
    *Harcum’s Adm’r & als. v. Hudnall.
    April Term, 1858,
    Richmond.
    Wills — Case at Bar. — H died in February 1820; and by his will, among- other things, gave a tract of land and grist mill thereon, to his wife during her widowhood: and at her death or marriage the same was directed to be sold; but not until his youngest child came of age; and the proceeds of the sale he directed to be equally divided among all his children, to them and their heirs. The widow renounced the provision made for her by the will. There were four children; E who married L in 1836, who died in 1842, and E afterwards married S, and died in 1852, leaving S surviving her; T who died an infant, intestate and unmarried, before the youngest child came of age; Mwho died in 1840, and bequeathed her share of the property to E; and J the youngest child, who came of age in 1889. L after his marriage with E, and S as the guardian and agent of J, rented out the land; and Ltook one-third of the rents, and paid one-third to M till her death, when he took two-thirds, and S, as guardian or agent of J, took the other third. After the death of L, E and S rented out the land, and took the rents in the same way; and after the marriage of E with S, he rented it out, and took the rents in th e same way until 1850, when W was appointed the agent of J, and took his share of_the rents. E left one child by L and two by S. J seems to have lived in New Orleans. S was the administrator of E, and S S was administrator of T, and administrator debonis non of M. Held:
    1. Same — Equitable Conversion. — The land and mill is to be considered as money, and to pass as such to and from the legatees of H.
    2. Same — Same—Election—Essentials.  — Though the legatees might have elected to take the same as land, yet such an intention must have been clearly manifested; and all the parties interested in the property must have united in the election.
    
      3. Same Same- Same -Evidence -Case at Bar4— The renting out the land, and taking the rents hy L, during his life, is not sufficient evidence of an election on his part to take the land as land.
    4. Same— Same— Same-Same — Same.—-M having in her will spoken of a hill about to he filed for the sale of the land, and having given either the land or the proceeds of sale to E, it is evident she had not elected to take the land as land; and therefore no election hy L could change the
    character of the bequest.
    *‘5S* Same - Same -Sale after Specified Period --Case at Bar. — The property having heen directed to be sold when J came of age, it will he considered as money from that period: And the interest which 15 took under her father's will being an interest in money, the proceeds of the sale ol the property whenever it should he made, at her death nothing passed to her children as her heirs at law.
    
