Marston v. Carter

Parker, C. J.

If, as contended by the plaintiff’s counsel, the limitation over in the will of Jacob Hook, to the children of Mrs. Carter, was void, on account of its tendency to create a perpetuity, it might perhaps admit of argument whether the bequest to the first taker, Mrs. Hook, was not absolute, so that on her decease the property would go to her administrator. Perhaps, however, the reason of the rule avoiding the perpetuity might, in this case, permit the property to pass to Mrs. Carter, and vest the absolute interest in her.

It is not necessary to consider this matter, because the limitation over to the children is valid. It is a limitation to take effect after lives then in existence ; and the law admits of ex-ecutory bequests of chattels, with any number of successive limitations, so that they are made to take effect within a life or lives in being, and twenty-one years, and a farther period of gestation of a few months after. 2 Roper on Legacies 368; 3 Atk. 287, Sheffield vs. Lord Orrey; 2 Peere Williams 686, Stanley vs. Leigh; 2 Vern. 600, Higgins vs. Dowler; 4 Dane’s Abr. 687; 4 Kent’s Com. 267, 271.

If the testator, instead of giving the use for life first to Mrs. Hook, and then to Mrs. Carter, had given the use for *163 life to either one of them, and on her decease to the children of Mrs. Carter, it would be as much of a perpetuity as it is now ; both the legatees for life being in existence when the bequest was made.

it is not at all important to settle, in this case, whether the children of Mrs. Carter living at the decease of the testator, or those living at her decease, are entitled under it.

Mrs. Carter having by the will a right to the use of the property for her life, the plaintiff next contends that this interest vests in the husband, and that he is entitled to charge the trustee on account of this interest, and sell the use of the property on the execution, in satisfaction of his demand.

But the use thus bequeathed is in its nature a personal right. The husband may of course have the benefit of it, along with the wife, but it is not assignable.

The value of the limitation over must depend materially upon the manner of the use by those who had the right for life ; and the testator, in giving the use of this furniture, first to his widow, and then to his daughter, evidently could not have contemplated conferring an interest upon either of them which should be the subject of sale and transfer, so that the possession and use for the term should be vested in the ven-dee. He doubtless reposed a personal confidence in those to whom he gave the use, and those interested in the limitation over have the right to require that the actual use should be confined to those to whom he gave it. As no security is required of a legatee for life, who is entitled to the possession, ( 5 N. H. Rep. 326 . Weeks vs. Weeks,) none could be required of a vendee, if the use should be transferred. It is not like a devise of real estate, where the property has a fixed location, and where waste is easily ascertained, and a remedy may be had ; or a bequest of personal property producing an income, which income may be transferred, or taken.

We are of opinion, therefore, that the husband could not reduce the furniture to possession, so as to gain a right to dispose of the use and possession to a purchaser — -that Mrs. *164 Carter, with his assent, could not lawfully transfer it, and that creditors of course cannot take the use on execution and sell it for the payment of his debts. A sale at auction of the use of the different articles, severally, and a delivery to the several purchasers, would render the limitation over worthless, if it might otherwise be supposed to possess some value.

If creditors could reach it in any way, it would seem to be by proceedings in equity, resulting in an order for the sale of the property itself, an investment of the fund for the benefit of those interested, and a payment of the income to the creditor, during the existence of the life estate. Whether that can be done, in the case of a specific bequest of the use of a chattel, we need not now enquire. Where there is a general bequest of a residue for life, with remainder over, the practice is to have the property sold, and the proceeds invested. Vide 2 Kent's Com. 354, and notes.

If the bequest to Mrs. Carter had been operative, and the limitation over to the children void, so that she would have taken an absolute property, her husband might have reduced it to possession, and his creditors then have taken it. But we hold that a legacy to a wife does not vest absolutely in the husband. 9 N. H. Rep. 309, 321 , Parsons vs. Parsons. He has a right to reduce it into possession; but if he do not exercise this right, it survives to the wife. And he may decline to do this, and permit his wife to hold it to her own separate use. Ibid.; 17 Mass. R. 57, Stanwood vs. Stanwood.

It is said in this last case, that if creditors had claimed the property, the question might have been difficult. And in Wheeler vs. Bowen & Trustee, 20 Pick. 563 , it was held that the interest of a husband in his wife’s distributive share of an intestate estate, which the husband had not reduced to possession, might be attached in the hands of the administrator, by the trustee process, which operated, in this respect, as a statute assignment of the interest of the husband. But the property is not there held to have vested in the husband ab *165 solutely, until he has done some act asserting a right or power over it, or until his creditor takes it; for if the husband die while the action is pending, the wife’s right of survivorship is not divested. 1 Met. 476 , Strong vs. Smith & Trustee; and see 20 Pick. R. 517, Hayward vs. Hayward.

The decisions here have not gone so far as to authorize the creditor, by any process, to appropriate a legacy or distributive share of the wife to the payment of the husband’s debts, without his assent, and before he has asserted a title to it. The right of the creditor must depend upon the particular view to be taken of the right of the husband. If the right of the husband, until some act done by him, be regarded not as a vested interest in the property itself; but as amari-ital right, or power, which he may exercise, by some act of ownership, upon which an interest in the property becomes vested ; a creditor, without the assent of the husband, cannot reach the property, unless the case is an exception to the general rule. We are not aware of any other marital right which the law permits him to exercise, in his character of a creditor.

Trustee discharged.