
    *Sherrard et als. v. Carlisle.
    January Term, 1855,
    Richmond.
    Husband and Wife — Assignment of Wife’s Choses— Right by Survivorship, by Provision. — A assigns to B, for value, choses in action claimed by him in right of his wife, but no further reduced into possession than by the assignment. A suit in chancery is instituted involving these interests, to which A and his wife and B are made parties, while the suit is pending, A’s wife files a petition therein, alleging a divorce from A, and claiming the whole fuftd.in court as a feme sole. About five years after the" filing of this petition, A dies, and some years thereafter, the court makes an order, directing a commissioner to report what would be a reasonable provision for the wife of A out of the fund under its control. The commissioner reports that the fund in court is small ($422), and that the whole of it would be a very inadequate provision for her. A’s wife then dies, and the suit is revived in the name of her only child, C, as her administrator, who also files a bill supplemental to her petition, and prays that the whole sum may be decreed to him, in right of his mother, who, he insists, was' entitled, either by survivorship to the whole, or to a settlement by way of provision out of it; and that the whole fund would have been a very insufficient settlement. Held :
    1. Same — Same—Same—Amount of Provision. — Without deciding whether the wife was entitled to the whole by way of survivorship against an as signee for value, or not — she is clearly entitled by way of provision (whether the marriage is ended by divorce, or death of the hushand, or not) against such assignee ; and the fund under the control of the court not being more than sufficient for that purpose, the whole ought to be decreed to her by way of provision or settlement.
    2. Same — Same—Same—How Right Asserted. — The wife may assert her right by survivorship or to a provision, by petition or by bill (Quíebe ; Can she do so by motion ? Thompson, J.) ; and though she claims in her petition or bill only by way of survivorship, yet she may be held entitled by way of provision to a part or the whole, according to the circumstances of the case.
    3. Same — Same—Same—Rights of Child — Supplemental Bill. — An order having been made before the death of the wife, for a report by a commissioner as to what would be an adequate provision for her — her child surviving is entitled, in her right, to whatever would have been decreed to her, and may assert his right to it by a supplemental bill.
    4. Appellate Practice — Objection in Lower Court.— Even if the proceedings in the Circuit Court (the petition and supplemental bill) be irregular, no objection can be taken to them in an appellate court, if not taken in the court below.
    *The facts of the case sufficiently appear from the opinions of the judges, particularly that of Gilmer, J. It was an appeal from the decision of the Circuit Court of Hampshire, by Joseph H. and Anna Sherrard, executor and executrix of John Sherrard, deceased, and Angus W. McDonald.
    Con. Robinson, for appellants:
    The claim of John Sherrard under the assignment of the 6th of April, 1835, from Jonathan Carlisle, of an interest derived through his wife Elizabeth, as one of the children of John Snyder, was, by her petition, sought to be avoided on the ground of the decree of divorce.
    By that decree the Court of Common Pleas of Bedford in Pennsylvania improperly interfered with the marriage relations existing between persons domiciled in Virginia, and for a cause, if any, which must have occurred in Virginia. The wife cannot be allowed to profit by her failure to file a complete transcript of the record. Had there been produced her libel stating the cause, the fact would very probably have appeared on its face, that it was a case over which the authorities of Virginia alone had jurisdiction; but whether it would or would not, the fact might be shewn, and is shewn in the Virginia record. It sufficiently appears that the parties were domiciled in Virginia, and according to the decree of the Supreme Court of Pennsylvania, in Dorsey v. Dorsey, 7 Watts, 349, as well as the other cases cited, p. 119, 120, of the new edition of Robinson’s Practice, vol. 1st, the decree of divorce made in Pennsylvania is a nullity. Story’s Conflict of Laws, ‘i 228. Not only was Jonathan Carlisle never domiciled in Pennsylvania, but he was never served with process in the suit for divorce. This appears on the face of the record by the returns of N. E. I. (non est inventus.) There was not therefore jurisdiction over the person, much less the subject matter. And for this reason also *the decree is absolutely void. See Robinson’s Practice, 1st vol. p. 219, ch. 46 of new edition.
    The divorce, even if valid, could not avoid a previous assignment made by the husband for valuable consideration of his wife’s interest in this personal subject. Jennings et ais. v. Montague, 2 Grat. 3S0, 353. The termination of the bond of matrimony by the divorce could give the wife no greater right than its termination by death.
    On these grounds the petition should have been dismissed with costs.
    Instead of this, the case was by consent revived against the husband’s administrator; the revival however was of the case made by the petition, and this alone. On this case thus revived, the court, without any new pleadings whatever, made an order of the 16th of September, 1847, directing a commissioner to enquire and report what would be a reasonable settlement upon Elizabeth Carlisle. Comparing the case made by the petition, with the case contemplated by this order, the order appears wholly irregular ; the pleadings had made no case to warrant it. If at this time the court had on such a petition made a decree directing a settlement, it would have been erroneous. It made no such decree; its order of this date adjudicated nothing. Its direction to ascertain what would be a reasonable provision for the wife was no more an adjudication that she would be entitled to such provision, than its direction to ascertain what was the consideration for the assignment, was an adjudication that the consideration would sustain the assignment. The decree directing these matters to be reported on, settled nothing.
    About the time the commissioner reported on them, the wife died; and her son then filed a bill called a supplemental bill to the petition; a proceeding as irregular as it is novel. Let the plaintiff be on as good a footing as if the petition had been a regular bill, still the case of Cheatham v. Bur-foot, 9 Leigh, 596, is decisive; *the supplemental bill can only be in respect of the same title stated in the original bill; there can in this mode be set up no change of interest affecting the questions between the parties — no right different or distinct from that asserted in the original bill. The right asserted in the original petition or bill being by virtue of the divorce, and of that alone, and being incapable of being sustained, that petition which should have been dismissed, can be no proper basis for a supplemental bill claiming by virtue of the wife’s survivor-ship ; that is a right different and distinct —a change of interest within the meaning of the rule laid down in Cheatham v. Bur-foot. And furthermore it does not appear that the bill is hied in a representative character as administrator of the wife; on the contrary, it is in the name of her son individually — as her only child.
