, after the insolvency of her husband, gave her £8000, in lieu of her claim by virtue of the bond. She filed her bill, praying that the £8000 might be settled upon her, to her separate use, and the use of her children. Bitshnan, her husband’s assignee, filed his bill, praying for an account under the bond, and to elect as the husband might if he had not become insolvent. Lord Thurlow was clearly of opinion, that the interest of the wife was assignable, but that the claim of the creditors extended only to the interest taken under the bond ; and as to that under the will, the assignee should make proposals for a settlement on the wife and children. His Lordship added, that he had considered the several cases on the subject, and did not find it any where decided, that if the husband make an actual assignment, by contract, for a valuable consideration, the assignee should be bound to make any provision for the wife out of the property assigned ; but that a Court of Equity has much greater consideration for an assignment actually made by contract, than for an assignment by mere operation of law. In the latter case, the creditor stood in the place of the husband, as respects the wife’s equity. After proposals had been made, one half the amount due on the bond was decreed to the creditors, and the res. idue of the £8000 to the wife.

Worrall v, ^^hnan °v? Pefh p• 4, ¿. x784. 5

It will be seen, that the decision of this case did not require the observations of Lord Thurlow, relative to assignees for valuable consideration. What be said on that subject was, therefore, altogether obiter• At all events, he was mistaken in supposing that there were no cases establishing thg wifels equity, as against assignees for valuable consideration. There is a short note of this case in 2 Dick. 647, under title of Worsal v. Marlar.

Many cases dedaring wife s equity, as aia™qcited1 by respondent’s' s- ? *.uP.r9\

The doctrine of the wife’s equity will be found distinctly * . 1 J •'* declared, as against the husband, in a great number of cases, c'^e4 4y the counsel for the respondent; but it cannot be necessary even to name them. here. The cases already com|pented on, leave no doubt as to the doctrine and practice of the Court to sustain the wife’s equity against her husband, his assignees by operation of law, and his voluntary assignees. And the only question in the case is as to an assignee for valuable consideration.

Gayner v. Wilkinson, 2 Dick. 491, A. D. 1783.

Gayner v. Wilkinson, (2 Dick. 491) the plaintiffs, as. assignees of the husband, claimed a contingent legacy given to the wife but not reduced into possession in the life of the husband. Lord Bathurst remarked, that there is a difference between an assignee for a consideration, and the assignees of a bankrupt, because a general assignee must sue in his own name, but a particular assignee must sue in the name of the husband. He adds, that if the husband dies before the subject of the assignment is recovered, the assignee will lose all legal remedy, and must co.me into Chancery for its assistance ; that particular assignments have been sometimes supported, hut not generally; that the Coqrt will not strip a widow and children ; that the interest of the wife was not such a legal interest as the husband could assign ; and he dismissed the bill. He cited IVenman v. Mason, where the wife had joined her husband in the assignment, and yet she was allowed a settlemept of £300.

Pope v. Crashaw, 4 Br. Ch. Cas. 326, A. D. 1793.

In Pope v. Crashaw, (4 Br. C. C. 326) the Master of the Rolls said, he hoped it would be understood, that a husband * # ( t * cannot by assigning his wife’s property bar her of any equity she may have in it. That be should never subscribe *9 the contrary doctrine.

Burdon v. Dean, 2 Ves. Jun. 607, A. D. 1795.

In Burdon v. Dean, (2 Ves. Jun. 607) the right of the wife , . ° , to her equity was distinctly admitted and allowed'.

The case of Like v. Beresford, (3 Ves. 506) was much stronger than the present in favour of the assignee for valuable consideration. The wife was entitled to a legacy, in bank stock, on the day of her marriage. She eloped with Beresford, in October, 1780, and about the same time a bill .was filed in her name, against the trustee, and the stock was transferred to the name of the Accountant General. The real object of the bill was, to make the wife a ward of the Court of Chancery. Beresford filed his bill to obtain the stock ; and during the pendency of the suit borrowed money of one Roberts, and conveyed the stock to him in trust to sell and pay himself, and to pay over the residue to Beresford. Beresford also became indebted to Like, the plaintiff, for money and necessaries furnished to him and his wife; in consideration of which, and of moneys to be advanced by Like, Beresford, by deed of assignment of March, 1783, conveyed the stock to Like, subject to Roberts’ claim. The whole, being upwards of £5000, was decreed to trustees, for" Mrs. Beresford ; and the object of Like’s bill was, to obtain payment of his demand, out of the dividends accrued subsequent to the marriage". It was insisted, for the plaintiff, that whatever is the rule as to the husband’s right to assign his wife’s fortune for valuable consideration, at least, he should be allowed the dividends accrued, and that he might, for valuable consideration, assign an equitable estate in the wife’s property. But the Master of the Rolls decreed against the plaintiff, relying on the declaration of Lord Hardwiclce, in Jezuson v. Moulson, that the right of the husband to. assign would put an end to the equity of the wife. Much weight was placed on the fact that the wife was a ward of the Court.

