
    [Philadelphia,
    January 26, 1836.]
    ROBINSON against WOELPPER.
    IN ERROR.
    Where one bequeathed the interest of a certain sum to his wife during her life; and his widow afterwards married again; it was held that the interest so accruing was not liable to a foreign attachment, at the suit of a creditor of the second husband.
    Upon a writ of error to the District Court for the City and County of Philadelphia, the case was thus:
    Robinson had issued a foreign attachment against Othniel Colescott; and having obtained judgment in due course, issued a scire facias against George Woelpper, the garnishee. Upon the trial of this scire facias, the jury found a special verdict, setting forth that Frederick Woelpper, the former husband of Rachel Colescott, now wife of Othniel Colescott, the defendant in the attachment, made his will, as follows:
    “ Be it remembered, that I, Frederick Woelpper, of Moyamensing, in the County of Philadelphia, victualler, being of sound mind and memory, praised be the Lord for the same, have thought proper to make, and hereby do make, my last will and testament, in manner following, that is to say:
    First, I will that all my just debts and funeral expenses be duly paid and satisfied.
    1. Item. All the rest, residue, reversion, and remainder of my estate, real and personal, whatsoever and wheresoever, I give, devise and bequeath to my beloved daughter Margaret, and to such other child and children as shall be born unto me, her and their respective heirs and assigns forever, subject, nevertheless, to the payment of one-third part of the nett interest and income thereof, to my beloved wife Rachel, for, and during all the term of her natural life ; which I give to my said wife in lieu and bar of dower.
    
    
      2. And in order the better to enable my executors to settle my estate, I authorize them to sell and dispose of all my real estate, whenever they shall deem proper; and grant and convey the same, or any part thereof, to the purchaser or purchasers thereof, in fee simple.
    And thirdly, I also give to my said wife, Rachel, all the furniture belonging tó this room, and likewise all my kitchen furniture, &c.
    Item. I nominate and appoint my said wife executrix, and my 'brother, George Woelpper, executor of this, my last will and testa•fiíént.
    
