Bell, J.
We look for the law of this State, in relation to the rights of husband and wife in the property of the wife, to the later decisions of our own Court, sustained as they have been by the spirit of our legislation. In Parsons v. Parsons, 9 N. H. Rep. 321, the law is thus laid down as to some interests of the [356]*356wife: “.Neither a legacy to a wife, nor a distributive share in an estate in which she is interested, vests in the husband absolutely. They are classed with, and sometimes called her choses in action. If the husband reduce them to possession, as he may, they become absolutely his own, and he may release them, or assign them for a valuable consideration, and by a deed to which she is not a party. But until he has reduced them into possession, or in some other way barred her right, he has only a qualified interest; and if he die first, the right survives to her. And possession by the husband, as executor or trustee, is not a sufficient reduction into possession to bar her of her right.”
In Marston v. Carter, 12 N. H. Rep. 164, it is said, “ But we hold, that a legacy to a wife does not vest absolutely in the husband. He has a right to reduee it into possession, but if he does not exercise this right, it survives to his wife. And he may decline to do this, and permit his wife to hold it to her own separate use. The decisions here have not gone so far as to authorize the creditor by any process to appropriate a legacy or distributive share of the wife to the payment of her husband’s debts without his assent, and before he has asserted a title to it. The right of the creditor must depend upon the particular views to be taken of the right of the husband. If the right of the husband, until some act be done by him, be regarded not as a vested right in the property itself, but as a marital right or power, which he may exercise by some act of ownership, upon which an interest in the property becomes vested, a creditor, without the assent of the husband, cannot reach the property, unless the case is an exception to the general rule. We are not aware of any other marital right which the law permits him to exercise in his character of a creditor.”
In Wheeler v. Moore, 13 N. H. Rep. 481, it is said “ the husband’s right to claim the property,” (a distributive share, fallen to the wife,) does not make it his, nor is he obliged to exercise that right. He may omit to* do so, and on his death it will survive to the wife, not by descent from him, or title derived through him, but in her own right, as heir of her sister. If the husband refuse or neglect to reduce it into possession, orto assert [357]*357a olaim to it, it is clear, that after his death, neither his heirs nor his creditors can assert any title to it, nor could his administrator in their behalf. The right of the husband to take the distributive 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 husband.
The case here shows that the tenant purchased part of this property, and other land adjoining, with money which had fallen to her from estates of some of her relatives, deceased, which her husband had never claimed nor reduced to his possession, and which had been loaned on a note payable to her. At this stage the property seems to come precisely within the principle of the cases decided here.
While such decisions have been made by the Courts, the law in relation to the separate estate of the wife has been greatly changed by the legislature, and the wife may now hold all her own property independent of the control of her husband, if such is the marriage contract of the husband and wife, without the intervention of a trustee ; and she may in the same manner hold and dispose at her own pleasure of all property given her by deed or will expressly for her exclusive use, with or without a marriage contract. In respect to all such property, married women in such cases have the same rights and remedies in their own name, both in law and equity, and are subject to suits upon any contracts respecting 'such property, or for wrongs done in respect to it, as if they were unmarried. Stat. 1846, ch. 327, p. 308. We regard this course of legislation as giving the sanction of the legislature to the decisions of the Court, in relation to the wife’s estate, and as justifying the extension of the same general view to other cases, not embraced in the terms of those decisions, but falling within the like reason.
In this case it is said by the plaintiffs, that, if the decisions made here are sustained, they do not reach this case. First; as to the second parcel of land. It was purchased with money derived in part from the sale of a portion of the wife’s first purchase, and in part from damages awarded by the selectmen for a part of her land taken for a highway. The Court instructed [358]*358the jury, that both these sums, if not claimed by the husband, were the property of the wife. It is contended that this instruction was erroneous ; because, it is said, the husband became, by mere force of law, and without any act of his own, seised of an estate of freehold in his wife’s land, for their joint lives, or for his own life, and the sale was a sale of his estate, as well as of his wife’s, and the damages were also awarded for his interest, as much as to the wife for the residue ; and to the extent of that interest, the money received was his money, and the deed of the second parcel, if the money so received was applied to the purchase of land, would make his wife a trustee for him for so much of the purchase-money as legally belonged to him, by virtue of a resulting trust.