Like v. Beresford, 3 Ves. 506, A. D. 1797.

In Macauley v. Philips, (4 Ves. 19) speaking of the decisión in Like v; Beresford, the Master of the Rolls says, the guard of a Court of Equity upon the wife’s interest would be very singular, if the husband, not being entitled at law, might assign it for valuable consideration to another person, who would be entitled in Equity; and it never was decided, that the husband could by such assignment or any other mean? deprive her of her equity.

Macaulay v. Philips, 4 Ves. 19, A. D. 1798.

I will notice but one other case on this point. In Johnson v. Johnson, (1 Jac. Walk. Rep. 456) the doctrine of the two last cases is adhered to. The Master of the Rolls admits, that an assignment for a valuable consideration is sufficient to bar the right of the wife, surviving ; but that it does not, however, take away her equity. All this, he adds., is too clear to admit of any doubt. ■

"Wife's equity cannot be taken from her, except by her consent in open court, o.r ty a suitable provision, tor her.

Rule is the same as to busba‘i i and his qs.sigae.e, gen. eral or special, in law or in fact, voluntary pr for a valuable, consideration.

It appears, therefore, to b.e established beyond all dispute, that the personal property of a feme covert .which, is under the protection and control of the Court of Chancery, cannot be taken from her without her consent in open Court, or by a suitable provision being made for her out of the property. And it matters not whether (be application for the property be made by the husband, or his assignee in law, or his assignee for a valuable consideration. Whether the Court will ex-t . tend its aid to property which the husband or his assignee can reduce to. possession at law, is not absolutely decided nor does that question arise here.

11 Ves 12. 4 id. 515. 1 Des. 263. 2 John. Ch. Rep. 206.

To the cases already mentioned may be added, Wright v. Morley. (11 Ves. 12) and Franco v. Franco, (4 Ves. 515) in England ; and, in this country. Ex parte Beresford, (1 Des. 263) and Howard v. Moffatt. (2 John. Ch. Rep. 206.) And, on the whol.e, I fully concur with his Honor the. late Chancellor, when he says, “ I consider the wife’s equity, as against any assignment whatsoever and to whomsoever, to. be now too well settled to be sh.^cen.”-

Tire extent of pro.vision for the wife is a subject of reference to a master, and must, from its nature, depend on the circumstances.

As to the amount of the wife’s estate, which-shall be seem red to her, that is a proper subject of reference to a Master, and must necessarily be determined by the circumstances of each particular case. The rule is, that a.n. adequate provision be made for the wife, and the children if there are any. What shall be considered adequate must depend entirely on circumstances. In some cases the whole has been allowed the wife—in one case an annuity of £40 per annum—in another the interest of £3000. In other cases, the half has been assigned, by agreement, and sanctioned by the Court •, and, again, £100, out of an annuity of £260, was decreed to the assignee of the husband. This part of the subject is here in no wise important, except so far as relates to that part of the decree of his Honor the Chancellor which rescinds the previous orders of the Court, allowing the dividends of the stock in question to be paid first to Kenney and afterwards to XJdall, and di ects those accruing subsequent to filing the bill to be paid to Mrs. Kenney herself, after payment of the costs, till the further order of the Court.

The general rule undoubtedly is, that the interest of the wife’s property may be received by the husband, where he lives with and maintains her. but not when he leaves her unprovided. (Watkyns v. Watkyns, 2 Atk. 96. Sleech v. Thorington, 2 Ves. Sen. 562. Wright v. Morley, 11 Ves. 12.)

interest to be ^hoiiveTwiih and maintains exceptions to tbis rule-

In Bond v. Simmons, (3 Atk. 20) Lord Hardwicke. said, that when a husband has received a great part of his wife’s portion, and only a small part remains, and the husband is so perverse that he will not make a competent settlement on the wife, the Court will not only stop the payment of the residue, but will even prevent his receiving the interest of that residue, that it may accumulate for the • benefit of the wife, unless he is starving for want of maintenance. And in Bullock v. Menzies, (4 Ves. 799) the Court refused to give the wife any part of the interest of her otvn properly, because she refused to live with her husband, when he was willing to receive and provide for her.

