
    Dearin v. Fitzpatrick.
    CHANCERY. Husband and Wife — Wife's Equity. It is a well established equitable right of a wife, known by the name of the ‘-Wife’s Equity,” — to have settled, upon her and her children, a suitable provision out of her personal estate in the hands of a trustee; as, for example, in those of an executor or administrator. 5 Johns C. R. 464.
    SAME. How enforced. This equity will be enforced by decreeing the provision; I — -incidentally, when the husband or his assignee is asking the aid of a court of equity to reduce her property into possession; 2 — directly, at the suit of the wife, or of hertrustee, payingfor the provision; 3 — in case the trus? tee is willing, or designs to pay or deliver the property to the husband or his assignee, without suit, all of them will be enjoined, at the suit of tlie wife, from changingthe possession until provision made.
    SAME. Reduced into possession. But no case has gone so far as to decree the provision after the husband or his assignee had reduced the properly into possession.
    The complainant, Polly Dearin, wife of John Dearin, with whom she intermarried in 1801, was the daughter of John Wilks who died in 1829, leaving a widow and children and grand children. Before his death he had made his will, in which were the following clauses.
    “I leave unto mv beloved wife all iny property of every name and grade during her natural life. My will is, that at the decease of my wife, all said property and effects be equally divided between my children and grand children as herinafter named; to wit, Polly Dearin,” &c., naming eight legatees.
    H'is widow was 72 or 73 years old at his death. In 1833, John Dearin complainant’s husband sold her interest in her fathers estate to the defendant Morgan Fitzpatrick for $385; and there was then a written assignment thereof executed, in which the complainant joined-her husband. The defendant becoming dissatisfied with that instrument, had another drawn up, which he applied to complainant and her husband to execute, and which they accordingly did execute on the 20th of February 1836. It is in the form of an indenture under the seals of Dearin and wife, and purports to convey all her interest in her fathers estate, being one eighth, thereof, in consideration of $385 paid to them by the defendant. This instrument was proved and duly registered in Maury county.
    When it was executed Mrs. Dearin was sick and confined to her bed and expressed an unwillingness to sign it, and did it only after asking if her husband had already signed it, seeming to think that if he had signed it was useless for her to refuse her signature. Afterwards, however she expressed herself satisfied with what she had done, because her brothers had entered into a litigation about the estate by which she apprehended would be wasted.
    In February 1837, Jane Wilks, the widow of the testator, died; and the legatees and their assignees, shortly afterwards agreed upon a division of the testator’s estate amongst them. The share of each in the property then in hand was found to be 912 dollars and 50 cents. To Fitzpatrick a negro named Bob, valued at 900 dollars was assigned, and the residue was paid him in money. This was all that was allotted to him; though there still remained undivided some property, which the executors had not collected at the time of the division and also some property, being the increase of the estate while in the hands of the tenant for life, Jane Wilks.
    
