Wiles v. Wiles

Le Grand, C. J., delivered the opinion of this court. There is no dispute in regard to the facts in this case. The bill, in substance, states, — and its allegations are admitted by the answers and the agreement filed in the cause — that the appellant, at the time and prior to her marriage with the defendant, Wiles, was the owner of a chose in action, due and owing to her by the defendant, Ramsburg; that after the marriage and the birth of a child, her husband, on the 20th day of September 1849, applied for the benefit of the insolvent laws, and that the defendant, Keller, was appointed his permanent trustee. The bill also states, that Wiles is wholly insolvent and unable to provide for the support of his wife and children, and that the note is the only means of support of complainant and her children; and that the trustee of her husband is seeking to recover this note, and prays an injunction to restrain the trustee from proceeding to collect the note, and for a suitable provision, out of said note, for herself and children.

The question for this court to determine is, whether she be entitled to the relief sought? On the part of the appellant it has been insisted, that in all cases where the trustee of an insolvent debtor is seeking to recover the chases in action of a wife, not reduced into pos ⁸ session, and when it appears that the husband is insolvent and unable to support his wife and children, a court of equity will interfere and restrain the trustee by injunction, until he makes a suitable provision for the wife and her children. There is no doubt of the general proposition, that where a husband, or his assignee, asks the intervention of a court of equity to' obtain the possession of a wife’s- personal property, the court will require him to do what is equitable, by making a suitable provision out of it for her maintenanc.e and that of her children; and if the fund be under the control of the court, she0may proceed by original bill. Duvall vs. Farmers Bank of Md., 4 Gill & John., 282.

But the doctrine contended for on behalf of the appellant; extends beyond this principle. It, in substance, asserts, that a court of equity will restrain a husband, or his assignee, from collecting a legal chose in action, even where it is not necessary for him or his assignee to invoke the aid of a court of equity, until such time as a suitable provision be made for the wife. The propriety of such- a doctrine is strongly urged by the reasoning of learned jurists, but we have not been able to find, with but one exception, that it has ever been so decided. The subject has undergone a very full review in many cases, both in England and this country.

The principal cases in which it has been considered in this country, have been very carefully brought together in the notes to the case of Murray vs. Lord Elibank, 65 Law Lib., 329. Speaking of the wife’s equity, Chancellor Kent, in vol. 2, page 141 of his Commentaries, says: It “does not, according to the adjudged cases, attach, except upon that part of her personal property in action which the husband cannot acquire without the assistance of a court of equity.” And that “if the husband can acquire possession without a suit at law^or in equity, or by a suit at law, without the aid of a court of chancery, (except perhaps as to legacies, and portions by will or inheritance,) the husband will not be disturbed in the exercise of the right.” This, we take it, is the substance of the principles estab ⁹ lisfaed by the adjudged cases, both in England and this country. It is true that learned jurists have suggested the inquiry, whether a court of chancery ought not, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife’s personal property in action, until he makes a suitable provision for her. indeed