That a husband becomes so seised of a life-estate ’in his wife’s land, we are not disposed, and it is not necessary for us to deny in this case; nor the right of his creditors to avail themselves of such estate in discharge of their debts, if they make their levies before he has parted with his estate, though such a claim could hardly be supported, as to the wife’s separate estate under the statute of 1846. The demandant here, who stands in the place of the creditors of Ara Morrill’s estate, claims under no such right; but his ground is, that to the extent of the husband’s interest for life in the first purchase, he was interested in fee in the second purchase, because to the extent of the money paid for his interest, he was owner of the fund applied to the second purchase. By consenting to the sale he acted as owner, and claimed and reduced the money to his own possession, and the money being once by his own act made his own, he could not by any act of his, bestow it upon his wife, so that his creditors could not reach it. We think there is no difficulty arising from this view. If we regard the right of the husband to his wife’s estate as a marital right merely, to be exercised as to the property she may receive as distributee of her relatives, at his election, then it seems to follow, that if he elects not to claim it, no. interest vests in him; and in equity and in justice, if the property comes to be placed in a situation where his creditors may seize and hold it, it is still the' property of the wife, and when its situation is again [359]*359changed, the creditors of the husband have lost their opportunity to fasten their debts upon it. Thus, though perhaps in point of strict law, while the wife’s property is vested in land, the creditors may levy on his life-estate in it, yet, as between the husband and wife merely, the husband has no separate estate, no personal interest.
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Bell, J.
We look for the law of this State, in relation to the rights of husband and wife in the property of the wife, to the later decisions of our own Court, sustained as they have been by the spirit of our legislation. In Parsons v. Parsons, 9 N. H. Rep. 321, the law is thus laid down as to some interests of the [356]*356wife: “.Neither a legacy to a wife, nor a distributive share in an estate in which she is interested, vests in the husband absolutely. They are classed with, and sometimes called her choses in action. If the husband reduce them to possession, as he may, they become absolutely his own, and he may release them, or assign them for a valuable consideration, and by a deed to which she is not a party. But until he has reduced them into possession, or in some other way barred her right, he has only a qualified interest; and if he die first, the right survives to her. And possession by the husband, as executor or trustee, is not a sufficient reduction into possession to bar her of her right.”
In Marston v. Carter, 12 N. H. Rep. 164, it is said, “ But we hold, that a legacy to a wife does not vest absolutely in the husband. He has a right to reduee it into possession, but if he does not exercise this right, it survives to his wife. And he may decline to do this, and permit his wife to hold it to her own separate use. The decisions here have not gone so far as to authorize the creditor by any process to appropriate a legacy or distributive share of the wife to the payment of her husband’s debts without his assent, and before he has asserted a title to it. The right of the creditor must depend upon the particular views to be taken of the right of the husband. If the right of the husband, until some act be done by him, be regarded not as a vested right in the property itself, but as a marital right or power, which he may exercise by some act of ownership, upon which an interest in the property becomes vested, a creditor, without the assent of the husband, cannot reach the property, unless the case is an exception to the general rule. We are not aware of any other marital right which the law permits him to exercise in his character of a creditor.”
In Wheeler v. Moore, 13 N. H. Rep. 481, it is said “ the husband’s right to claim the property,” (a distributive share, fallen to the wife,) does not make it his, nor is he obliged to exercise that right. He may omit to* do so, and on his death it will survive to the wife, not by descent from him, or title derived through him, but in her own right, as heir of her sister. If the husband refuse or neglect to reduce it into possession, orto assert [357]*357a olaim to it, it is clear, that after his death, neither his heirs nor his creditors can assert any title to it, nor could his administrator in their behalf. The right of the husband to take the distributive 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 husband.
The case here shows that the tenant purchased part of this property, and other land adjoining, with money which had fallen to her from estates of some of her relatives, deceased, which her husband had never claimed nor reduced to his possession, and which had been loaned on a note payable to her. At this stage the property seems to come precisely within the principle of the cases decided here.
While such decisions have been made by the Courts, the law in relation to the separate estate of the wife has been greatly changed by the legislature, and the wife may now hold all her own property independent of the control of her husband, if such is the marriage contract of the husband and wife, without the intervention of a trustee ; and she may in the same manner hold and dispose at her own pleasure of all property given her by deed or will expressly for her exclusive use, with or without a marriage contract. In respect to all such property, married women in such cases have the same rights and remedies in their own name, both in law and equity, and are subject to suits upon any contracts respecting 'such property, or for wrongs done in respect to it, as if they were unmarried. Stat. 1846, ch. 327, p. 308. We regard this course of legislation as giving the sanction of the legislature to the decisions of the Court, in relation to the wife’s estate, and as justifying the extension of the same general view to other cases, not embraced in the terms of those decisions, but falling within the like reason.
In this case it is said by the plaintiffs, that, if the decisions made here are sustained, they do not reach this case. First; as to the second parcel of land. It was purchased with money derived in part from the sale of a portion of the wife’s first purchase, and in part from damages awarded by the selectmen for a part of her land taken for a highway. The Court instructed [358]*358the jury, that both these sums, if not claimed by the husband, were the property of the wife. It is contended that this instruction was erroneous ; because, it is said, the husband became, by mere force of law, and without any act of his own, seised of an estate of freehold in his wife’s land, for their joint lives, or for his own life, and the sale was a sale of his estate, as well as of his wife’s, and the damages were also awarded for his interest, as much as to the wife for the residue ; and to the extent of that interest, the money received was his money, and the deed of the second parcel, if the money so received was applied to the purchase of land, would make his wife a trustee for him for so much of the purchase-money as legally belonged to him, by virtue of a resulting trust.