      6. Same — Same—Same- -Nature of Property after That Time. — M having lived until J came of age, her bequest to 15 was a bequest of money, the proceeds of the sale of the land.
    7. Same — Same -Same — Nature of Property before That Time -Quiere.-- T having died before J came of age. and therefore before the time fixed for the sale of the properly, ivmre, if his interest passed as real estate to his heirs, or as money to his administrator.
    8. Same -Same — Same-Same.—If T’s interest descended to his heirs, they took it subject to be converted into money by a sale, just' as ne held it.
    9. Same — No Debt Due from Estate Rights of Beneficiaries, — There being no suggestion by the administrator of T and M, that there are any debts due from them, the interest of T in the property may be distributed among his brother and sisters; and 15 may take directly her sister’s third of the whole under her will, without regard to the claim of S as administrator of T and M.
    10. Same — Equitable Conversion Nature of Beneficiary’s Interest — Case at Bar. — The interest of 15 was not an estate in the premises, but a mere chose in action, a right to have a sale of the property, and to receive her two-tliirds of the proceeds. The act of her first husband L in renting out the land and receiving the rents, wax not a reduction of the chose in action into possession; and therefore on his death it survived to E; and on her second marriage and death, her surviving husband is entitled to it as her administrator.
    11. Same — Same—Sale at Future Time — Right to the Rent before Sale. — The rents of the property before the sale belonged to the persons who were entitled to the principal subject, and would goto them in common with the moneys arising from the sale, as personal property. And those received by L in his lifetime were thus reduced into his possession, and became his absolute property.
    This was a suit in equity instituted in September 1853, in the Circuit court of Northumberland county, by John J. Hud-nall the younger, for the division of the estate left by his father; and the only subject of controversy was the land.
    John Hudnall the elder died prior to February 14th, 1820, having left a will, which was admitted to probate *011 that day. By his will he gave to his wife certain slaves by name, certain other personal property, and the plantation on which he lived and his water grist mill, to be held by her during her widowhood, for the support of herself and of the testator’s children. At the death or marriage of his wife, he gave all the slaves and personal property to be equally divided among all his children. And at the death or marriage of his wife, he directed that his mill and land should be sold; but it should not be sold until his youngest child came to the age of twenty-one years. And the proceeds of the sale of said mill and land he directed to be equally divided among all his children, to them and their heirs. William Hudnall, who was appointed executor, refused to qualify, and administration with the will annexed was committed to William Harding. The widow also renounced the provision made for her by the will. There were four children. Elizabeth, who married Leroy Harcum, in 1836, who died in 1842. She afterwards married Samuel Harcum, and died in 1852, leaving him surviving; and he qualified as administrator on her estate. Thomas Hudnall died an infant, intestate and unmarried, before ihe youngest child came of age. Margaret Ann died in 1840, having made her will, in which reciting, that steps had been taken to obtain a decree for the sale of the land, for the purpose of distribution, she gave her share of the proceeds of sale, if it was sold, after paying her debts, to her sister Elizabeth. And if the land should not be sold, that it should go to Elizabeth and at her death to the heir or. heirs of her body. Leroy Harcum qualified as administrator with the will annexed on her estate. John J. the youngest child was born in 1818, and came of age therefore in 1839. He seems to have lived for years in New Orleans. It does not appear in the record when the widow of John Hudnall died.
    *During the lifetime of Leroy Har-cum, and after his marriage with Elizabeth, he and Samuel Harcum, who acted as guardian or agent of John J. Hud-nall, rented out the land devised by John Hudnall, the elder, jointly, as a whole tract, and Leroy Harcum took two-thirds of the rents, including the share of Margaret Ann, and Samuel Harcum as guardian or agent of John J. Hudnall, the plaintiff, took the other third. After the death of Leroy Harcum, Elizabeth his widow, and Samuel Harcum as agent of John J. Hud-nall, rented out the land jointly, and took the rents in the same proportions, until her marriage with said Samuel Harcum, when he rented the land out himself, and took two-thirds to himself and one-third as the agent of John Hudnall, until 1850, when he settled with said John J. Hudnall. And since 1850 Harcum rented out the land and received two-thirds of the rents himself; but he then ceased to act as the agent of John J. Hudnall, who at that time appointed William B. Hudnall as his agent to receive his part of the rents. Elizabeth left one son by her first and two children by her last husband. And at the time of the decree Samuel L. Straughab was the personal representative of Margaret Ann and Thomas Hudnall.
    The cause came on first to be heard on the 28th of October 1853, when the court held that the remainder in the land and mill mentioned in the will of John Hudnall deceased, was by his will converted into personal estate, in equity, and that the right thereto devolved upon the four children the legatees of the testator as legatees of personalty, and upon the personal representative of such as were dead. And a commissioner was appointed to sell the land and mill.
    After this decree was made William B. Hudnall, the administrator of Leroy Har-cum deceased, filed his petition asking to be made a party in the cause, and claiming that the will of John Hudnall having converted *the land and mill into personal estate, Leroy Harcum had reduced it into possession during his marriage with his wife Elizabeth; and this included his wife’s share of the interest of her brother Thomas, and the whole of the share of Margaret Ann, both of whom were dead whilst he was alive. The petitioner relied on the possession of the land by Leroy Harcum, and his renting it out and receiving two-thirds of the rents, as the means by which his wife’s interest in the property had been reduced into his possession.
    The cause came on again to be heard in April 1854, upon the report of the commissioner and the petition of Leroy Harcum’& administrator, when the court confirmed the report, and held that the interest of Elizabeth Hudnall, as legatee under her father’s will, as distributee of her brother Thomas, and as devisee of Margaret Ann, survived to her upon the death of her first husband Leroy Harcum, without having reduced the same into possession; and that the proceeds of the sale of the land, when due and collected, belonged to Samuel Har-cum as her administrator, to the extent of her interest, which was two-thirds thereof: and the petition was therefore overruled. Erom this decree Leroy Harcum’s administrator and Leroy Harcum his son applied to this court for an appeal, which was allowed.
    Patton, for the appellants.
    C. Robinson, for the appellees.
    