      About the 7th of April, 1837, Mrs. Dearin filed this bill in the chancery court at Shelbyville, whence the cause was, by consent of the parties, afterwards sent to the chancery court at Columbia, against her husband, and Morgan Fitzpatrick, and John and William Wilks, executors of her father’s will;~charging that her signature to the assignment of February 20, 1836, had been obtained by fraud and undue influence over her while sick; that no provision out of her fathers estate had ever been made for her; that said assignment purported to transfer to Fitzpatrick all her interest in the testators estate, some of which still remained in the hands of the executors; and praying that said assignment might be declared void; that Fitzpatrick might be decreed to reassign her legacy to a trustee to be appointed by the court, upon the repayment to him of the sum advanced by him to her husband and interest thereon; that the negro Bob might be delivered up; that the executors might be enjoined from paying over to Fitzpatrick any further portion of the testators estate; and decreed to deliver up Bob, or pay over his value; that an account of her share of her father’s estate might be taken, and for general relief.
    On the 27th of July, 1837, Fitzpatrick answered. He denied the fraud and misrepresentation charged to have been used by him in procuring the complainant’s signature to the assignment; insisted that the sum paid by him to Dearin for his wife’s share of her fathers estate was the full value of the expectancy at the time of the purchase; stated that the negro Bob and twelve dollars and a half had been allotted to him as his entire interest in the estate of John Wilks, and disclaimed any interest in the remainder of it.
    The other defendants filed their answers, from all which and the proof, the cause appeared as it is above stated.
    On the hearing on the 22d of September 1838, before chancellor Bramlitt, he was of opinion that the assignment was void; and he accordingly pronounced a decree annulling it, and directing that the negro should he surrendered up to the complainant on payment to Fitzpatrick of the sum paid Dearin by him with interest, deducting hire. And he referred it to the Clerk & Master to take and state the necessary accounts to carry this decree into execution.
    January 30.
    The defendant, Fitzpatrick appealed in error.
    Nicholson for the complainant
    said, the facts stated in the* record present the question, whether the assignment by the husband of complainant of her interest in a legacy accruing during coverture to a purchaser for valuable consideration will be declared void?
    In the determination of the question it can make no difference that the complainant joined with her husband in making the assignment. To bind the wife by her consent to her husband’s receiving her property she must be in court or lessee commissioners for the purpose; M^Elhalton vs. Howell and others, 4 Hay. 19; Ves. Jr. 500; 3 Cow. 599.
    But if the rule were otherwise, the proof in the case shows that her consent was procured under circumstances glaringly fraudulent. She was on a sick bed, was even propped up to-sign her name — was too weak to sign it and her husband did it for her, telling her the law required her to execute it. The conveyance then operates only as if executed by her husband alone, and presents the question, whether such a conveyance is valid and defeats the wife of her right to an equitable settlement.
    1. By the common law marriage amounts to an absolute gift to the husband of all the goods, personal chattels, and other personal estate, of which the wife is actually or beneficially possessed at that time in her own right and of such others as come to her during her marriage. 1 Hop. Husb. & Wife 169; Com. Dig. Bar. &Fem. E. 3; Clancy on Mar. Worn. B. 1, c. 1 p. 1 to 3.
    But to her choses in action the husband is only entitled when they are reduced into his possession during her life; 2 Rop. Husb. & Wife 204; Clan. Mar. Worn. 3 to 9, 442; 2 Atk. 430; 10 Ves. 90.
    If the husband can obtain possession of his wife’s choses in action, without the aid of a court of chancery, he will be permitted to do so. 2 Story Eq. 632; 3 Cow. 599. To this rule there is one class of cases which form an exception— to wit, legacies to the wife, in which a court of equity will restrain the husband from proceeding at law until he will make a suitable provision for her. 2 Story 632; 4 Hay 25; Clancy Mar. Worn. 443, 464.
    It matters not whether the application for the property be made by the husband, or his assignee for valuable consideration; the personal property of a feme court which is under the protection and control of a court of chancery, cannot be taken from her without her consent in open court, or by a suitable provision made for her, — 3 Cow. 606, where all the cases are reviewed and this conclusion drawn as a rule established beyond dispute.
    The equity of a wife will not only be enforced in regard to her dioses in action and equitable interests against the husband and his assignees where they are plaintiffs, but it will also be enforced when she brings a suit in equity for the purpose of asserting her equity. 2 Story Eq. 642, and cases cited.
    The principles here laid down establish the right of the complainant to come into a court of chancery to enforce her equity out of the legacy bequeathed to her by her father; and so far as that portion of the property is concerned, which has not been reduced into possession by her husband’s assignee they are conclusive.
    But it may be urged that as to the nogro, the assignee has reduced him to actual possession and thereforre that her equity as to him is gone.
    In answer to this position complainant insists, that her husband’s assignee took nothing more by his purchase than the right which her husband had, Clancy 504, and that her husband’s right was burthened with the condition annexed to it by law, that she was to have her equitable settlement out of the legacy, Clancy 464, 441. His assignee took the assignment with the same burden. Her husband could not have reduced the property to possession without her consent, except upon the condition of taking it as trustee for her benefit and subject to her equity. Had lie filed Iiis bill against her father’s executors for the property she must necessarily have been joined with him in the bill and the court would then have protected her rights. Her husband’s assignee could not have proceeded by bill to gain possession of the property without joining her either as plaintiff or defendant, in either of which cases her rights would have been protected; for it cannot be possible that her husband could convey a greater right than he himself possessed.
