
    Lodge against Hamilton, administrator of Hamilton.
    In Error.
    ERROR to the Common Pleas of Westmoreland county, in which a case was stated in the nature of a special verdict, and judgment by consent entered for Hamilton, plaintiff below.
    It was an action upon a recognisance of fames Lodge, and others, to fames Hamilton, deceased, and Eleanor, his late wife, who survived him. Eleanor was one of the daughters of Benjamin Lodge, deceased, who died intestate, seized in fee simple of real estate: and proceedings being had in the Orphan’s Court, for the partition of his estate, the land being incapable of division was allotted to his son fames, and the daughters were to have their proportions of the value of the said "land, paid to them in money. To secure the share of Eleanor, this recognisance was entered into to James Harmltoni an$ Eleanor Ais wife, in right of his wife. Some time before the death of James Hamilton, he obtained a divorce £rom tbe bond of marriage with his wife, for her adultery. He died without having reduced this debt into possession, or made any assignment or disposition of it. Whether the wife should take it, or the administrator of the husband, was the question.
    
      A recognisance taken in the Orphan’s Court for the wife’s» shave of land, in the name of the husband and wife, not reduced into possession nor disposed of by the husband, survives, on hi$ death, to the wife.
    A divorce ofthe husband from the bonds of matrimony on account of the wile’s adultery, makes no difference in the principle.
    
      
      Lyon for the plaintiff, in error.
    A chose in action of the wife, not reduced to possession by the husband, survives to the wife.' Costs in Chancery, decreed to the husband and wife, survive to the wife. Coppin v. ——.
      
       The husband sued in Chancery for a legacy to the wife, and died before decree: held that it survived to the wife. Bond v. Simmons.
      
       The present case is even stronger than the common case of the death of the husband: because the marriage was dissolved by divorce, the effect of which is by the act of. assembly, to restore them to their respective rights, and enable them to marry again. Act of Assembly, 19th September, 1785. Sect. 6.
    
      Alexander contra.
    Before the recognisance the wife’s right was to real estate. That right has been changed. The husband might have petitioned for a division of the real estate, without his wife. The change from land to money gave the husband the absolute right: and the recognisance ought to havé been taken to the husband alone, the joining the wife was surplusage. The husband, having obtained an award for a debt due to his wife, prevents the survivorship to his wife. Oglander v. Baston.
      
       The husband’s creditors are the persons who now claim against the wife: the divorce act imposes no obligation on the husband to refund property of the wife. It only declares each person free from all obligations resulting from marriage. He cited 3 Lev. 403. 1 Strange, 229. 2 Mod. 217. Whitacre v. Whitacre.
      
       Palmer v. Trevor.
      Christ's Hospital v. Bryon & wife.
      
       2 Brown's Parl. Cas. 10.
    
      
       2 P. Wms. 497.
    
    
      
      
         3 Atk. 21.
    
    
      
       1 Vern. 396.
    
    
      
      
         6 Johns. 118.
    
    
      
      
         1 Vern. 261.
    
    
      
       2 Vern. 683.
    
   Tilghman C. J.

The general rule is, that the choses in action, of the wife, survive to her, unless the husband had reduced them into possession,' or assigned, or released them, during the coverture. And the same rule prevails where the husband and wife, jointly, become entitled to a chose in action during the coverture. This sufficiently appears from the cases of Coppin v. --, 2 P. Wms. 497. and Bond v. Simmons, 3 Atk. 21. What then is to take this case out of the general rule ? The plaintiff’s counsel contend that the husband, having died indebted, the creditors have an equitable lien on this recognisance. But that is impossible because the husband never pledged it to them, nor is there any evidence that the debts were contracted on any other than his general credit. No case has been, or can be, cited, where the wife, surviving her husband, has been deprived of her choses in action, in favour of his creditors, unless he had obtained the possession, or made some assignment or disposition of them in his life-time, or stood in the light of a purchaser of his wife’s property, in consequence of marriage articles, or some agreement made on a valuable consideration. But it is said that this recognisance ought to have been to the husband alone, and that the addition of the wife’s, name . was surplusage. On the contrary, I consider it as a very substantial part of the recognisance, and the Orphan’s. Court are to be much commended for taking it in that way. It is hard enough on the wife that, by virtue of the act of assembly,. her real estate is converted into personalty, and placed under the absolute power of the husband, though the recogsance be in their joint names. That there should be no au-j, thority .in the Court to secure a reasonable settlement for thei wife, out of her own estate, is much to be regretted. Cer-| tainly, then, there is no cause of complaint, if the small chance]!/ of preserving her property, by survivorship, is preserved tq her. The circumstance of divorce is of no importance: bej cause the husband did no act, after the divorce, which can have any effect on the case. What his rights were, over this property, after the divorce, or whether he had any rights, it' is not necessary to consider. We shall decide it as the case of a man who, having acquired, jointly with his wife, the right to a chose in action, dies, without having released or assigned it, or-reduced it to possession. For the reasons which íhave given, I am of opinion that it does not go to his administrator, but to his wife, who survived him. The judgment of the Court of Common Pleas must, therefore, be reversed.

Yeates J. was sick and absent.

Gibson J. concurred.

Judgment reversed.  