      
      Equitable Conversion. — In Zane v. Sawtell, 11 W. Va. 48, it was said: “A court of equity regards lands deeded or devised to be sold and converted into money, or money either articled or bequeathed to be invested in land as having the character of property into which it' is to be converted, though the actual conversion by sale or purchase as the case may be, has not been actually effected. Harcum’s Adm'r. &c. Hudnall, 14 Gratt. 369; Washington’s Ex’or v. Abraham &c., 6 Gratt. 66; Tazewell et al. v. Smith’s Adm’r, 1 Rand. 315; Pratt v. Taliaferro, 3 Leigh 419; Morrow v. Brenizer, 2 Rawle 185 ; Allison v. Wilson’s Ex’or, 13 S. & R. 330; Edwards and Wife v. Countess of Warwich, 2 P. Wms. 171-175 n. ; Cruise v. Barley, 3 P. Wms. 22, n. 1; Craig v. Leslie, 3 Wheat. R. 563.”
      The principal case is also cited as authority on this subject in Ropp v. Minor, 33 Gratt. 109: Carr v. Branch, 85 Va. 602, 8 S. E. Rep. 476; Watson v. Conrad, 38 W. Va. 543, 18 S. E. Rep. 746; Findley v. Findley, 42 W. Va. 375, 26 S. E. Rep. 434; Board of Trustees v. Blair, 45 W. Va. 825. 32 S. E. Rep. 208.
      See also, in accord, Effinger v. Hall, 81 Va. 107; Siter M’Clanachan, 2 Gratt. 280, 294; Phillips v. Ferguson, 85 Va. 509, 8 S. E. Rep. 241.
      See monographic note on “Conversion and Reconversion" appended to Vaughan v. Jones, 23 Gratt. 444.
    
    
      
      Same — Election.—in Buxton v. Shaffer, 43 W. Va. 298, 27 S. E. Rep. 319, it was said : “ Where the whole beneficiary interests of the land directed to be converted into money by sale is in the children, a court of equity will not compel the executor to execute the trust against the wishes of the cestuis quo trustent, but will permit them to take the land, if they elect to do so before the sale has been made ; and this election they may make as well by acts or declarations clearly indicating it as by application to a court of equity. Craig v. Leslie, 3 Wheat. 563; Harcum's Adm'r v. Hudnall, 14 Gratt. 369. See also, in accord, the principal case cited in Zane v. Sawtell. 11 W. Va. 49.
      As authority for the proposition that no one beneficiary can exercise the right of electiou without the affirmative consent of all the others, see the principal case cited in Brown v. Miller, 45 W. Va. 212, 31 S. 15. Rep. 957 ; Effinger v. Hall, 81 Va. 107. See monographic note on “Conversion and Reconversion” appended to Vaughan v. Jones. 23 Gratt. 444.
    
    
      
      Sarne — Same—Evidence.—in Shanks v. Edmondson, 28 Gratt. 812, it was said : “The election to hold such real estate, either by a person eui juris, or by a married woman, made by her husband in her behalf, or conjointly with himself, must be plainly and distinctly proven, and cannot be left to mere inference, unless such inference is so strong from all the circumstances as to be equivalent 'to positive proof of a clear intention so to elect. See Siter, Price & Co. v. McClanachan, 2 Gratt. 280; Pratt v. Taliaferro, 3 Leigh 419; Commonwealth v. Martin’s Ex’ors, 5 Munf. 117, 128; Harcum's Adm'r & als. v. Hudnall, 14 Gratt. 369, 378, 379; Thornton v. Thornton, 3 Rand. 179; Craig v. Leslie, 3 Wheat. R. 563, 578, 585, 586 ; 2 Story’s Eq., §§ 1210, 1211 ; 1 Lead. Gas. in Eq. pt. 1st, vol. 1st, 335 to 342 ; Ib. § 793.”
    
    
      
      Same — Nature of Beneficiary’s Interest. — See principal case approved in Effinger v. Hall, 81 Va. 107; Carr v. Branch, 85 Va. 602, 8 S. E. Rep. 476.
    