      Arid I áiso appoint my said brother George, guardian of the person and estate of my said daughter, and of such child and children which shall, or hereafter may be born unto me.
    In witness whereof, I have hereunto set my hand and seal this twenty-first day of January, in the year of our Lord one thousand eight hundred and eighteen.”
    That George Woelpper, the garnishee, was the executor named jn the said will, and as such, had in his hands, at the settlement of his ábcounts, on the 21st of July, 1820, the sum of $776Í 64 ; which was invested at an interest of about five per cent., yearly; and that the widow of the testator, and wife of the defendant, received from [he said George Woelpper; half yearly, one-third of the interest on that sum, as the same from time to time fell due, viz. in the months Of January ánd July: and that since the issuing of the foreign attachment in this case, the sum of $242 17 had accrued, and was in the hands of the garnishee, as executor of the said will.
    , The court below rendered judgment upon this verdict in favour of the defendant; whereupon the plaintiff removed the record tci this court.
    Mr. Wheeler, for the plaintiff in error.
    The estate of the decedent, as respects the sale of real estate, and payment of debts, had beeri settled for twelve years before the issuing of the attachment. The payments of interest which accrued during the coverture, as made to Mrs. Colescott, were, in law, payments to the husband: they had been received, and were held to his use. The duty which George Woelpper undertook to perform, is a bald, naked, trust; not clothed with any direction, as to her sole and separate use, Upon her Own receipt, fee. The point at which he is to be contemplated; is whén dividends are received; immediately on which receipt, they áre exposed to the implied assumpsit in law, which is in fávoür of the husbáñd alori'e. In the case of Buckley v. Collier-, (1 Salk. 114,) where the husband and wife declared for work done by the wife during coverture l, the court in overruling the action say — “ here is no express protnise laid to the wife ; here is nothing but the promise in law; and that must be to thé husband, who must have the fruit's of the wife’s labour. Also, the advantage of the wife’s work shall not survive to the wife, but goes to the husband, for if the wife does, her debts fall upon him, and therefore so shall the profits of the trade to the husband’s executors.” So, also, is the r'écént case referred to in Clancey On the Rights of Married Women, at page 3 ; Glover v: The Proprietors of Drury Lane. Thé' husband is entitled absolutely to all sums of money which have b'éeri received by a third person, on her account,’during the marriage ; and if he join her with him in actions for such causes, it Would be error. Abbott and Wife v. Blofield, (Crdke James, 644.) Bridgood v. Way, (2 Black. 1236.) Coke Lilt. 351, a. Fitch v. Ayer, ‘(2 Conn. Rep. 143,) where the interest on a legacy given to the wife, was held recoverable by the husband alone. Griswold v. Penniman, {Idem. 564,) where the husband’s creditors were held entitled to the wife’s distributive share, which accrued during the 'coverture. A legacy given to a married women, must be paid to the husband. Toller’s Executors, 320. Matthew’s Guide to Executors, 79. In Evans and Wife v. Norton’s Executors, (4 Rawle’s Rep. 66,) the expression was, “ I also give and bequeath unto the said George Knorr, the sum of one thousand dollars, in trust, for the use of her, the said Sarah Evans and it was held, that the husband was entitled to the legacy. The reasoning of the judge who pronounced the judgment of the court, is aside from the circumstance of the husband being joined in the suit. Yohe v. Bar-net, (1 Binney, 358,) contrasted with Jamison v. Brady, (6 Serg. Sp R. 466,) is a notable illustration of the general principle, that money accruing during the coverture, is the husband’s": there, money belonging to the wife was applied at once to the payment of his 'debt. Precisely the same thing was done in Krause, assignee of Moll v. Beitel, (3 Rawle’s Rep. 199.) This interest wuold be attachable in Massachusetts, for the husband’s debt. Shuttleworth v. Noy, (8 Mass. Rep. 229.) There, the money due on a promissory note given to the wife, wras attached by the creditor of the husband. It matters not that their process or remedies are different from ours; this circumstance does not affect the principles The law is the same in reference to the rents of real estate, accruing during the coverture. Coke Litt. 162, b. 8. “ A feme sole is seized of a rent in fee, &c., which is behind and unpaid, she taketh husband: the rent is behind again; the wife dieth ; the husband, by the common law, should not have the arrearages grown due before the marriage ; but for the arrearages become due during the coverture, the husband might have an action of debt by the common law.” Ognel’s case, (4 Coke’s Rep. 61.) So also is the year book, 10 Henry, 6,11; Chant, (counsel); “in the case where the wife, before the coverture, had made a lease to a man for term tof life, rendering to her certain rent, and during the fnarriage the rent was in arrear, after the death of the w'ife, the husband shall hot have action of this rent.” Babington, J. — “ The baron shall have good action in this case that you have put.” Rolle’s Abr. Baron and feme, 352. To the same effect is Torrbert v. Twining, (1 Yeates-, 132.) The case is clear of the doctrine connected with that of the wife’s bhoses in action, because the right to these dividends, in the hands of the garnishee, is in the husband. The law, on the subject of the wife’s choses in action, is to be found in Cdancey, front page 3 to 8. The dividends received and embraced in the special verdict, are credits of the husband, and are within the very words of our attachment law; viz.: “goods, chattels, moneys, effects, and credits of the defendant, in the custody, possession, and charge, or due and owing from any garnishee or garnishees.” (2 Sm.L. 502.) The object of the foreign attachment law, is to make responsible the effects of the absent debtor, to the same extent as those of the present debtor. If Colescott should be compelled to take the benefit of our insolvent law, his assignment'would embrace these credits. (Ingraham .on Insolvency, 2d ed. 223, 321.) The attachment may be dissolved by the entering of special bail. (1 Smith’s L. 45, s. 2.) This case is different from that in 2 Watts. Rep. 90, Dennison v. ■ Nigh; because the estate there was not settled. A trust for selling real estate was to be executed. The cases cited by the court, in ruling the point, are not applicable to our case: the one in 2 Ventris, 341, was clearly a case of a wife’s chose in action: that in' 1 Rolle’s Ahr. 551, wás not an interest coming up to the point of assignability, according to Sommer v. Wilt, (4 Serg. dp R. 19.) It was an attempt to attach the interest of a dispossessed owner of goods, in the hands of a tort feasor. As to reduction into possession. The dividend's, ás received, had always been punctually paid to Mrs. Colescott, before her marriage, and after that event, till the time of the attachment, in a way satisfactory to the husband. There was as much reduction into possession as the nature of the thing admitted 'óf. We are to be governed by our acts of assembly, and not by the customs of London. By the custom of London, it appears that a legacy is not the subject of foreign attachment; whilst this court holds it to be an open question under our law.
    Mr. Arundel, contra,
    cited Schuyler v. Hoyt, (5 Johns. Ch. Rep. 19Ó.) Jamison v. Brady, (6 Serg. dp R. 466.) Lodge v. Hamilton, '(2 Serg. dp R. 491.) Starret v. Wynn, (17 Serg. óp R. 130.) Dennison v. Nigh, (2 Watts. 90.) 3 Atkyns, 399. 5 Vesey, 520. 3 Br. Ch. Rep, 181. 1 Russell Ch. Rep. 24. 1 Bac. Ahr. 480. 2 Atkyns, 206. 2 Vernon, 202. Clancey, 321, 353.
   The opinion of the court was delivered by

Huston, J.

