Citation Numbers: 32 Ky. 436
Judges: Robertson
Filed Date: 11/12/1834
Status: Precedential
Modified Date: 7/29/2022
delivered the Opinion of the Court.
Dillingham, being the obligee in a replevin bond which had been given by Noland as principal, and by Bennett and others as his sureties, filed a bill in chancery against Bennett and wife, alleging, that they had removed to the State of Missouri; that all the obligors had become insolvent, and that Bennett, in right of his wife, held an interest in a tract ®f land, in the county in which the bill was filed, and was entitled to money in the hands of the personal representative of his wife’s mother, and in the
Bennett and sVife answered the bill, and resisted a decree against them, on several grounds; but particularly, because, as they alleged, the property, sought to be subjected, was still that of the wife, so far as to entitle her to a competent provision.
It was admitted, on the record, by Dillingham, that Bennett and wife have a large family of children ; that they are in a condition of extreme poverty and destitution ; and that the entire interest which they held in her mother’s estate, does not exceed, in value, two hundred dollars.
The circuit court decreed, that fifty eight dollars, to which Bennett was, in the opinion of that-court, entitled, out of the money in the hands of the commissioner who had sold the slaves, under the decree on the petition of the distributees, should he paid to Dillingham.
Waiving every other objection to the decree, we shall consider only whether Mrs. Bennett be entitled, in equity, to the whole, or any part, of the fifty eight dollars, in preference to her husband’s creditor, who asks the chancellor to apply it to the payment of his debt.
It is the settled and peculiar doctrine of a court of equity, that a wife will be entitled to a provision, out of her own personal property, before the husband shall have actually obtained the possession of it; and that the chancellor may secure a settlement on the wife, as against the claim of the husband, or his creditor, whenever either of them shall apply to him for his aid in getting possession of such property, claimed in right of the wife. In Kenny vs. Udall, 5 Johnson’s Chy. Rep. 473, Chancellor Kent says, “ It is now understood to be settled, that the wife’s equity attaches upon her personal property, when
But, in this case, Bennett’s interest in the distributable fund in the hands of the commissioner, had not been, and could not he deemed to have been, reduced into his possession. Before the decree for distribution, the wife’s interest was a chose in action. Whitaker vs. Whitaker, 6 Johnson's Reports, 112. The wife was joined in the suit for distribution, and therefore the maxim transit in rem judicatura could not apply to such a decree, so as to change the wife’s pre-existent right. The money in the hands of the commissioner is not in the possession of the husband ; if he die before he receives jt, and his wife survive, she alone will be entitled to it. Manners vs. Martin, 1 Ch. Ca 21; 1 Vern. 396; 2 Ves. 677; 3 Atk. 21; Executors of Schoonmaker vs. Elmendorf, 10 Johnson's Reports, 49.
The money in the hands of the commissioner is then no more liable, in this case, to the creditor’s demand than the money in the hands of the administrator would be; and, as to each fund, we have no doubt that-the chancellor should make no decree in favor of the creditor until Mrs. Bennett be provided for; and, as it appears, that the whole of both funds would he but a very
Decree reversed, and cause remanded with instructions to dismiss the hill. It does not present a'sufficient foundation for any decree as to the undescrihed land, and the undefined interest of Bennett in it, even were we to concede that, otherwise, it would exhibit any equity which could, on the facts now appearing, be made available.