   LEE, J-

That the effect of the disposition made by John Hudnall of his real estate by his will was, in the view of the court of equity, to change its character and as between the representatives of the realty and the personalty of 'those who were to take under the will, to render it transmissible as money, is agreed by the counsel for the appellants and for the appellee *Samuel Harcum. Nor could this be successfully questioned on behalf of the children of Mrs. Harcum. It is a familiar doctrine of that court that land articled or devised to be sold and converted into money, or money articled or bequeathed to be invested in land shall assume the very character of the property into which it is to be converted; and if the new form thus impressed upon it remain unchanged, it will pass to such of the representatives of those who take under the will as would be entitled to it as property of the character into which it is to be converted. 2 Story’s Eq. Jur. § 79, 1212; Fletcher v. Ashburner, 1 Bro. Ch. Cas. 497, and editor’s note; Craig v. Leslie, 3 Wheat. R. 563, and cases cited by Judge Washington. And land thus directed to be converted into money, will pass as money although the actual conversion by a sale may not yet have been effected; and if the will directing the conversion also dispose of the proceeds, the gift of the proceeds is to be considered as a gift of personal estate. Tazewell v. Smith’s adm’r, 1 Rand. 313; Pratt v. Taliaferro, 3 Leigh 419; Craig v. Leslie, ubi supra; Ashby v. Palmer, 1 Meriv. R. 296.

But though the subject thus directed to be converted is thus stamped with the character of the property into which it is to be converted, the party entitled to the beneficial interest may elect to prevent the actual conversion, and to hold it in the form in which he found it; and this election he may make by application to the court of equity or by unequivocal acts or declarations plainly manifesting his determination. Cruse v. Barley, 3 P. Wms. 22, n. 1; Edwards et ux. v. Countess of Warwick, 2 P. Wms. 171, 175, n.; Craig v. Leslie, ubi sup. ; 2 Story’s Equ. Jur. 4 793. IX however he die without having made an election, the property will pass to his heirs or personal representatives just as it would have passed if the purpose *of the will or other instrument under which he claimed had been fully carried into effect and the conversion actually made before his death. Kirkman v. Miles, 13 Ves. R. 338; Edwards et ux. v. Countess of Warwick, 2 P. Wins., ubi supra; Craig v. Leslie, 3 Wheat. 563, 577 et seq. ; 2 Story’s Equ. Jur. 4 793, and authorities cited in n. 1.

Thus in a controversy between the heir .and personal representative of a party who was beneficially entitled to a subject thus directed to be converted, as to the succession to the properly, it becomes material to ascertain whether such party had made an election to retain the subject as it was and dispense with the actual conversion, as it is not the mere right to make the election, but the actual exercise of the right, which changes the character of the subject and makes it either real or personal at the will of the party entitled to the whole beneficial interest. Craig v. Leslie, ubi supra; 2 Story’s Equ. Jur. ubi supra, and n. 1, and authorities there cited.

In this case I think nothing appears sufficiently manifesting an intent to elect by any of the parties interested. The only thing that looks at all like such election was the failure of the parties to cause the sale to be made at an earlier period and the retention of the property so long in the form of realty. But by the will of the testator the property could not be sold until John J. Hudnall attained the age of twenty-one years which was not until the fall of 1839, and from the retention of the property afterwards in the same form unaided by other circumstances or aii3r express declaration, the intent to elect is not necessarily to be inferred. The acts or declarations which shall constitute an election must clearly manifest the determination to make it. Willing v. Peters, 7 Barr (Pa. R.) 287; 2 Story’s Equ. Jur. 4 793. And the mere continuing to hold and rent the prop-erty is not inconsistent *wilh the intent to carry out the direction of the testator and to have a sale of the property at some convenient period. It may have been deemed expedient to defer the sale in the hope of receiving a larger dividend by an improvement in the value of real estate. Moreover, in order to make a valid election all who were jointly interested must have concurred. Willing v. Peters, ubi sup. ; Fletcher v. Ashburner, 1 Bro. Ch. C. 497, opinion of Sir Thomas Sewell (master of the rolls) ; Allison’s ex’or v. Wilson’s ex’ors, 13 Serg. & Rawle 330, opinion of the court delivered by Gibson, J. In these opinions it is distinctly stated that where an estate is directed to be sold and the proceeds divided amongst several persons, none has a right to say that any part shall not be sold, and that one having an undivided interest in the subject cannot compel those who are associated in interest with him to take in land what was bequeathed to them in money. And accordingly it was held in Willing v. Peters, above cited, that all who are jointlj' interested must unite in the act of election, otherwise it is nugatory.

Now it would seem that Margaret Hud-nall did not consider that she had made any election to take land instead of money, for in her will dated in 1840, she speaks of steps having been taken to obtain a sale of the land by a decree, and gives her portion of the proceeds or her share of the land if it should not be sold, to her sister Mrs. Harcum. And in 1853 John J. Hudnall who had for many years previously resided in New Orleans, filed his bill claiming the right to have a sale of property and a division of the proceeds, alleging tnat since he arrived at the age of twenty-one j'ears, the period at which the land was directed to be sold, there had been no representative of his father’s estate, and no one authorized to sell the land. Not a single act or declaration evincing the purpose to make an election can be imputed to either beyond the bare acquiescence ‘"in the retention of the subject in the form of real estate after John J. Hudnall became of age, and this may be sufficiently explained by the circumstances.