There is scarcely any part of the law, in which the . 'distinctions have gone on nicer grounds, than in that which relates to the rights of husband and wife. Nay,, the decisions are not always to be reconciled ; and, in more than one instance, what was held to be law at one time, has been subsequently expressly overruled. I shall confine my remarks to the case before us.

The cases cited do not, all of them, apply to the case before us. This is not the case of money earned by the labour of the wife, and sued for on the implied promise to pay; nor is it the case of money or goods devised to a married woman, or of a bond or note given to a married woman — it is a legacy devised to a woman before ' ■she was married. I may admit that the husband could sue for it alone — could release it — assign it; that it would go to the assignees of her husband, if a bankrupt, or insolvent debtor. Here he has not sued for it', nor released, nor assigned it, nor been declared a bankrupt, nor assigned and been discharged under the insolvent debtors’ act.

The position, that if a husband can sue for it alone, and recover, it is his, and goes to his executors, and does not survive, is not admissible. He may assign a term for years- — bring ejectment, and recover it in his own name. It may in his lifetime be taken on execution for his debt; and yet every book says, that if he does not assign it — does not bring an ejectment for it, in his own name, but leaves it not sued for, or joins his wife with him, as plaintiff, in the ejectment, or it is not taken in execution for his debts, during his life, it survives to the wife ; and he cannot prevent this, by devising it; though he could have sold or assigned it till the last moment of his life. In England, legacies are recoverable generally in chanpery, and this has introduced a part of their law, as to husband making provision for his wife, where the gift is to her, before he pan recover the bequest; and on this subject, also, all the decisions are not easily reconciled. We may say that, generally, where he has made a settlement on her at the marriage, he gets legacies, claiming as a purchaser, without any'new settlement on recovering the legacy. But this is not universally so. For where the sum settled at the marriage is small, and the legacy large, he has been compelled to settle a further sum. In this case, the husband has made no settlement; and his creditors can’t claim on that account. But this chancery power has not been exercised in this state. It would seem, then, that although the right of the husband is in many cases absolute, yet, if he dpes not exercise the right, it expires with his life. He is entitled to the property, to the term for years, the phose in action or legacy; but he is entitled to it, and owns it, in right of his wife; and when he dies without having exercised his right, her right is superior to, and exclusive of all others. Husband and wife are, in law, but one person. All rights to personal property which were in her, by this legal fiction, are in him, as identified with her, during his life; and though he, having the power to sue or dispose, may recover, and reduce to possession or dispose of the chose in action without her, yet the right still remains in her so far, that if she survives, she has it precisely as she had it before marriage.

The act of the husband only, can divest this right of the wife. A creditor can imprison a man if he does not pay his debts, and has no property on which-to levy it. But, although in prison, the creditor cannot compel him to assign his own bonds, given directly to himself; nor the bonds or legacies given to his wife before her marriage: and I think no case or dictum can be found to show, that during his life, or after his death, the bond or legacy to the wife, before marriage, can be taken for his debt. If he wishes to be discharged from prison under acts for relief of insolvent debtors, he must assign them ; and then, it is the act of assigning, which passes them to the creditors. The fact of his being indebted, and no other fund to pay creditors, will not pass them. The law seems to require some act of the husband, to take them from the wife. If no act is done by the husband, the chose in action, which was the wife’s before marriage, must be hers after his death. In this case, the husband has done no act: has not sold, released, or assigned — either voluntarily or as a bankrupt. The result of this may be, that a husband may have a right to money which he could get, but which his creditors cannot reach. So a bond may be due to him, or a debt; his creditors cannot levy on either of these; and if he will lie in jail, they cannot obtain them during his life. ■ A bond to himself, or a debt to himself, may, after his death, be reached by his creditors; but a legacy or debt to the wife, before her marriage, if not collected by the husband, his creditors cannot obtain: for, as it was originally in the wife, and the husband’s right arose from the fiction of the law, which, for many purposes, considers husband and wife but one person, the law remits to the wife her original right on the death of the husband; and neither the heirs nor creditors of the deceased husband have any right to it. The very point now before us, was decided by this court, in 2 Watts. 90; for this yearly sum is the legacy. The bequest is not of the principal to the wife, and the interest annually. If it was so, I am not aware that it would make any difference. If a bond is due to a woman before marriage, and neither principal nor interest disposed of by the husband during life, the whole, on his death, goes to the wife. So of a legacy bearing interest.

Whether any legacy can be attached for the debt of the legatee, ha§ not yet been decided in this state, and we say nothing about it.

Judgment affirmed.  