That a husband becomes so seised of a life-estate ’in his wife’s land, we are not disposed, and it is not necessary for us to deny in this case; nor the right of his creditors to avail themselves of such estate in discharge of their debts, if they make their levies before he has parted with his estate, though such a claim could hardly be supported, as to the wife’s separate estate under the statute of 1846. The demandant here, who stands in the place of the creditors of Ara Morrill’s estate, claims under no such right; but his ground is, that to the extent of the husband’s interest for life in the first purchase, he was interested in fee in the second purchase, because to the extent of the money paid for his interest, he was owner of the fund applied to the second purchase. By consenting to the sale he acted as owner, and claimed and reduced the money to his own possession, and the money being once by his own act made his own, he could not by any act of his, bestow it upon his wife, so that his creditors could not reach it. We think there is no difficulty arising from this view. If we regard the right of the husband to his wife’s estate as a marital right merely, to be exercised as to the property she may receive as distributee of her relatives, at his election, then it seems to follow, that if he elects not to claim it, no. interest vests in him; and in equity and in justice, if the property comes to be placed in a situation where his creditors may seize and hold it, it is still the' property of the wife, and when its situation is again [359]*359changed, the creditors of the husband have lost their opportunity to fasten their debts upon it. Thus, though perhaps in point of strict law, while the wife’s property is vested in land, the creditors may levy on his life-estate in it, yet, as between the husband and wife merely, the husband has no separate estate, no personal interest. He is in truth a mere trustee for the wife, having declined to take any interest for himself. When property so situated, is sold and becomes money again, it is hers. What she held herself, and what her husband held, merely as trustee for her, and refused to hold otherwise, is again exclusively in her own hands, as it was at first. By this view justice is done to all parties. The wife has what belonged to her and no more. The husband is not made the unwilling instrument of defrauding his wife of her estate ; and the creditors have no right to complain, because they have no just claim to apply the wife’s estate to pay the husband’s debts, any more than they have so to apply the property of his parents or children.
When the husband refuses to claim the estate fallen to the wife, or to reduce it to his possession, or in any way to interfere with it for his own benefit, it seems entirely unreasonable to contend, that his acts done for the purpose of enabling his wife to hold and manage the property, shall operate as a claim upon it, or a reduction of it to his possession. To give any reasonable effect to the doctrine, that the husband is not bound to exercise his right to appropriate his wife’s property to his own use, and that in default"of his claiming it, it remains the property of the wife, it must be held, that the joining of the husband in such acts of the wife as are necessary for the investment, or transfer, or use of the property, and which cannot be done by the wife alone, and acts done by the husband, merely and avowedly as the servant of the wife, if such acts are done in good -faith, will not operate either as a claim upon the property, or a reduction of it to the husband’s possession.
These views apply, equally, to the amount received as damages for flowing the cellar, and, we think, support the instructions given to the jury as to the last purchase. The note and mortgage was of, and for, property purchased by the wife, but they [360]*360were signed by the husband and wife. The deed of the wife being inoperative, and her note as such merely void, the deed must be signed by the husband, in order to bind the wife’s estate, and the note becomes effectual, as a specification attached to the mortgage. That the husband has so signed does not make the debt his, but if the purchase is made for the wife, and the security made for her debt, and upon her property, the law may well and reasonably regard the transaction just as the parties do. Here the question, by whose money the payments already made were discharged, was submitted to the jury, and the jury having found that those payments were made with the wife’s money, the husband’s estate could have no interest in the property by reason of his being a party to the mortgage.
The whole of this matter should, independently of technical rules, rest on the intention of the parties. If the husband in good faith refused to claim or reduce to his possession the property, which the act of Providence had given to his wife, while he did whatever was legally necessary for him to do to enable her to manage and dispose of the property, without any change of purpose on his part, it is just to all parties to give effect to intentions so honest and honorable.
We are aware, that the relation of husband and wife may afford opportunities for collusion to preserve the husband’s estate from his creditors, under color of its being the estate of the wife. But we think that there is little danger of evil to be apprehended from this cause, compared with the benefits which will result from giving a reasonable security and protection to the wife’s interest.
So long as the property of the wife can be clearly traced and distinguished; and so long as we can see the intention of the husband not to avail himself of his marital rights; not to claim the property, nor to reduce it into possession, and the case appears free from fraud or bad faith, there seems no good reason that the creditors of the husband should have the right to tbeat it as his.
Judgment on the verdict.