
    David D. Maney & N. Baxter, Clerk & Master, ex parte.
    
    April Term, 1873.
    Husbaud and wife — Wife’s eunds in COURT. — 'Under the Code funds in court belonging absolutely to a married woman cannot be paid to any person except by her consent, upon privy examination by the court, or a commissioner appointed by the court; or by deed, or power of attorney executed by husband and wife, with her privy examination taken as in other cases.
    
      J. D. Park, for petitioners.
   The Chancellor :

Tbis is a petition, filed in tbe case of Josephine T. Bryan, executrix, v. Mary D. Bryan, to bave tbe funds in tbat case belonging to tbe said Mary D. Bryan, amounting, at tbe rendition of tbe final decree in tbat cause, to tbe sum of $13,451.88, paid to the petitioner David D. Maney as tbe husband of tbe said Mary D., or tbat be be substituted as trustee for bis wife without giving bond and security. Tbe fund came to tbe said Mary D. by the will of her mother under a general residuary clause giving it to her absolutely without any restriction, and without settling it upon her to her sole and separate use. Tbe fund is invested in notes secured by mortgages, and by tbe said final decree in said cause said notes and mortgages were directed to be assigned “ to tbe clerk and master in trust for tbe said Mary D.,” and they were assigned accordingly. Tbe clerk and master joins in tbe petition and expresses his willingness to resign tbe trust, and submit to any order tbe court may make in tbe premises. Tbe question raised by the petition is whether tbe court is authorized to make the order requested. Outside of any statutory provisions, it is clear that tbe order would be proper. Tbe fund belongs to tbe married woman, is derived from personalty, and tbe husband is entitled to reduce it into his possession unless the wife actively intervenes to claim a separate settlement.

Tbe Code, however, contains several provisions of positive law on tbe subject. Tbe first is embodied in § 2483, in these words : “ The proceeds of real or personal property belonging to a married woman, cannot be paid to any person except by consent of such married woman upon privy examination by tbe court, or some suitable commissioner appointed by tbe court; or, unless a deed or power of attorney is executed by tbe husband and wife, and her privy examination taken as in other cases.”

This is a general provision of law under a general bead of “ provisions for tbe benefit of married women and their children.” It is not confined to funds derived from judicial sales, nor in any particular mode, but is general and sweeping, and applies to any funds in court, no matter bow obtained nor in whose bands tbe same may be.

The construction of this section was considered, but only incidentally, in Snowden v. Lindsley, 6 Cold. 125, in which case it was held that a creditor of tbe husband could not subject such a fund in court to tbe satisfaction of bis debt until tbe husband bad reduced it to possession, and tbe implication was that such a reduction into possession could not be made except in tbe form prescribed by tbe statute.

By tbe Code, §§ 3319 and 3320, tbe same provisions of law are specially repeated in regard to tbe proceeds of realty belonging to tbe wife sold for partition. And by § 4052 it is provided “tbe proceeds of tbe real and personal property belonging to a married woman, sold by order of any of the courts of this state, shall not be paid out by tbe clerk or any commissioner except as provided in §§ 3319 and 3320.”

Tbe provisions of tbe Code indicate clearly tbe intention of tbe legislature that the funds of married women, no matter bow derived, which happen to be in tbe custody of tbe courts; or clerks or commissioners of court, shall not be paid out except in one of the modes designated in §§ 2483, 3319 and 3320. In this view, the court has no authority to depart from the express direction of the statute. The order asked for cannot, therefore, be made under this petition.

The proper mode would be to suggest the marriage of the said Mary D. in the suit under which the fund is held, and make the husband a party, and then ask for an order that the fund be paid out to the wife in conformity with the statute law. But I see no objection to the husband and wife coming before the court in the mode adopted, by petition setting out the facts. In either case, the proper order is one, reciting the character of the fund, whence derived, and how it is held, declaring the light of the married woman to it, and directing it to be paid out by the clerk, commissioner, or trustee, as the case may be, according to the directions of the statute.  