Gardner v. Hooper , 69 Mass. 398 ( 1855 )

Shaw, C. J.

It may be convenient to restate, in one view, the dates of the several material events on which the question depends. Mr. Gardner, -the testator, died in 1843. The insolvent proceedings in the case of Mr. Gray, and the assignment of his property by the master in chancery to Hooper and the other assignees, occurred in December 1847. Mrs. Rebecca R. Gardner, the testator’s widow, died in December 1853.

The first question seems to be, whether the assignees of Mr. Gray, by force of the assignment, took any interest in the residue of the personal property of the testator, then held by the executor in trust. By the will, after certain pecuniary legacies, the testator placed the whole of his real and personal property in trust; and the trusts were, first, to pay the whole of the income to his wife during her life, and at her decease to divide it an,d pay it over equally to the five children, two sons and three daughters, to their own use respectively. But he added a proviso, that if either of the five children should die in the lifetime of their mother, the widow, then the fifth part of the one so dying should be paid to the issue of such child, if any; otherwise, to the surviving children, or their issue, if deceased. This rendered the gift to the daughter, Mrs. Gray, so far contingent that, if she should not survive the widow, the amount would not come to her, and, of course, would not come to her husband. And it is contended that, inasmuch as this bequest was a contingent and not a vested remainder, it was a mere possibility, and therefore the husband had no such interest as would pass to his assignees for the benefit of his creditors, under the very sweeping assignment of all his estate, real and personal, which he could by any way or means have lawfully sold, assigned or conveyed; which assignment, the statute declares, shall be effectual to vest in the assignees all debts due to the debtor, all liens and securities therefor, and all his rights of action for any goods or estate, real or personal, and all his rights of redeeming any such goods or estate. St. 1838, c. 163, § 5.-

Upon this question, the court are of opinion that, at the time of Mr. Gray’s insolvency, he had an interest, in right of his wife, a conditional right of action, an equitable right to receive and reduce her share to possession, which was not a mere possibility, but an interest created by the will of her father, in the nature of a present gift of an interest to come into possession at a future time, subject to fail and be defeated in case of the decease of his wife during the life of her mother. That such an interest, though in a certain sense contingent, is an existing interest, which is descendible, transmissible and assignable, is well settled, and upon satisfactory grounds, by the late case of Winslow v. Goodwin, 7 Met. 363, in which the authorities were carefully collected and most ably reviewed by Mr. Justice Wilde. Instead of repeating the authorities, we refer to that case and the cases there cited, in support of our opinion.

The right and interest which Mr. Gray had, in right of his wife, at the time of his becoming insolvent, we think was an equitable right depending upon a condition or contingency—-the decease of the widow before that of her daughter—to demand, collect and receive the fifth part of the residuary personal estate; the contingency happened, the wife did survive her mother, then the reversionary interest became a present interest.

We consider that this equitable right of action passed to the assignees by the assignment; that by the “ right of action ” mentioned in the statute, the legislature intended all valuable rights actually subsisting, whether absolute or conditional, legal or equitable, which were to be obtained by the aid of any species of judicial process.

But after all, the interest which thus passed to the assignees was but an equitable chose in action ; and, by the well known rule of law, the wife’s chose in action does not become the absolute property of the husband, until it is reduced to possession by the husband, or by his creditors or others, who in certain cases have a right to reduce such choses in action to possession, to an extent sufficient to satisfy their claims. From the nature of the case, this chose in action could not be reduced to possession before the insolvency; and by the insolvency, and the assignment which followed it, the right of the husband was devested. And Mr. Gray, by his answer, disclaims any purpose or intent to claim this residuary property given to his wife by the will of her father.

But though, in the opinion of the court, the assignees took an interest in the personal property of the wife in the hands of the trustee, yet it was an equitable and qualified interest, to be pursued and recovered only in a court of equity, and therefore they must take it subject to the equitable claim of the wife, for a rea sonable allowance for the support of herself and her children. Besides ; here the suit having been brought by the trustee, and the assignees having been made defendants, they have come in and claimed such rights as they are entitled to claim as assignees, and submitted themselves to the jurisdiction of the court. We think, therefore, it is eminently a fit case for making such an allowance. The authority of the court to make such allowance is a well established principle of equity, and has been recognized by ibis court. Gassett v. Grout, 4 Met. 488. Davis v. Newton, 6 Met. 542.

In regard to the real estate devised by the will of the testator, consisting of shares in the India Wharf, we think the rights of the parties must be determined by the principles already stated. It appears that Mr. and Mrs. Gray had issue born before the time of his insolvency. We think therefore that Mr. Gray had an equitable tenancy by the curtesy, depending on no other contingency than that of his wife’s surviving her mother; that such inchoate tenancy by the curtesy, though in some respects contingent, was not a mere possibility, but a subsisting conditional interest, which passed by the assignment, and which gives the net income thereof to the assignees, during the life of the husband. Decree accordingly.