    But suppose the claim of the son be considered on the merits. He is met first by the rule, that when the wife has a present interest in personal property, and the husband makes a particular assignment of that interest for valuable consideration, though the thing assigned be no farther reduced into possession during the coverture, the title of the particular assignee will be good against the wife surviving; a rule recognized as correct in Browning v. Headley, 2 Rob. 340, 41, after a full argument of counsel, a report of which the court can examine. The same rule is recognized in the most recent English case on the subject. Tidd v. Lister, 17 Eng. Law & Eq. 560. Whether the amount or value of the subject be definitely ascertained or not, is immaterial as it regards the principle of the decisions in this class of cases.
    If it be said that against the assignee of the husband for valuable consideration, the wife has an equity to a settlement, the answer is, that there is no longer a wife to be provided for; for she has died; and the equity which the wife, if alive, would have had, is not to be enforced on behalf of a son against his father’s assignee — a son who, according to his own account of *himself in his bill, is under no necessity to require such provision — a son who has attained manhood and tells us that his mother resided with, and was supported by him.
    And yet on such a bill filed by such a son, the court has made the decree, giving to him the amount claimed by way of settlement, by his mother. It is a decree in disregard of the rule long established, that the right to a settlement is personal to the wife. Scriven v. Tapley, Amb. 509. Sir Thomas Plumer, after examining all the authorities, concludes that the children have no right, independent of contract or a decree. Lloyd v. Williams, 1 Madd. C. R. p. 450, 467 of Eng., p. 248, 252 of Am. edi. Upon this point, Mr. Bright considers the law as settled. 1 Bright’s Husband- and Wife, p. 242, | 1 to 5. Nor is the death of the husband at all material. It is enough that there is an assignee for value; he has •those rights which the husband would have •had, if he had survived the wife and made no assignment.
    Here, clearly, there was no contract under ;which the child can claim. And it has already been shewn, that there was no decree declaring the distributive share of the ■wife, to be subject to a provision in favor of her and her children; none directing a settlement upon her and her children ; there was at most but an order for an enquiry by a, commissioner which adjudged no right, •directed no settlement, settled nothing, and ; which, if it had attempted to settle any thing on such a petition, would have been erroneous, and liable for that cause to be reversed.
    Mr. Bright states (p. 243),- that in one case, Steinmetz v. Halthin, 1 Glyn & J. p. 64, the right of the children was considered as attaching on the institution of a suit relating to the trust fund; but he adds that “this case, which was contrary to the authorities previously existing on the subject,, has been over-ruled by the case of De la Garde v. Lempriere,” 6Beav. 344. Lord Langdale there decides that the equity does not on the ^filing of the wife’s bill attach for the benefit of the children. The case of Steinmetz v. Halthin being overruled, it is needless to enquire ■how far the wife’s petition could be treated as a bill — how far her petition, claiming the subject on the ground of a divorce ending his marital rights, could be treated as a bill for a settlement of part of what he was entitled to under the marital rights.
    No case has ever gone the length of holding that such a proceeding as this would entitle a child to claim against the father or the father’s assignee.
    Lastly, even if the other grounds should fail, it is insisted that it is against equity to take from the assignee the whole of the subject. The record contains evidence, that during the coverture the husband was séized of a large quantity of real estate, in which the wife did not relinquish dower. In such a case, if the wife were alive, it is questionable whether she should have the whole. But where she is dead, on what principle of equity can the son claim the whole against his father’s assignee? The assignee should have at least the $150 which he has advanced, with interest from the 6th of April, 1835. If on that day the executor had paid to the husband the $150, that payment would have been good against the wi-fe or the son; neither of them could get more than the surplus. Is there any equity which entitles them to more, because the money was received by the husband, not from the executor, but from the assignee? The son who asks equity should be made to do equity. No decree in this cause can be deemed equitable, unless it gives to the as-signee at least the $150, with interest and costs.
    Patton, for appellee:
    The claim of Sherrard arose from an assignment made by Jonathan Carlisle to him, for the benefit of Angus W. McDonald in 1835. The assignment is special, of his interest “in the debt due from Okey Johnson, of Hampshire, to the estate of Dr. John Snyder, &c. ” *It makes no reference to the suit of Cockerell v. Johnson et als. It is not an assignment of his wife’s interest in her father’s estate. He assigns only his interest, derived through his wife in a particular debt; and it nowhere appears in the record, whether the balance afterwards reported as belonging to Mrs. Carlisle, arose from the debt of Okey Johnson, in whole or in part. This would be enough to defeat the claim now set up.
    But suppose it to be a fund arising from that source, and from that source alone— the decree cannot be . impeached upon any of the grounds taken by the other side.
    I. As to the objection to the validity of the divorce.
    1st. The bill (or petition) alleges the divorce, and no objection to its validity is taken below. The sentence of a court having general jurisdiction over the subject, can never be impeached in a collateral proceeding, on the ground that the circumstances — such as residence of the parties, and the like — in which the jurisdiction is to be exercised, did not exist in the particular case. Such objections can only be taken by an appeal from the decision, or when it is ex parte, by a citation before the court in which the sentence was pronounced. Fisher v. Bassett, 9 Leigh, 119. Burnleys v. Duke et als., 2 Rob. 102.