    The property was en masse in the hands of the executors as trustees; — the will required it to be divided into eight shares;— the legacies were not specific but general. By our laws there was but one course for the legatees to obtain a division and distribution — that was by bill in chancery, — the property was exclusively under the control of the court and could not legally be withdrawn from its control, except by application to the chancellor. In this application complainant must necessarily have been a party.
    It would indeed be an anomaly if her husband’s assignee without her consent and without notice to her could enter into such an agreement with the other legatees as would wrest from the court its control over the property and defraud complainant out of her right to a provision.
    The circumstances under which the possession was obtained show a design to defeat her equity — the life estate of her mother terminated in April, and in May the legatees together with her husband’s assignee and the executors meet together and make a division of the negroes without notice to complainant, and in disregard of the fact that part of the legatees were minors. This proceeding can be viewed in no other light than as a fraud upon complainant’s rights, and as an attempt to defeat her equity by a hasty reduction of the property into possession. Besides, although the assignee obtained actual possession of the property, yet his title was incomplete, as both executors have proved that they never assented to the legacy. It is clear that if complainant had had notice of the intended division she could have applied to the chancellor and restrained the parties — it follows that a division made without notice on her part and contrary to law, must be null and void so far as the same was calculated to affect her right.
    The argument thus far has been made upon the supposition that the interest assigned by complainant’s husband was an immediate interest subject to present enjoyment — that it veas a legacy which the assignee could reduce into immediate possession. This was not however the case — it was a revers-ionary interest subject to be enjoyed only after the death of complainant’s mother. Her father died in 1829 leaving his property to his wife during her life, and after her death to be divided. In 1836 previous to her death the assignment was made — it was the assignment of an interest to be enjoyed after the termination of a life estate.
    There is one other view of this case which is relied upon in support, of the decree made below. It is the doctrine of courts of equity, as to constructive frauds, in what are called catching bargains with heirs, reversioners and expectants on the life of their parents, or other ancestors.
    In cases of this sort, courts of equity have extended a degree of protection to the parties, approaching to an incapacity to bind themselves absolutely by any contract, and as it were reducing them to the situation of infants, against the effects of their own contract. Hence it is, that in all cases of this sort, it is incumbent upon the party dealing with the heir expectant or reversioner, to establish, not merely that there is no fraud; but to show that a full and adequate consideration has been paid; for mere inadequacy of price is sufficient to set aside the contract. The court will relieve upon a general principle of mischief to the public, with out requiring any particular evidence of imposition, unless the contract is shown to be above all exception. 1 Story’s Eq. 329, citing 16 Ves. 512; 17 Ves. 20; 2 Atk, 28; 2 Ves. 149.
    In Shelly vs. Nash, 3 Mad. R. 232, Sir John Leach uses this strong language, “In more modern tim.es, it has been considered, not only that those who were dealing for their expectancies, but those who were dealing for actual remainders also, were so exposed to imposition and hard terms, and so much in the power of those with whom they contracted, that it was a fit rule of policy to impose upon all who dealt with expectant heirs or reversioners, the onus of proving that they had paid a fair price; and otherwise to undo their bargains and compel a reconveyance of the property purchased.” In the present case, but two witnesses speak of the value of the complainant’s interest at the time of the purchase; one says, that $385 was a fair price, and the other says, that at no time since the purchase was the boy Bob worth as little as $ 400. The former witness, admits that he had purchased the share of another feme covert for $400; his opinion therefore is that of an interested witness, and the defendant has failed to prove that he gave a full and fair price.
    The principles applicable to reversionary choses in action and other reversionary equitable interests of the wife are the same with those laid down as applicable to choses in action, subject to immediate enjoyment, except that they are applicable in the former cases in a manner more favorable to her rights than in the latter. 2 Story’s Eq. 040.
    It is laid down explicitly in the authority just quoted, that “no assignment by the husband, even with her consent and joining in the assignment, will exclude her right of survivor-ship in such cases. The assignment is not, and it cannot from the nature of things amount to, a reduction into posses; sion of such reversionary interests; and her consent during tlie coverture to the assignment is not an act obligatory upon her. Nay, in such a case, the wife’s consent in court to the transfer to, or by her husband, of such reversionary interest will not be allowed. That consent is not acted upon by the court, except where she is to part with her equity to a settlement, or with her own present separate property; but never for the purpose of parting with her reversionary property, or with the right of survivorship.” These positions are sustained by a numerous class of cases cited at page 641 of Story’s Eq.
    F. B. Fogg, for the defendant,
    said, the bill cannot be supported. The husband had a clear right to assign; for the assent of the executors to the legacy to the tenant for life, was an assent to the provision in favor of those in remainder. 4 Dev. Rep. 81; 1 Roper, 550, 570; 6 Paige, 866; 2 Story’s Eq, 641-9.
    The husband and wife are both living, he is in good circumstances, and there is no complaint of his conduct. There js no fraud; and the only witness who testifies about the value of tlie property in 1833, says it was worth $400, and defendant gave $385. If the property had been lost or destroyed, if the negro had died, the loss would have been that of defendant.
    February 4.
   Green, J.