No discrimination appears to be made in this doctrine of “equitable conversion,” between the case of a conversion which is not required to be made at any particular period and which therefore in the case of a will, should be made presently after the death of the testator, and one in which the conversion is to be made at some future period prescribed. In the latter case “we must consider the property as converted from the time when it ought to have been converted.” Per Cranworth, Lord Chancellor, Eerrie v. Atherton) 28 Eng. Law and Eq. R. 1. Here the will directed in effect that the conversion should be made when John J. Hudnall arrived at the age of twenty-one years, and equity will regard that which ought to have been done as having been actually done and consider the property devised as stamped with the character of money from and after that period, and as so continuing afterwards in the absence of an election by all those jointly interested to take the testator’s bounty in the form of real estate.

We must conclude therefore that the interest which Mrs. Harcum took under the will of her father was an interest in money, the proceeds of the sale of the property whenever the same should be made, and that at her death nothing in this subject could pass to her children as her heirs at law. • And this is equally true of the interest which she took under the will of her sister Margaret, and as one of the heirs at law and distributees of her brother Thomas. Margaret by her will made after her brother John became of age, gave her whole interest to. her sister Mrs. Harcum; and as the period’ for the conversion of the property had arrived, it was clearly a bequest of money, her share of *the proceeds of the sale. Thomas Hudnall died before his brother John attained his majority, and before the actual conversion of the property by a sale could be made; and if his interest for that reason is to be regarded as in the realty and descendible to his heirs, they would nevertheless take it subject to be converted into money by a sale, just as he held it, and as they held their respective interests in the same subject, under the will of their father. If it be regarded as personalty, it might now be successfully claimed by his administrator Straughan if it were needed for payment of any debts due from his estate; and Straughan as administrator of Margaret Hudnall might also lay claim to have her interest paid to him if any such exigency of her estate required it. But Thomas Hud-nall died an infant, unmarried, intestate and without issue, and in the absence of any suggestion to the contrary, it will be presumed that he owed no debts. Myers v. Wade, 6 Rand. 444, 448, opinion of Green, J. Geroy Harcum administered upon the estate of Margaret Hudnall and as it appears, settled the affairs of the same in his lifetime; and as Straughan in his answer or elsewhere, makes no suggestion that there were any debts due from the estate of Margaret, it should be taken that there were none. The interest of Thomas would then be properly distributed among his surviving sisters and brother, -and Mrs. Har-cum might take directly her sister’s third of the whole under her will in addition to her own, without regard to the claim of Straughan as administrator of Thomas and Margaret.

Thus the case is resolved into a controversy between the administrator of Geroy Harcum, the first husband, and Samuel Harcum the second husband and personal representative of Mrs. Harcum whom he survived. The interest of Mrs. Harcum was not an estate in the premises, but a mere chose in action, a right to have a *sale of the property and to receive her two-thirds of the proceeds. Willing v. Peters, ubi sup. If Geroy Harcum during his life did any thing that can be accepted as a reduction of this chose into possession or as the equivalent, it thereupon became his property and his administrator would be now entitled to recover it. If otherwise, then upon his death it survived to Mrs. Harcum, and upon her death Samuel Harcum her second husband who qualified as her administrator became entitled to receive it. Coke Gitt. 351; 1 Bright on Husband & Wife, ch. 4, § 1, p. 34; Id. § 4, p. 41; Siter, &c., v. McClanachan, 2 Graft. 294.

It appears that after Geroy Harcum’s intermarriage with Elizabeth Hudnall, which took place in 1835 or 1836, he and Samuel Harcum (as guardian, it is to be inferred, for John J. Hudnall during his minority and as his agent afterwards), rented out the land, conjointly, and received the-rents. Margaret Hudnall during her life received her third of the rents, and after her death her portion was appropriated by Geroy Har-cum along with his wife’s third. And it is. urged for the appellants that this was such a reduction into possession on the part of Geroy Harcum as vested the property in him because the subject being in the form of real estate until a sale took place it was not susceptible of any other possession.