    The sentence of the court of Pennsylvania must therefore stand until reversed, and the Constitution of the United States requires that full faith and credit are to be given to the judicial proceedings of one State, in every other. We could no more impeach such a sentence of divorce in this collateral way, than if it were a sentence made in our own State. Whether therefore England has a right to disregard a divorce granted in Scotland, in a particular case, or not, there can be no doubt, that no court of any of the States can enquire into the validity of a divorce, pronounced by a court of another State, having jurisdiction of the subject. Our own Code authorizes our courts to grant a divorce *upon the application of a plaintiff residing within its jurisdiction, though the other party may reside elsewhere. (’Code, p. 472, ch. 109, (j 8.) Are we to understand that the sentences of our courts, in such cases, are invalid and void in all the other States?
    2d. But no objection was made in the court below to the validity of the divorce, and there is nothing in the record to show, that either or both the parties were not residents of Pennsylvania, when the proceedings were had.
    3d. It is possible (nay, probable), that personal service of the summons was not made upon Jonathan Carlisle. But when our own law recognizes the right to decree divorces, without personal summons of the defendant, are we to assume that a court in Pennsylvania has, contrary to law, rendered a sentence, without authority, by doing' the same thing? Deplorable indeed would be the condition of an unfortunate woman, if she could not be released from the bonds of matrimony with a dissolute husband, who abandons her and goes into another State. The authorities referred to in Browning v. Headley, 2 Rob. 358, from Story’s Conflict of Laws, show that in Scotland, Massachusetts, and New York, courts have authority to grant divorces against a party, no matter where he is residing at the time.
    4th. But suppose this was not enough, of what importance is it whether the divorce was valid or not? The death of Jonathan Carlisle, while the subject was still a chose in action, gave his wife surviving the same rights as the divorce would have done.
    II.1st. It is said the divorce, if valid, could not set aside an assignment already made by the husband, (and I suppose the objection has the same force in regard to the death of the husband; for the whole court in Browning v. Headley considered the death and the divorce as equally restoring the wife to the benefits of survivor-ship.)
    Jennings v. Montague, 2 Grat. 350, 353, is cited to sustain this position, but, I think it does not apply. *That was a case, not of an assignment of a chose in action not reduced into possession, but a case in which the husband’s right had become absolute, and a lien acquired by creditors of the husband, before the wife’s petition for divorce.
    2nd. But the point of the objection is, I suppose, that as by her bill (or petition), she claimed the whole property as by sur-vivorship, the court had no authority to decree a provision.
    This is of little consequence, as by the supplemental bill of her administrator, and only son, relief by way of provision was specifically praj'ed. But there is no force in the objection. She filed a petition or bill showing that her choses in action are claimed bj' her husband — she shows that she has been divorced from him; and before a decree is made, he dies. She claims the whole, not solely because of the divorce, and she asks for a decree for the whole. Assuming now that the court is not authorized to decree the whole, merely because of the divorce, what prevents it from giving her a part, or even the whole, because she is entitled to it by way of provision. Was it ever heard of before, that a party to a suit in chancery, because he cannot recover all that he claims, shall have no part of it; although the grounds of his claim clearly show him entitled to either a part or the whole, upon different modes of argument, but by force of the same facts? Such special pleading would not be tolerated in a case at law, either civil or criminal. Even in a criminal case, you indict a man for murder and convict him of manslaughter.
    III. As to the supposed irregularity of the supplemental bill.
    John S. Carlisle, already a party as administrator, and being also the only child of Mr. Carlisle, filed a supplemental bill in 1849 — not to assert a new title, but insisting on the original one, and presenting upon the footing of that original title, specifically and in terms, the alternative of partial relief, growing out of *the same title and the same rights. He claims as the only child of his mother, a part of the fund by way of provision, in the event that he is not entitled to the whole as her administrator.
    There is nothing in Cheatham v. Bur-foot, opposed to this. There an administrator de bonis non had filed an amended bill, asserting a title antagonistic to and independent of the original bill.
    Even in England — where the proceedings in equity are almost as technical as special pleadings in courts o’f law here — it seems to be settled, that where the wife is not entitled to the whole, but to a provision, and an order has been made for a settlement before a master, it devolves on the children, (1 Bright’s Husband and Wife, p. 243, 4 6,) and they are to assert it in the very mode condemned here; that is, by supplemental bill. It was obviously proper, then, that John S. Carlisle should have filed the supplemental bill or petition, so as to present the claim in both aspects and in both characters; as administrator and as the only child of his mother.
    But it is conclusive against the objection, that this special demurrer in chancery is made the first time -in the Court of Appeals; and that no objection was made in the court below to the form of the proceeding.
    IV. As to the merits.
    It is said, that where the wife has a present interest in personal property, and the husband makes a particular assignment of that interest for valuable consideration, though the thing assigned be no further reduced into possession, during the cover-ture, the title of the particular assignee will be good against the wife surviving. For this, Browning v. Headley is cited; but, I submit, it is no authority on the point. It was decided on this point by only two judges; or, rather, only two judges expressed opinions in favor of the right of a particular assignee. The case was very fully argued on reason and authority, and the weight of reason, and, I submit, the weight of authority, was against the doctrine. *The opinions of the two judges were founded on dicta in the English cases, and the case itself presents a curious illustration of the way in which law is made. The opinions referred to were founded on the idea that it had become the settled law in England; yet, at this day, in England, the doctrine is exploded, and I invoke this court to lend the weight of its authority against this initiatory step, taken in the wrong direction, in Browning v. Headley.
    
