Dennison v. Nigh

Per Curiam. The decision of this case depends not on the abstract question whether a legacy may be attached, but on the nature of the interest in another respect. It is enough for the defence of the garnishee, that the ownership is not in the defendant, but in his wife; the interest bequeathed to her being a portion of her father’s estate when turned into money. Thought marriage is in effect a gift of the wife’s personal estate in possession, it is said to be but a conditional gift of her chattels in action; such as debts, contingehrinterests,’ money owing her oil account of intestacy, or orphan’s portions in the hands of the chamberlain of London. 2 Ventr. 341. Perhaps the husband has in strictness but a right to make them his own by virtue of the wife’s power over them, lodged by the marriage in his person. But if these be not taken into his possession, or otherwise disposed of by him, they remain to the wife ; and if he destines them so to remain, who shall object 1 Not his creditors, for they have no right to call on him to obtain the ownership of his wife’s property, for their benefit, especially as their debts were not contracted on the credit of it; and until he does obtain it, there is nothing in him but a naked power, which is not the subject of an attachment. 'The case put in 1 Roll. Abr. 551, of goods tortiously taken from the defendant in the attachment by the garnishee, comes entirely up to the principle. It was held, that the goods could not be attached, because the defendant had but a right of action for the trespass. Without, then, determining whether a legacy can be attached in any case, we deem it enough for the present question, that the husband had but a naked power over the subject of this bequest. Judgment affirmed.