3 Atk. 20.

4 Ves. 799.

In some cases a reference has been directed, to ascertain the fact of the husband’s providing for his wife. If that fact be material in this case, it is pretty clear, from the pleadings and proofs, that the husband has totally neglected his duty in this respect. So far from providing for his wife, it appears to have been his object to squander the whole of her patrimony as fast as possible. He, therefore, does not come recommended to the favor of the Court, and in justice to the wife, it ought to direct the payment of the dividends either to her or to some trustee for her benefit.

But the question here is not between the husband and wife. The appellant claims to be a bona fide purchaser, by contract, for valuable consideration. Admit, for the present, that he is so. What did he purchase ■? Clearly, nothing but the right to be substituted for the husband, as to bis interest in the wife’s property. In Wright v. Morley, Sir William Grant, reasoning on the subject, asks, “If the husband has but the right of reducing the wife’s interest into possession, how can he, for valuable consideration or otherwise, convey more than he has ? If he parts with it for valuable consideration, and the assignee acquires a right different from that which the husband had, he parts with something different from what he has and he might have said more than he has. And in this instance,-if the claim of the appellant be allowed on account of his character of bona fide purchaser for valuable consideration from the husband, by that very purchase he has, in connexion with the husband, stripped this infant wife, probably, of her whole fortune, and reduced her to beggary— from competence, if not affluence, to absolute penury. But he has chosen to put himself in the situation of the husband. The Court will leave him there-

Question here husband^aM wife’ but be-ole who claims /¿ebpUrohasen

He can,- as such, claim no greater rights than the husband, but stands in husband's place, taking subject to wife’s equity.

And that he is a bonajide purchaser is questionable.

It seems, inadequacy of price, alone, is not a ground for setting contract aside.

.Advantage was taken of husband’s pecuniary distresses.

Purchaser had notice of wife’s claim ;

That the appellant is a bona fide purchaser for valuable consideration, is at least questionable- It is not necessary to impute to him absolute fraud ; but ,the facts in the case shew that an unconscientious advantage was taken of Kenney'1 s situation. The stock was offered to him at a bargain ; and had he contracted with persons on an equal footing with himself, notwithstanding the enormous speculation, the inadequacy alone would not induce the interference of the Court, ^(a) Nor is it necessary now to interfere solely on that ground. But it is certainly true, from his own shewing, that he took at least $2000, from these poor, distressed, and improvident people ; making due allowance for every risk he run, with the exception of the claim of the wife’s equity. By advancing money before the terms were absolutely settled between him and Kenney, he placed him in a situation which compelled him afterwards to submit to such conditions as might be imposed. The appellant entered into the purchase after an examination of the deed of settlement. He acted against the advice of counsel, and, as must be presumed, whatever may be the fact, with a full knowledge of the wife’s rights. His subsequent .purchase of his own bond, for half the amount secured by it, as the Chancellor justly observes, marks the character of the whole transaction.

The appellant has, however, actually patted with his rtioney, to a certain amount, and justice requires that it should be refunded to him by the husband ; and this may be done out of the wife’s property, provided there is sufficient, after making an adequate settlement upon the wife. To discuss this subject farther might be premature. 1 have no hesitancy, however, in saying, that if the stock in question is her whole fortune, it is not too much for her support ; and it should he settled upon her, for the support of herself and children, if any.

But he is entitled to what may remain after provision for wife.

The result of my researches and rejection on this casé is—

1. That the wife has an undoubted right to an adequate provision for her, and her children, if any, out of her equitable property, as against hér husband, or ahy assignee of the husband. And when it is necessary to come into a Court of Equity, for its aid in obtaining possession of such property, the Court will see that proper provision shall be made.

Wife has . right to provision Out of her equitable property, againsl husband Or any of his assignees.

2. That though, in general, a husband who lives with and maintains his wife is entitled to receive the dividends or interest of her estate, yet when the husband deserts his wife, or neglects or refuses to provide for and maintain her, or when he has misbehaved himself, and ran away with a ward of the Court, and, I would add, when he has shown a total incapacity to manage his concerns, ora disposition wantonly to waste his wife’s property, in such cases the Court ought to direct the interest to be paid, either to the wife, or to a trustee for her benefit.