      Mr. Robinson cites Tidd v. Tester, 17 Bing. L. & E. Rep. p. S60, as having settled the doctrine in favor of the assignee. Hot so. The fund in that case was the profits of a life-estate accruing during the life-time of the husband, and to which, therefore, the husband had a right.
    The only right of the husband to the choses in action of his wife, is a right to reduce them into possession, and the as-signee of the husband can only acquire the same right under the assignment. These views are but the echo of the opinion of Sir Thomas Plumer in Perdew v. Jackson, 1 Russell, 19-20, in which it was admitted by counsel on both sides, in answer to a question from the judge, that no case had, up to that time, occurred in England, in which the assignee of a present chose in action had prevailed over the wife surviving.
    The wife’s right of survivorship, and to a provision, prevails against an assignee in bankruptcjq and against other general .assignees, by all the authorities; and her right to a provision prevails against a special assignee. Why, then, should not the right of survivorship likewise prevail against a special assignee, as well as a general assignee; or, in that case as well as in the case of a provision? (See a reference to Earl of Salisbury v. Newton, and Wight v. Morley, cited in Browning v. Headley, 2 Rob. 361.)
    But it is now settled in England, that such an assignment is void against the wife surviving. 1 Bright’s Husband and Wife, 86-87, and the cases there cited; Ashby v. Ashby, 1 Coll. 553; Elam v. Williams, 13 Sim. 309.
    *On this view, the decree ought to have been to John S. Carlisle, as administrator; but that is of no consequence to the appellant, nor is it an error of which he can complain.
    V. But if all this be wrong, and the court was only justified in recognizing this claim as a provision to the wife, it was clearly right, as already stated, to pay the whole fund to her son and administrator, John S. Carlisle.
    This case is much stronger than that of Browning v. Headley, in which the court gave the whole fund to the wife. Here, as in that case, the wife was compelled by the misconduct of the husband to get a divorce. There, the husband received, in right of his wife, and wasted, 14,000, and the fund decreed her by the court was certainly worth more than $1,500. Here, the husband received and wasted (and then deserted his wife) nearlj' $6,000, and the pitiful residue now to be disposed of is $422.
    Browning v. Headley, and the authorities there cited in New York and elsewhere, show that the court ought to have given the wife the whole fund, and four times as much, if it could have been obtained, against both the husband and the assignee for value.
    The very latest case in England has done | the same thing, and several other cases are there cited to the same effect.
    In re, Kincaid’s Trust, 17 Eng. E. & E. Rep. 396.
    
