
    Thomas, &c. vs Kennedy.
    Chancery. Case 46.
    
      October 20.
    Case stated and facts agreed on in the Circuit Court, and its decree.
    Error to the Madison Circuit.
    
      Reversion. Husband and wife. Settlement. Equity.
    
   Chief Justice Ewing

delivered the opinion of the Court. — Judge Beech did not sit in this case.

Upon the petition of a part of the heirs of William Hume, deceased, and Joseph Kennedy, who claimed by purchase from her husband, the interest of Nancy Thomas, one of the heirs of the deceased, the Circuit Court of Madison decreed that two slaves which had been, allotted to the widow as dower, who had died, should be sold for the purpose of a division, and appointed Simeon Hume a Commissioner to sell. Upon the coming in of the report showing the sale, Nancy Thomas claimed that share of the proceeds which was claimed by Kennedy, as a purchaser from her deceased husband. Kennedy moved for a rule against the Commissioner to pay the amount to him, and Mrs. Thomas resisting the payment and claiming that the same should be settled on her; with a view1 to a speedy adjustment of the matter, Mrs. Thomas, by consent of all parties, was made a defendant in the case, and as such was, by like consent, to have the same opportunity, and with the like effect, to resist the motion of Kennedy and the execution of the decree aforesaid, and with all the rights that she could have or obtain by any other proceedings in the case, and thereupon the following facts were agreed: “that the said Nancy Thomas was the daughter of William Hume, deceased, who died intestate, and was, at the time of bis death, the ohmer of the two slaves in the petition mentioned; that after his death, they were allotted to his widow as dower, which she held as such till her death; that after the death of William Hume, said Nancy intermarried with Joel Thomas, who, during the lifetime of the said widow, for value received, sold and assigned the interest of his wife, said Nancy, in and to the said slaves so in the possession of the widow, to Joseph Kennedy, and died insolvent, in the lifetime of said widow, leaving his wife, Nancy, unprovided for, and in destitute circumstances; that said William Hurtre left several heirs as mentioned in the petition, who have an undivided interest in said slaves and in the proceeds of their sale.” Upon these facts, Nancy Thomas resisted the payment to Kennedy, and claimed that her share should be paid over to her. But the Court overruled her application and ordered the payment to be made to Kennedy, and sh'e has appealed to this Court.

Though the husband may transfer and assign the reversionary interest of the wife in a chattel, yet if before possession had by the assignee, the husband die insolventand leave the wife destitute and unprovided for, and the Chancellor’s interference be invoked in aid of the assignee, he will, at the instance of the wife, withhold it and regard the equity of the wife to a settlement as superi- or.

It appears from the facts agreed, that though Nancy Thomas had an undivided reversionary interest or interest in remainder in the slaves, which accrued to her when sole, and never came to the possession of her husband, in his lifetime, nor could be reduced to possession. That this interest would have survived to the wife had it not been sold and transferred for a valuable consideration, is abundantly established by the authorities.

But it has been long a vexed question, whether the husband may or may not defeat the wife’s right of survivorship by an assignment of her interest for a valuable consideration, as he may defeat her right of survivorship by an assignment of her chose in action. Able authorities are arrayed on both sides of-this question, and it is regarded at this day as not fully settled: 1 Roper on Properly, from 234 to 251, and the authorities referred to; Clancy on Rights, from 140 to 150, and the authorities referred to; 2 Story's Equity, from 631 to 641, and the authorities cited; 2 Kent’s Commentaries, from 136 to 143, and the authorities cited. Roper advocates .the power of the husband to defeat, by assignment, the right of survivorship of the wife, and Clancy, with eminent ability, controverts his right. And our conclusion upon the whole matter is, that the current of modern decisions is against the power of the husband. But this Court, in the case of Meriweather vs Booker and wife, (5 Litlell, 258,) determined, without much apparent consideration or research of authorities, that the husband might bar her right by a sale of her interest in remainder in slaves. And a dictum to the same effect is to be found in the case of Upshaw vs Upshaw et al. (2 Henning and Mun. 389.) We do not deem it necessary, in this case, to overrule or affirm the principle settled in the former case and intimated in the latter. Conceding it to be the settled rule of this Court, as a naked principle¡ under which the assignee might shelter himself against the claims of the wife, if he could get the possession of the reversionary interest before he was arrested in his pursuit of it, yet we cannot concede, that if he has never obtained the possession, and a Court of Equity has obtained jurisdiction and control over the interest or the proceeds, that the assignee will be allowed to receive it, against the claim and equity of the wife, to have a settlement and provision made out of it as her own patrimony, for her maintenance and support, especially when she has been left, as she has been in this case, by an insolvent husband in a destitute condition. If he takes it, freed from the wife’s legal right of survivorship, by virtue of the assignment, yet he takes it subject to the wife’s equity in if for her support. He takes it as the assignee of a chose in action takes, freed it is true from the wife’s legal right of survivorship, but subject to her equity for a settlement. And whenever, in either case, the subject is brought within the cognizance and under the control of a Court of Equity, her equity to a provision will be regarded as paramount and superior to the claim of the assignee. Indeed, in such a case, the wife’s equity would seem to present stronger ground for relief against the assignee of her reversionary interest than against the assignee of her chose in action. In the latter case, the claim assigned is susceptible of being reduced into present possession, and such assignment has been deemed a constructive reduction to possession by the husband. But in the former case the thing assigned is incapable, from its condition, to be reduced to imme^ diate possession, and no constructive possession can be implied ; and as the right of the husband to his wife’s personal chattels is made to depend upon his acquiring either actual or constructive possession of the same, during his life,' the equity of the wife to a provision out of her reversionary interest would seem to stand upon higher ground than out of her mere chose in action. And it is made to stand upon higher ground according to the more modern decisions: 2 Story’s Equity, 640, and the authorities cited; Clancy on Rights, from 144 to 150, and the au-, thorities cited.

Such assignee takes the reversión fund from the wife’s legal right of survivor-ship, but subject to her equity to have a settlement, which the Chancellor will, at her instance, enforce.

Caperlon for plaintiffs:

Turner for defendant.

As the wife’s interest in the proceeds of the sale of the slaves falls short of acompetentprovision for her, the whole amount should have been decreed to her. The order of the Circuit Court, directing the appellant’s interest in the-proceeds of the sale to be paid to Joseph Kennedy, the assignee of her husband, is therefore, reversed, and cause remanded, that a decree may be rendered directing the payment of the amount to be made, to Nancy Thomas, the appellant, and she is entitled to her costs in this. Court.

The instructions given by the Circuit Court,

Instructions refused by the Circuit Court.

A Sheriff, by virtue of levy of an executiononpersonal property,is entitled to exclusive possession thereof

A Sheriff’s right to the exclusive possession of property levied on, is notimpaired by his going out of office; nor are his powers and duties in relation thereto in any manner changed.

If property be takenfromthepossession of the Sheriff by writ of replevin, yet if the decision on that writ be in hisfavor,itishiS duty to obtain the possession, sell the property and pay off the execution, tho’ his term of office has expired.

One officer has not the right to levy on property already levied on, and in possession of another officer, or whilst in the possession, in iact, of a third person, who obtained it from the officer making the first levy by writ of replevin.  