
    *Jacob Durr, surviving Executor of John Durr, and Josiah Pendarvis v. William Bowyer, Administrator of Jacob Durr, and Henry Rhodes and Wife, and Others.
    The wife’s equity, when secured on her. The wife’s equity will not be suffered to be removed from the reach of the court, until an adequate provision is made for her, or on her personal examination she waives it.. The rule applies to creditors claiming through the husband either by voluntary assignment or by bankruptcy. The court will take care of the wife’s interest, no matter by whom the application's interposed in her behalf. Her equity may be superceded by a sufficient provision made out of another fund. The wife must surrender her equity upon private examination, and voluntarily. A bill will not lie by a surety to an absent administrator (from the State,) against a debtor of the absent administrator to recover such debt in payment for what the surety had been compelled to pay. A creditor cannot pursue the debtor of his debtor for satisfaction of his demand.
    Henry Rhodes administered on the estate of Jacob Rhodes who died intestate, and Josiah Pendarvis one of the complainants, and Jacob Durr the intestate of the other complainant were sureties to his administration bond. Henry Rhodes committed a devastavit on the estate of Jacob Rhodes, and the complainants his sureties were sued at law, and judgment obtained against them for the deficiency in that administration. Henry Rhodes intermarried with Mrs. Durr, the widow and administratrix of Jacob Durr, and removed with her to the western country, without having received lier portion of her former husband’s estate; upon which her administration on the estate of Jacob Durr was revoked, and administration de bonis non granted to the defendant Bowyer.
    The bill prayed a discovery of the distributive share of the ¡present Mrs. Rhodes in her late husband Jacob Durr’s estate, now in the hands of the defendant, and insisted that the marital rights of her husband had attached, and prayed that the court would order it to be paid over to the relief of the complainants.
    The answer admitted all these facts, but alleged that the marital rights had not attached, and insisted that if the complainants were entitled to relief, it could only be after an account had been taken of Mrs. Rhodes’ administration, and that provision should be made by way of settlement for her benefit. The answer also stated that the defendants had had notice of an assignment of this ^interest by Rhodes and wife to one Carr. This notice had been given them since filing the bill.
    Thompson, Chancellor.
    I am of opinion that the com plain at; ts are entitled to relief. Their claim is a just one in law, and much favored in this court. The marital rights have so far attached as to render the property liable for the debts of the husband ; and whatever might have been the question, if the wife or husband were dead, as to how far those rights had attached or vested, that question is not now presented, nor forms any obstacle to the relief prayed. A settlement or provision for the wife is not a matter of absolute right. Yet it is one that is generally regarded where a husband is claiming the portion of a wife, whom he married when a minor, or when he is asking the aid of this court to place him in possession of a legacy, or right accruing after marriage ; hut neither is the case in this instance. It is therefore ordered and decreed, that the defe.nda.nt Bowyer do account before the commissioner for his administration, so as to ascertain the distributive share of Henry Rhodes and wife in bis hands, after deducting what may be found due to that esta.te for her administration. And it"is further ordered, that the commissioner do report the moneys paid by, or for which complainants are liable as sureties of Henry Rhodes. And that the defendant do pay over to the complainant that amount if it does not exceed the proportion of Henry Rhodes and wife in his hands.
    