      
       See.monographic note on “Hushand and wife” appended to Cleland v. watson, 10 Gratt. 159, and foot-note.
      
    
   GILMER, J.

In the year 1815, John Snyder of the county of Hampshire died, leaving a will by which he directed (among other things), that all His estate in Virginia, real and personal, should be sold; and he bequeathed one-fifth part of the proceeds thereof to his daughter Elizabeth. The executors of the said John Snyder sold a portion of his lands to one Okey Johnson, and a balance of the purchase money remained unpaid in 1835. After the death of said testator, his daughter Elizabeth intermarried with Jonathan Carlisle, and on *the 6th of April, 1835, the said Carlisle made an assignment of his interest, in the balance due from the said Okey Johnson, (derived through his wife Elizabeth,) to John Sherrard, by writing under his hand and seal. “This assignment was made to John Sherrard for the benefit of Angus W. McDonald, for the sum of $150.’’

In August, 1835, the said Elizabeth Car-lisle commenced proceedings against her husband for a divorce in the Court of Common Pleas of Bedford county, Pennsylvania, and in 1836, the said court in Pennsylvania decreed a divorce between the said Elizabeth and Jonathan, from bed and board, and from the bond of matrimony.

In September, 1837, there was pending a suit in the Circuit Superior Court of Hampshire county, by Samuel Cockerell against Okey Johnson and others, to which Jonathan Carlisle and Elizabeth, his wife, were parties defendant, involving the right of Elizabeth Carlisle to certain property under the will of her father John Snyder, and the said Elizabeth Carlisle filed a petition in the said court, setting forth her marriage to the said Jonathan Carlisle and the divorce above mentioned.

The sole object of her petition was to obtain a decree, settling upon her any amount to which she might be found entitled, by the result of the said suit, under the will of her father.

Sometime in the year 1842 or 1843, Jonathan Carlisle died, and in 1848 the said Elizabeth, his widow, died also. A short time previous to the death of the said Elizabeth, an order was made by the Circuit Court of Hampshire, directing a commissioner to take an account, and to report what would be a reasonable settlement to be made on her, out of her interest in her father’s estate involved in the said suit; and in August, 1848, (the said Elizabeth being still living,) the commissioner made a report, from which it appears that her said interest, amounted in all to the sum of $422 44: *and the commissioner reported that this sum would not be an adequate settlement on her. The said Elizabeth Carlisle left a certain John S. Carlisle surviving her, who was her only son and heir, and who soon after her death, took out letters of administration on her estate. In 1849, after the death of the said Elizabeth, and after the qualification of the said John S. Carlisle as her administrator, he filed in the Circuit Superior Court of Eaw and Chancery for Hampshire, a supplemental bill, in which he sets forth the proceedings under the petition of the said Elizabeth, his mother; and prays that the fund ascertained by the report of the commissioner, to be under the control of the court, may be decreed to him, as the only child and sole distributee of the said Elizabeth. McDonald and the representatives of Sherrard and of Jonathan Carlisle, are made defendants. Process was duly executed, and the bill taken for confessed as to all of them; and the cause coming on to be heard, the Judge of the Circuit Court — over-ruling some exceptions taken to the commissioner’s report — confirmed it, and decreed to John S. Carlisle the sum of $422 44, ascertained to be due the said Elizabeth Carlisle. Prom this decree, the representatives of John Sherrard and Angus W. McDonald appealed; and the question to be decided is, whether the appellants (claiming under the purchase and assignment aforesaid from Jonathan Carlisle), or the said John S. Carlisle is entitled to the said sum of money.

