The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-05-30

wife, and bear the burdens Incident TO marriage,
and be has prima facie right to her property TO |
enable him to discharge these obligations"
Perry on Trusts Section 64l and eases cited.
We fnd that the authorities are conflicting as TO
what words are sufficient TO create separate
use IN 4 married woman. The words which are
often used and which are held TO create sepa-
rate estate in married woman are when the
legacy is gwen TO the wife for her sole aud
separate use"
In Shewill vs. Dwarris l John, (Eng) l72
where the gift was 10 the vile 10 be for her own
and famlly's use during her natural hfe"-the
Court held that the husbands right did not at
taeh.
In Jamison Va Brady Il Il. 465 be.
quest to married woman for her own use is
equivalent to a bequest 10 her for her separate
use, and in an action by the husband and wife
for the legacy, debt due By the husband to the
testation cannot be set ofl, against it.
So also in Hech vs.. Clippenger Barr, 3S5,
the words ITO be paid to hsr semi-anuually
during her life and afterwards 10 her children"
The words OF the VIII under consideration
are" TO be paid to her for the term OF her na.
tural life in quarterly payments, and after her
death" to her children.
We are Of the option that these words are
sufficient to establish trust in the Executors
for the separate use of Mrs. Hasslocher free Of
the control Of her husband ami that this was
the teslators intention.
But the legacy Of One thousand Dollars is
not in trust 1t is direct gift to Mrs. Hassloch-
er-viz: :" give. devise and bequeath to my
daughter Charlotte Hasslocher One Thousand
Dollars
Chancellor Kent says G. Kent. Com. Section
1851 US to the wite's chooses IN action, they are
not vested absolutely 10 the husband. but the
husband has power TO sue Tor and recover. or
relt ase or assign the same and when recovered,
aud reduced to possession and not otherwise, il
is evidence Of conversion OF the same to bis
own use and the money becomes, IN most cases,
sbso!utely his own. The rule is the same il a
legacy or distribuuve share sccrues To the wife
| during coverture."
In Hayward vs.. Hayward 20 Pick, 5lT-lhe
Court held, If disIri0utive share of intestate
personal estate accrue to married woman dur
ing coverture. and the husband die before the
decree of distribution, ami without any act on
his part reducing 1t to possession it survives to
! the wife.
But in the same volume Wheeler vs. Bowen
| 20 Pick 500 the Court held that distrbutive
share of an iutestate's estate in the hands Of an
administrator can be held under the trustee pro.
cess for the debts of the husband.
II the husband die pending the suit, the
trustee will be discharged. as the wiie's right
OF suryivorship is not devested until judgment.
| Strong vs. Smith l Metcalf 40. In his case
Shaw Oh. j. says " nothing short of judgment
will amount to such reduction to possession as
20 bar the wiie's tight of surviyorship We
| think also that the creditor Of the husband has
no higher or better right than he himself had"
In Parsons vs.. Parsons (ls3s) 9 n. II. 32l,
all of the authorities are ably received By Parker
| Oh. j. The Court. in this case held that
neither legacy to wife. nor a distributiye
share in an estate, in which she is interested,
vests in the husband absolutely. They are not
like her personal property in possession, which
becomes absolutely his
| Ia Marston vs.. Carter u n II. l59 the
SINE Judge says the decisions here have not
gone so far as to authorize the creditor, by any
process, TO appropriate legacy or dlstrioutiye
share Of the wife TO the payment OF the hus-
bands debts. without his assent aud before he
/ has asserted title to it.
| In Wheeler vs.. Moore Is y. Fl. Qs43) AIS,
| the Court held that the disIrbutive share of the
! wife in an irtestate estate can not be attached,
/ by the trustee process tor debt Of the hus-
/ band. until he has done some act to reduce il to
possession. or in some way asserted right TO il.
Judge Parker says I'D 4S2) " the principle
| which will authorize the creditor to interfere,
and appropriate the property of the wife to the
/ payment OF the husbands debts, is not appar-
ent to Us. The right of the husband to take
the dlstributive share OF the wife TO his own use,
| is a marital right. A creditor cannot exercise
| rights of that character against the will of the
I husband"
See also opinion of Chief Justice Marshall in
| Gallegu vs.. GalIegO's Exors, 81 Brock. 2S7,
since the claim of the creditor extends only to
the property of the debtor it cannot reach
/ legacy until it becomes his property. A relin-
qpishment by the husband of his marital right to
legacy bequeathed 10 his wife, is valid as to
the creditors OF the husband, and Court OF
Equity will not interpose its authority to compel
the husband to reduce the legacy into his pos
session. for the purpose of subjecting it to their
| claims"
This principle is reafirmed in PIERCE vs.. Dus-
| tin Foster N II J All, and in this case the
Court refused to allow a set-Of against wife's
/ legacy, the demands against the husband.
! In the case before Us We adopt the rule OF the
/ New Hampshire Courts and as Eugene Won
/ Hasslocher has not reduced his wife's requests
/ to possession nor exercised his marital right to
! them We cannot compel him to do this for the
| purpose OF subjecting them to the claims OF
creditors
! In the Bill both husband and wife join in ask
| ing the intervention of the Court in order that
the wife, Charlotte Hasslocher may receive to
her use and benefit the legacy of Que Thousand
| Dollars and the full income OF the Twelve
/ Thousand Dollars without offset for or bg reason
| OF said Promissory Note.
The reasoning above adopted as regards the
! legacy of One Thousand Dollars will also apply
| to the income of the Twelve Thousand Dollars.
| To allow these funds 10 be the subject OF sat-
| of of demands against the husband without his
or his wiie's consent would be to defeat the OBJ
/ ject of the Will
| No reference was made 10 argument to the
case OF =" 10 the matter of the Estate OF Napua
/ Zuppein kaIaahine" Bird Hawaiian Rep. p 323,
/ Oct. 1871, which apparently involves the qnes-
ton here at issue where this Court held that the
husband was entitled as against the heirs at law
| of his wife to receive her personal property
| which had been vested in trustee although be
| had not reduced the same to his possession dur
ing her lifetime. Bat 10 that case the husband
made the claim for himself. He asserted
marital right which it belonged to him to exer-
else il he so pleased. The principle of the rule,
namely, that the husband having assumed the
obligation OF his wifes debts and OF her support,
is entitled to the aid Of her property goes no
| further. Il will not avail his creditors. Again
citing from Chief j ustiee Parker in Msrston vs..
Carter :. creditor without the assent OF the
husband cannot reach the property unless the
I u