Though husband who lives with and maintains his wife is entitled to the interest of such property, yet if he neglect to do this, or has ran away with and married a ward of the court, or has shewn incapacity to manage hia concerns, or a disposition to waste his wife’s property, court should direct the interest to be paid to her, or to some trustee for her benefit.

I am, therefore, of opinion, that the decree of his honour the late Chancellor be affirmed, except so far as it rescinds the former orders of the Court of Chancery, directing the dividends to be paid first to Kenney, and afterwards to TJdall, and that part directing the dividends which accrued before the decree to be paid to Mrs. Kenney. By the order.of the 9tk February, 1818, the dividends were directed to be paid to Kenney till the further order of the Court; and by the order of June 1th, 1819, the dividends which accrued after the IsZ January, 1819, until Mrs. Kenney should arrive at the age of 21 years, or till the further order of the Court in the premises, were to be paid ever to Udall. It seems to me just, therefore, that the appellant should have received the dividends until the 10ZÁ day of August, 1821, when the decree was made.'

Question as provi»on,Utdef pending on cir-be referred to * master.

Overplus to bint!aid appel*

The amount which will be an adequate settlement for the w¡fe must, of course, be ascertained by a Master of the Court of Chancery. The amount actually paid by the appellant ought also to be ascertained by a Master. And on the coming in of his report, sho.uld there be any thing left after making a competent provision for the wife, it is perfectly equitable and proper that the surplus be applied to the reimbursement of the amount actually advanced by the appellant.

For affirmance, sal7Í°r reTer*

WOODWORTH, J. and BoWNB, BrONSON, BüRROWS,’BüRT, Clark, Cramer, Dudley, Eárll, Gardiner, Green, Haight, Lynde, Mallory, M’Intyre, Morgan, Nelson, Redfield, Sudam, Thorn, Ward, Wheeler and Wright, Senators, concurred.

Bowman, M’Call and Wooster, Senators, dissented.

Decree.

A majority of the Court concurring in the opinion of Savage, Ch. J. it was thereupon ordered, adjudged and decreed, that the assignment of the bank stock and dividends in the pleadings mentioned, made by Edward M. L. Kenney, the husband of the respondent, Eliza S. Kenney, to the appellant, Richard Udall, on the 12ZA day of December, 1818, was and is subject to the equity of the respondent, Eliza S. Kenney, to an adequate settlement and provision therefrom ; and that the right and equity of the said respondent to such settlement and provision, out of the said bank stock, remain wholly unimpaired ; and that the decree of the Court of Chancery made in this cause on the 10th day of August, 1821, so far as the same declares such equity of the said respondent, be, and the same is hereby affirmed. But inasmuch as it appears to.this Court, that the appellant, Richard Udall, was entitled, under the orders of the Court of Chanrery referred to in the pleadings, and directing the dividends of the said stock to be paid to the said Edward M. L. Kenney, and afterwards to the said appellant himself, to receive the said dividends until the date of the said decree so made in this cause by the said Court of Chancery—it is ordered, adjudged and decreed, that so much and such part of said decree as rescinds the said orders, and directs the dividends on the said stock which were received since the said 1 lift day of November, 1820, and prior tp the making of the said decree, to be paid to the solicitor for the said respondent, be, and the same is hereby reversed; and that the same be paid to the appellant. And it is further ordered, adjudged and decreed, that the record in this cause be remitted to the Court of Chancery; and that it be referred to one of the Masters of that Court, to ascertain and report as to the fortune and estate of the respondent, Eliza S. Kenney, derived from her father, Thomas Hewitt, or otherwise, and the disposition thereof; and, generally, as to the property, estate, condition and circumstances of the said Eliza S. Kenney and her husband, Edward M. L. Kenney, at the time of their marriage, and also at the time of making such report; to the end that such competent and adequate settlement and provision may be made, for the separate use and maintenance of the said respondent, and her children, if any she has, or may have, out of the aforesaid bank stock, and the dividends which accrued thereon after the said decree, as may be just, regard being had to all the circumstances of the case, as the same shall appear on the coming in of such report; and that the surplus, if any, be decreed to the appellant, &c.;‘

(a) Vid. Seymour v. Delaney, ante, 445.