The first objection of the appellants is to the jurisdiction of the Court of Common Pleas of Bedford county, Pennsylvania, in decreeing the divorce aforesaid; because (as is alleged), the parties at the time were domiciled in Virginia. It is sufficient to say, in answer to this objection, that there is no proof in the record to sustain it, and indeed, in the view that I take of this case, the validity of the divorce is wholly immaterial. Several objections are made to the regularity of the proceedings, and in some respects they are certainly not very regular; but no objection of this kind was made in *the court below — no objection was made to the reception of the petition — no demurrer filed to the supplemental bill; on the contrary, (as before stated,) it was regularly taken for confessed as to all the parties; and even if it were not too late to make the objection now for the first time, in this court, I find it laid down in many of the books, that the proper mode of proceeding in such case by the children, is by supplemental bill. 1 Dan’l Chy. Pr., 138-9, and cases cited; Murray v. Lord Elibank, 10 Ves., jr. 84; 13 Vesey, 1 S. C. ; 14 Vesey, 496, S. C.

It appears from the record, that the sum of money in controversy, so far from being reduced into possession, either by the said Jonathan Carlisle or his assignee, was a subject of litigation, and under the exclusive control of a Court of Equity, from the time when it became due, to the date of the decree in the Circuit Court.

The executors of John Snyder, sold a portion of the land of their testator to Okey Johnson. They have never collected, to this day, the money, and the first account we have of it, it is involved in Cockerell’s suit in equity. So that it was literally a chose in action of the wife, which the husband or his assignee could not reduce into possession without the aid of a Court of Equity. The said husband had received some 5 or $6,000 by virtue of his marital rights; and it seems that the small sum of $422, is all that was left of her patrimony. She comes before the Court of Equity, which has control of the money, and by her petition asserts her right to a settlement. What difference does it make whether she asserts it by petition or by bill? In England it has been over and over again decided, that under such circumstances as exist here, neither the husband nor his assignee shall be allowed, through the aid of a Court of Equity, to get possession of the wife’s choses in action, until an en-quiry is made to ascertain whether a suitable settlement has been made on her and her children; and if it hás *not been, the court will see that it is made. This doctrine seems to have been fully recognized in Browning v. Headley, 2 Rob. 340, 341; and if the court, of its own mere motion, would do this, much more should it do so in a case like the present. If it be conceded that the wife has an equity to a settlement, and the court is judicially informed of it, is it not its duty to protect her rights against the claim of the husband or his assignee?

But it is objected, that even if the wife were entitled to a settlement, it is a right personal to her, and that her son, John S. Carlisle, is not entitled to it. I understand a settlement of this kind to be one, properly, for the wife and her children; and if she claims it, and a decree is made in her favor, her children after her death are entitled to the benefit of that decree. 1st vol. Heading Cases in Equity, (White and Tudor, Hare and Wallace’s notes, edition of 1852,) p. 357, (marginal 292,) Murray v. Elibank, and the cases there collected.

We are told by Eord Eldon, that “this doctrine of the wife’s equity to a settlement, is a mere creature of the court, and founded altogether in its practice. ” Murray v. Elibank, reported in the above named book, at p. 360, (marg. 297). And in the same case next reported in the same volume, p. 362, (marg. 300,) Sir William Grant uses almost exactly the same language. There is much conflict among the English decisions, as to what that practice is in some particulars ; but I have not found any case, in which it has been decided, that -when the wife comes before the court asserting her claim, and an account is directed to ascertain what amount should be settled upon her, and she dies, her children are not entitled to the benefit of that decree. The principal cases already referred to, (in White and Tudor,) are direct authorities in favor of the children, and the more recent decisions are collected in the same work, from pages 373 to 378, (marginal 313 to 319,) vol. 1.

Eor the reasons above stated, (without expressing an opinion on any other point; and on the ground alone'*that the wife was entitled to the money in controversy by way of provision, and had on her petition obtained a decree directing an account for a settlement,) I think John S. Carlisle, her only son and, distributee, had a right by supplemental bill to recover it. I am for affirming the decree with costs.

TYEER, J.