      The defendants appealed on the ground that the marital rights of Henry Rhodes had not so far attached as to preclude the wife’s equity from being settled on her, and that his honor should have ordered such a provision.
    b’eb- 1827. *W. H. DeSaussure, for the appellants. Henry Rhodes had not reduced the interest of his wife in the estate of her husband into possession. It was a thing still in action, and the principle is clear, that the wife’s equity still remained, and the court will not permit the fund to pass into the hands of the husband, or those claiming through him without providing for her. 2 Nott & M’Cord, 147. 3 Desaus. Rep. 135. Ex parte Elms, 3 Des. 155. Clancy’s Rights of Married Women, 190. The court of equity is so tenacious of this right of the wife, that even in case of a commission of bankruptcy, which subjects the property in right of the wife to payment of debts, without providing for the wife, Clancy, 229, 236, 250, if the husband voluntarily assign this interest, the court will not aid the assignee te> obtain possession of the fund without a provision for the wife, although he paid a full and valuable consideration. Clancy, 260. Light v. Beresford, 3 Ves. 506. 1 Mad. Cha. 385. 4 Bro. C. C. 138. The same doctrine is laid down in the New Vork authorities. Kenney v. Udal, 5 Johns. Cha. Rep. 464. In the case of M’Pike v. Hughes, decided by the court of appeals in 1817, the court provided for the wife in opposition to an assignment by the husband fora full and valuable consideration. This, however, is an application at the suit of a creditor who has no assignment or lien, and it is very clear that he has no right to be relieved, and in the case of Forbes v. Phipps, 1 Eden’s Rep. 506. Clancy, 287, Lord Northington dismissed a bill at the suit of a creditor.
    Martin, contra.
    The case cited from Eden is not analogous. That was an application on the part of a creditor of the husband to be paid out of a fund settled on the wife. The general rule, that the court will not aid the husband, or those claiming through him, in getting possession of the wife’s fortune without providing *for her, is admitted; bat it is apprehended that the rale is applicable only to certain cases of peculiar equitable cognizance. In this case, a resort to equity was only necessary in consequence of the .accidental circumstance that Rhodes and his wife had removed from the State. A conclusive answer to the whale argument is, that this is not a right now claimed by the wife. Neither she nor her husband have answered. The administrator, Bowyer, volunteered this claim, and for anything that appears she is already provided for. She asks nothing from the court. The whole of this doctrine is opposed to the feelings and habits of the people of this country; and however the coart may feel bound to give effect to the established rule, they will not be disposed to extend it. A husband may sell or assign his wife’s interest in property not reduced to possession, or assign her chases in action; and sureties are always as much to be favored as any other class of creditors. 10 Mad. 163. Toller on Ex. 83.
    DeSaussure, in reply.
    The case from Eden was not, as the counsel supposes, a claim to charge the estate settled on the wife, but to get possession of a sum due to the wife by bond, before marriage. It is not indispensable that the wife herself should interpose her claim. An executor, trustee, or any one else, may interpose and the court will aid her in whatever way the court may get possession of the fund. Clancy, 197. Kennedy v. Udal, 5 Johns. Cha. Rep. 464.
    March, 1827.
   Curia, per Johnson, J.

The defendant Henry Rhodes became indebted to complainant in the manner which has been stated. His wife, the defendant Mrs. Rhodes, is entitled to a distributive share of the personal estate of her deceased husband Jacob Durr, and the object of this bill is to charge this fund in the hands of William *Bowyer, his administrator, with the payment of that demand, By the common law all the chattels which belonged to the wife before marriage, or to which she becomes entitled in her own right, are vested in the husband absolutely, with respect to things in possession, and he may dispose of them as he pleases; but with respect to things in action, although the right to reduce them into possession is by law vested in him, the courts of equity have built up a system founded in good sense and common justice, which is intended to secure to the wife a suitable provision for her support and sustenance. The interest which the wife has in dioses in action which belonged to her at the marriage, constitutes what is technically called the wife’s equity; with respect to which it may be laid down as a general rule that if it be within the reach of the court, as if it is vested in trustees, or has been paid into court, or in any other situation which brings it within the control of the court, it will not be permitted to be removed out of that jurisdiction until an adequate provision is made for the wife, unless she has been already sufficiently provided for, or on her personal examination she thinks proper to waive the benefit of this protection. M’Cauley v. Phillips, 4 Ves. 17. Clancy’s Rights of Married Women, 188, 9.

The same protection is afforded to the wife in opposition to others claiming through the husband, whether their claims arise by operation of law, as in cases of bankruptcy or insolvency, Mitford v. Milford, 9 Yes. 87, or under the voluntary assignment of the husband, and that for a valuable consideration. 1 M’Cauley v. Phillips, 4 Ves. 17. Kenney v. Udal, 5 Johns. Cha. Rep. 464. M’Pike v. Hughes, decided in the court of appeals at Charleston in 1817.

For the purposes of the case under consideration, it might then be conceded that the complainants have all *the right which the husband could confer in this fund, and yet it does not follow that they have a right to have their demand satisfied out of it. The fund is by their bill brought into the jurisdiction of the court. The wife’s equity is unimpaired, and the court will not assist the complainants until the wife is provided for.