delivered the opinion of the court.

In this case, the negro in controversy, being part of a legacy left complainant by her father, was reduced into possession, during her coverture, by the defendant as assignee of her husband. The assignment, by the husband, was for a valuable consideration, without any pretence of fraud as to him, and, to say the least, vested the assignee with all the rights which the husband possessed.

Had the husband, by agreement with the other legatees, made a division of the estate, and received this negro as his part of the estate, there is no doubt, but that such division would have been legal, and would have vested in the legatees an exclusive right to the portion allotted to each. It is true, had any of the legatees refused to consent to a division; it could not have been procured but by application to a court of chancery. In such case, before the husband, or his as-signee could have obtained the complainant’s portion of the estate, the chancellor would have made a suitable provision for her. 2 Story’s Eq. § 1403, et seq.

This was, formerly, as far as the courts would go in favor of a wife’s equity for a settlement out of her equitable interests. But it is now settled, that, whenever she is entitled to such settlement against her husband or his assignees, she may assert it by bringing her bill to enjoin the husband or his as-signee from reducing such property to possession, until provision shall be made for her. So that there is no distinction founded upon the mere consideration — who is plaintiff on the record. 2 Story’s Eq. § 1413; Clancy on Rights, 471 to 475.

But no case has ever gone so far as to entertain a bill, by the wife, for this purpose, after the property has been reduced into possession by the husband or his assignee. This would be attended with infinite embarrassment and mischief. If it could be done at all, it might be done years after the possession had been acquired, when the character and value of the property may have greatly changed; and after the wife seeking this relief, had contributed to consume the consideration which the assignee had given her husband for her estate.

.Note. Perhaps, chancery ought, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife's personal property in action, unless he make a competent provision, . . Chancery will restrain the husband from proceeding in the ecclesiastical courts for the recovery of the wife’s legacy, until a provision is made for her; and upon that doctrine a suit at law for a legacy or distributive ship-e, ought equally to be restrained, for such rights in action are of an equitable nature, and properly of equitable cognizance. . : If the husband can acquire possession of his wife’s property without a suit at law or in equity, — or* by a suit at law without the aid of chancery, — except, perhaps as to legacies, and portions by will, or inheritance, as has already been suggested, — the husband will not be disturbed in the exercise of that right. 2 Kent’s Com. 139 tó 142, 3d ed*

We therefore think that the complainant is not entitled to the negro in controversy, by way of settlement to her separate use. It is stated in the bill, that the negro does not constitute the entire legacy, to which the defendant claims title, under the assignment; and that a portion of complainant’s part of her father’s estate, remains to be reduced to possession. But the defendant, in his answer, disclaims any right to receive any thing further under the assignment, and alledges, that he has received the negro in question as his entire share. Upon this subject there is no- testimony, so that, in this suit, no decree can be made respecting it.

Let the decree be reversed-, and the bill dismissed with costs.  