A suit was pending in 1837 in the Circuit Superior Court of Eaw and Chancery for the county of Hampshire, in which Jonathan Carlisle, and his wife Elizabeth, et als., were parties, involving the rights and interests of the wife relative to money, &c., to which the wife was”entitled under her father’s will; and on the 14th of September, in that year, the wife filed her petition in said suit, alleging that she had been divorced from the bond of matrimony, by a decree of the Court of Common Pleas for the county of Bedford, in the State of Pennsylvania, and praying the court to decree to her, as feme sole, such money, &c., as she would have been entitled to, if she had never been married. Process was issued against the husband and his assignee, to answer the petition; the husband having, on the 6th of April, 1835, assigned his interest in the fund in court to John Sherrard, for the benefit of Angus McDonald. In his assignment he states, that his interest, such as it is, is derived through his wife, as . one of the children and distributees of John Snyder. In May, 1847, after the death of the husband, the court made an order, without objection, directing an enquiry before a commissioner, as to what would be a reasonable provision for the petitioner out of the fund in court, taking into consideration the amount received through-her husband. We have here, then, a suit in a court of equity, in which the wife’s property is under the jurisdiction of the court, and in such a manner as to require a decree or order of the court to put the party rightfully entitled to it in possession of it. All the parties interested in the fund are before the court; and it is the indisputable rule of the court, that, under such circumstances, it will not ^'deliver the fund over, except on the terms that a settlement . shall be made on the wife. In a case such as this, an objection is raised in the appellate court, for the first time, to the form of the petition, in this, that it does not pray the specific relief which was ultimately granted by the court. Where all parties interested in a fund of this description are before the court, as in this case, I think that, on the motion of the wife, it would not only be in the power of the court, but it would be its duty, to order an enquiry, such as was ordered in this case, and to act on the report made pursuant thereto. There can be nothing, then, in the objection to the form of the proceeding by which this question was brought to the notice of the court, and acted on by it; and I think there is-no question as to the power and duty of the court to recognize the wife’s equitable claim to a settlement. The case made by the petition is, that of a husband and wife living separate and apart, by reason of a divorce, obtained at her instance, from the bond of matrimony; and whether that divorce was void or not, is wholly immaterial to this controversy. That fact alone, that the wife was not supported by the husband, without contradiction or explanation, was all-sufficient to induce a court of equity to make provision for the wife out of the fund in court. No just objection can, therefore, be opposed to the claim of the wife to her equity by way of settlement, as against the husband.

But it is said, that the divorce, if valid, could not avoid a previous assignment, made by the husband for valuable consideration, of his wife’s interest in this personal subject. That may be true or not; but, for the purposes of this suit, it is unnecessary to decide, whether the wife would take the fund by survivorship. For, although “dicta” may be found, that an assignee of the husband, for valuable consideration, takes a chose in action of the wife, freed from her contingent right of survivorship; I am not aware of any decision, or even of any “dictum” that he takes it discharged of the wife’s equity to a settlement. That he does not, is decided in *Browning v. Headley, 2 Rob. 340, and recognized in Dold’s trustee v. Geiger’s adm’r, 2 Grat. 98-112. While questions may therefore arise in other cases, as to the character and description of property out of which the wife can claim her equity to a settlement, and as to the amount to be settledoin the case of creditors, I think no question of that sort arises in this case. The husband was dead when the order of reference in this case was made, and there remained in the hands of the court a little over $400, the remnant of some $700, all of which, except this remnant, had been received by the husband. The whole fund, therefore, was but a mere pittance in the way of a provision.

If I am correct in the foregoing views, the only remaining question is, did the wife’s equity attach to the fund for the benefit of her child? and of this, looking to the facts and circumstances of the case, and the proceedings in the suit, I entertain no doubt. In Lloyd v. Mason, 5 Hare, 149, Sir J. Wigram (V. C.) says: “The question whether the children can, after the death of the mother, Insist on her equity to a settlement, depends on the question whether the father is bound; and it is clear that an order referring to a master to approve a settlement, binds the father.” In this case, the order was made after the death of the husband, and before the death of the wife, and the son claimed by supplemental bill the fund in court. It is the object of the courts, in all cases of provision for the wife, to include the children. As the fund in court was too small for the assignee to take subject to conditions, I am of opinion that the court below properly decreed the whole fund to be paid over to the appel-lee. I am, therefore, for affirming the decree with costs.

THOMPSON, J.