No case has been cited, nor in my examination have I seen any, presenting the question as to a subject situated precisely like the present. There are however some cases to be found bearing a strong analogy to this and which will serve to aid in its elucidation.

The acts to effect a reduction into possession of the wife’s chose in action must be such as to change the property in it or something to divest the wife’s right and to make that of the husband absolute; such as a judgment in an action commenced by him in his own name, or a receipt of the money or a decree that it be *paid to him or applied to his use. Free, in Ch. 412, 418; Schuyler v. Hoyle, 5 John. Ch. R. 196; 1 Bright, ch. 5, sect. 1, p. 48. In Yerby et ux. v. Lynch, 3 Graft. 460, the question was whether settling with a guardian and administratrix and taking a bond to the husband for the amount due his wife was a reduction of the chose into possession of the husband; the court however was equally divided. In the course of his opinion, Judge Baldwin said that by suing out execution upon a judgment recovered in the name of himself and wife, the husband divested the interest of the wife. He referred to Clancy on Rights, 113 to 116. This proposition is controverted by a learned writer who maintains that it is entirely unsupported by authority. 3 Rob. N. P. 206. However this may be, Geroy Harcum, in his lifetime effected no change of the condition of this property, he obtained no decree that his wife’s interest should be paid over to him or applied to his use. He received the rents and thus reduced them to possession: but he did not and could not appropriate the principal subject. He took no step to obtain such a decree as would have vested the property in himself. He made no demand on Harding the administrator, who if living might have made sale of the property', to make it; nor if he were dead or refused, did he file a bill to execute the trust. He contented himself with receiving the annual rents. Now if he could have done nothing more during John J. Hudnall’s minority towards a reduction of the subject into possession, the same cannot be said of the period that lapsed after John J. Hudnall attained his majority. Geroy Harcum lived some three years after that event, and might readily have obtained a decree which would have vested the property7 in himself. But to any proceeding instituted to obtain such a decree, he would have had to make his wife a party. Eor although as to all rights of personalty and causes of action accrued *to the wife or to husband and wife jointly, during the coverture, he may, if he will, sue in his own name alone, 3-et as to such rights and causes of action as accrued before the coverture including negotiable instruments (though as to them the rule was formerly different), it is now well settled that he cannot maintain an action at law to recover them without joining- his wife as a party. Hardy v. Robinson, 1 Keb. R. 440; Milner v. Milner, 3 T. R. 627; Rumsey v. George, 1 Mau. & Sel. 176; Richards v. Richards, 2 Barn. & Aid. 447, 22 Eng. C. L. R. 119; Sherrington v. Yates, 12 Mees. & Welsb. 855; 1 Bright, ch. 5, sect. 4, p. 63, 64. Here as the interest of the wife was in the nature of a legacy, to obtain which the aid of a court of equity must be invoked, it would a fortiori, have been necessary that the wife should be joined in any proceeding in the court to obtain it. Blount v. Bestlaud, S Ves. R. 515. And the criterion by -which to determine whether the wife may join in the action is whether the right of action would survive to her upon the death of her husband in her lifetime. Aiding v. Whichner, 6 Adol. & Ell. 264; 1 Bright, ch. 5, § 4, p. 63.

The rents issuing out of the property before the sale belonged to the same persons who were entitled to the principal subject and would go to them in common with the moneys arising from the sale, as personal property. Yates v. Compton, 2 P. Wms. 308; Doughty v. Bull, Id. 320. And as already stated, those received by Beroy Har-cum in his lifetime were thus reduced into his possession and became his absolute properly; but it does not follow that therefore the principal subject was thus reduced into possession. After the death of Beroy Harcum, Mrs. Harcum continued to receive the rents in the same way, and after her marriage with Samuel Harcum he received them by virtue of his marital rights. Thus the acts of Samuel Harcum after his marriage with Mrs. Harcum, consti-tilted as much *a reduction of the subject into possession as did those of Beroy Harcum, for the reason that the property remained just as it was throughout the whole period, including the widow-hood of Mrs. Harcum, without any change having been effected in its condition. None of these parties had any estate in the land under the will or any interest which could be the subject of a lien by a judgment or could be reached by a creditor with an execution against his lands. Allison’s ex’or, v. Wilson’s ex’ors, 13 Serg. & Rawle 330; Morrow, use, &c.. v. Brenizer, 2 Rawle’s R. 185 ; Willing v. Peters, 7 Barr’s R. 289, et seq. and cases cited in the opinion of Bell, J. Nor did the receipt of the rents by either change the character of the subject or confer upon him any other or different interest than he already had. If it had constituted a reduction into possession by Beroy Harcum, it would be unnecessary for his representative to come into court now and ask it lo give him possession.