But the case itself is much stronger. The husband has never reduced this interest into his possession, nor has he done any other act by which he has acquired an absolute dominion over it. The complainants have no lien on, or interest in it, either in fact or in law; and if, as has been shewn, the wife’s equity is held so sacred that the husband himself will not be aided to deprive her of it, a stranger will not.

These positions and the conclusion drawn from them have not been controverted in the argument; but it is said they are inapplicable, because this claim is not now set up by Mrs. Rhodes herself, but is volunteered by the defendant Bovvyer, and that the court cannot know but that she is already sufficiently provided for, and in that event her equity would not attach. Here it may be necessary to remark, that although Rhodes and wife are parties, defendants to the bill, they reside without the State, and have never been served with process, and for anything that appears, are in fact ignorant of these proceedings, and reasoning a priori it would be subversive of the rule itself, -if the court should dispose of her rights without having previously ascertained that she was otherwise provided for, as the constraint which the husband has in his power to impose on her might wholly defeat it.

But it is very clear that the court will take care of the wife’s interest by whomsoever the application may be made, or by whatever means it is brought to the view of the court, whether by her trustee, executor or prochein *ami, or any other person in her behalf. Clancy, 179. Kenney v. Udal, 5 Johns. Cha. Rep. 464.

A married woman may, it is true, waive or surrender her equity: and there is no doubt that it may be superceded by a sufficient provision made for her by the husband out of another fund; but is incumbent on those claiming the benefit of such a state of things to show it; for it will not be assumed by the court, whose duty it is to guard against constrained and hasty relinquishments of this right. Clancy, in his Treatise on the rights of Married Women, p. 324, 5, remarks, that the courts of equity have found it expedient to interpose certain forms, and that it is the unvarying practice, that whenever the consent of the wife is required to waive this right, she must undergo a private examination, separate and apart from her husband, and that the court will not act upon it until it is by these means ascertained that the surrender is on her part perfectly voluntary.

Now there is in this case not only an entire want of the consent of Mrs. Rhodes to the appropriation of this fund to the object sought by the bill, but we have her dissent so far as Bowyer was competent to express it. Nor is there the slightest circumstance from which it can be inferred that she is otherwise provided for; and the court would be wanting in that care which it professes to cherish over the rights of persons thus situated, if the complainant should be aided in getting-possession of the fund.

The claims®of the complainants have heretofore been considered as founded on a right in themselves derived through the husband, and it has already been shown that even then they would not be entitled to relief. But in point of fact their real situation is not so favorable. They are strangers, creditors to the husband, who seek to have their demand paid out of the wife’s equity. They have in law no lien on fund, nor is it given by contract;* and it is difficult to conceive on what principle their claim proceeds. None, I apprehend, exists in law; and if it be a mere equity, it is opposed by the higher equity of the wife, and they cannot be relieved. The case of Mason v. Masters, cited by Lord Northington in Forbes v. Phipps, 1 Eden, 506, was exactly this case, and then Lord Northington dismissed the bill for want of equity. But let it be assumed, as the decree of the chancellor would seem to imply, that the legal right of the husband Rhodes had attached, and that the dioses in action in the hands of the defendant Bowyer had absolutely vested in him, and yet I think the plaintiffs could not be relieved. In that case the claim presented would be that of a creditor pursuing the debtor of his debtor for satisfaction of his demand. To this it might be sufficient to reply, that no case has been cited and none is furnished by the books, so far as I have been able to discover, where equity has relieved in such a case; and on principle I think it ought not, at least as a ground of equity jurisdiction. In cases originating at law, such a fund might be reached without the aid of the court of equity, by final process against the person, by which the defendant is compelled to surrender all his property, whether in possession or in action, to his creditor; and so he might by the final process out of chancery in a case originating there. On the ground of jurisdiction, therefore, equity would not entertain such a cause. In any possible view of this case the complainants are not entitled to the relief sought. Their bill is therefore dismissed with costs.

Nott, J.

I concur in this opinion on the last ground; but I am not prepared to say, that where a married woman is a party to a bill, and does not express any wish that the court should settle her property on herself, that *it ought to be withheld from the creditors of the husband upon the application of a stranger, without any inquiry being made whether it is by her authority or desire.

Decree reversed.  