I concur in the decree of affirmance to be entered in this appeal, and in the reasons and conclusions of my brethren, whose opinions have been delivered. If there be no fatal defect in the form of the proceedings, (as X think they have shewn,) the proceeding *by bill or petition (if not mere motion) being equally proper; and if the bill were even the only proper form of proceeding, technically speaking, the petition and supplemental petition in this case having, without objection in the court below, been considered and treated as an informal, but substantial bill and supplemental bill; if the wife was entitled to a settlement against the assignee for value, even though there had been no divorce and no dissolution of the marriage by the death of the husband, (about which there can be no question or doubt;) if the settlement of the whole fund made by the court was a reasonable one, (which, upon principle and authority, under the circumstances of the case, is equally clear of doubt;) if the son was entitled to it, either in the character of administrator or son, or in both characters, (and that he was so entitled in the one or the other, if not in both rights, I entertain no doubt, as the mother’s right had been fixed in her lifetime by the interlocutory order of account directed to ascertain the quantum of the settlemenl, if, indeed, the commencement of the mother’s suit would not have had the same effect;) there surely can be nothing substantial in the objection, that the mother claimed the whole by her petition or original bill, upon the ground of the divorce, and upon that ground only, since she was at the time entitled to the same measure of relief on other grounds, afterwards asserted and relied on by her son and administrator in the supplemental bill or petition.

And considering the case, viewed in this aspect, as a clear one in favor of the appel-lee, I deem it wholly unnecessary (if not for that reason improper) to express any opinion upon the validity or effect of the divorce, and upon the much more debatable and doubtful question, discussed with so much zeal and ability by the counsel of the appellee, whether or not the wife be entitled by survivorship to the whole of a chose in action, legal or equitable, and more especially an equitable chose, as in this case, against a special or particular assignee for value?

*The state of decision in Virginia, and in England, (especially, according to the more modern decisions there,) renders it a very doubtful question with us, to say the least of it, and very proper for the most mature consideration and final adjudication of the Supreme Court of Appeals, when the question shall again come up for decision before that court. Yerby and wife v. Lynch, 3 Grat. 460; Hayes v. Ewell’s adm’or, 4 Grat. 11; Browning v. Headley, 2 Rob. 340-1, and the cases therein referred to; Dold’s trustee v. Geiger’s adm’or, 2 Grat. 98; and the modern English cases, Johnson v. Johnson, 1 Jac. & W. 456; Elwin v. Williams, 12 Law Journal, N. S. 440, and 9 Sim. 137; Ashby v. Ashby, 14 Law Journal (Ch.) new series, 66, and 1 Daniell’s Chancery Pleading and Practice, 159, first American edition. In a case in which it does not necessarily rise, I do not feel called upon to express my opinion upon a question so interesting and important, and so embarrassed by the conflicting opinions and decisions of the most enlightened and learned judges and courts, (though invoked to do so by the counsel of the appellee,) because such an opinion would be obiter, and if it were not, it more appropriately belongs to another forum — ■ the Supreme Court of Appeals — to settle the question authoritatively, whenever it shall arise in a case before it, and not to this tribunal in one in which it does not necessarily arise! My answer, then, to that invocation of the counsel is, Non nostrum tantas componere lites. It is not our province, on the present occasion, to undertake the difficult task of reconciling, or of deciding upon, the conflicting opinions that have been elicited during this judicial controversy.

EIELD, J.

Whether the chose in action in this case survived, or not, to the wife of Jonathan Carlisle upon his death, notwithstanding the assignment from Carlisle to Sherrard for the benefit of McDonald, is a question upon which we need not express an opinion in this case. If it did survive to her, the effect would be to have the ^decree from which the appeal has been taken corrected, by giving a decree for the money in favor of John S. Carlisle, as administrator of his mother, and then to affirm the decree, as amended, with costs to the appellee, as the party substantially prevailing in this court. This would, in effect, give the money to John S. Carlisle, the sole distributee of his mother. This same result will be accomplished by an affirmance of the decree. Although I concur in the opinions delivered by my brothers, Tyler, Gilmer, and Thompson, yet I wish to be understood as affirming the decree on this ground. The chose in action was one which did not pass b3r delivery, as a bill of exchange or specific chattel would, and the assignment conferred a right which could be enforced only by a suit in equity, in which the name of the wife would necessarily have to be sued. In all such cases, her right to have a settlement or provision made for her attaches; and the relief praj'ed for will be granted to the husband, or his assignee, only after making a reasonable provision for the wife, unless a settlement has already been made. On this principle, Mrs. Carlisle’s right to a settlement can be sustained, and to this right her son became entitled on her death, a reference having been made before that time to a commissioner as to the amount of the settlement.

The decree of the Circuit Court is to be affirmed with costs, and $30 damages.

CLOPTON, J., concurred, verbally, in the decree.  