The receipt of interest by a husband upon a chose in action belonging to his wife, has not been held to be such a reduction into possession as would vest the chose in him and defeat the wife’s right by sur-vivorship. Thus where a sum of money was charged in favor of.a feme sole upon her brother’s estate, and he upon occasion of her marriage covenanted in a settlement to pay it to her husband, and the husband received the interest for some time after the marriage but died without having collected the principal, it was held that although the husband during the coverture might have released or discharged it, yet not having done either, upon his death it vested in the wife by survivorship. Howman v. Corie, 2 Vern. R. 190, and n. 1. So where a promissory note bearing interest was given to a woman before coverture, and after her marriage her husband received the interest upon it during her life, it was held that the note was not "'thereby reduced into his possession, but passed to her administrator. Hart’s adm’r v. Stephens, 6 Ad. & El. N. S. 937, 51 Eng. C. L. R. 537. In Nash v. Nash, 2 Madd. R. 133, a promissory note for ten thousand pounds payable on demand was given to a woman after her marriage, and she delivered it to her husband who received one thousand pounds of the principal and also received the interest on the remaining nine thousand pounds up to his death. His wife survived him, and it was held by the vice chancellor (Sir T. Plumer) that this was no reduction of the chose into possession, but that the right to the nine thousand pounds belonged to the wife by survivor-ship.

In Hart’s adm’r v. Stephens, 6 Ad. & El. 937 (51 Eng. C. L. R. 537), Patterson, J., speaking for the court, says that for the proposition that the receipt of interest by the husband on a note belonging to his wife will serve to reduce it into possession, “we think there is no foundation.” The observations of Bord Ellenborough in giving judgment in McNeilage v. Holloway, 1 Barn. & Ald. 218, which were supposed to favor that doctrine, have been considered too strong and disapproved of in subsequent cases. See Richards v. Richards, 2 Barn. & Ald. 447; and Gaters v. Madely, 6 Mees. & Welsb. 423.

The cases which I have thus cited and briefly stated, seem to me to be not stronger against the husband’s claim, in principle, than the case in judgment, and to my mind their tendency is very direct to deny to the receipt of the rents by Ihe husband in such a case as the present, the effect of a reduction of the subject into his possession so as to defeat the wife’s right of survivorship. Nor will the case be helped by a reference to the doctrine touching the husband’s interest in his wife’s chattels real. To these the law gives the husband a qualified title with a right to the possession and enjoyment of the subject and a power of '"'alienation during the coverture. If he dispose of his wife’s terms for years by a complete act in his lifetime, her right by survivorship will be gone, and this whether his disposition was with or without consideration, and whether the legal estate in the terms was in the wife or was held in trust for her benefit. Grute v. Locroft, Cro. Eliz. 287; Tudor v. Samyne, stated in note to Scarborough v. Borman, 4 Mylne & Craig 389; Sir Edward Turner’s Case, 1 Vern. R. 7; S. C. 1 Ch. Ca. 307; Carteret v. Paschal, 1 P. Wms. 197; Mitford v. Mitford, 9 Ves. R. 87, 98, opinion of Sir William Grant. But if the husband do not alien the terms and survives his wife, he takes them by virtue of his marital rights. Co. Litt, 46, b, 351, a; 1 Bright, ch. 8, s. 1, p. 94. But notwithstanding the husband’s possession and enjoyment of the terms during the coverture, if the wife be the survivor and the terms remain in statu quo and unchanged, she and not the husband’s next of kin will be entitled to them; and even his disposal of them by will will not prevail against her right by survivorship; for as this takes effect immediately upon his death, it takes precedence of the bequest in the will which cannot take effect until after his death. Co. Litt. 351; 1 Bright, ubi sup. and p. 95.

In every view that I have been enabled to take of this question, I think that upon the death of Leroy Hare am, the right to Mrs. Harcum’s share of the proceeds of the property survived to her; that upon her death it passed to her second husband Samuel Harcum, who also qualified as administrator to her estate, and that the Circuit court did not err in directing the same, being two-thirds of the whole, to be paid to him. And I am therefore of opinion to affirm the decree.

The other judges concurred in the opinion of Lee, J.

Decree affirmed.  