delivered the opinion of the court, October 6, 1884.
The learned judge of the court below held, that the title of Mrs. Goodyear to the land sold under the proceedings in partition, was entirely divested by that sale, and that the estate which up to that period she had in the land, was, by virtue of those proceedings, converted into personalty; that except for the statute of March 29th, 1882, her husband would have had the right to have taken it absolutely, and that this right would, in such case, extend not only to the money payable before her death, but also to that payable after that event, as well as to her share of the dower fund due after the death of the intestate's widow, who survived Mrs. Goodyear. In support of this ruling there was a citation of Spangler’s Appeal, 12 Har. 424. That there is here a correct statement of the husband’s rights prior to the passage of the Act above cited, is not open to doubt. And though eminent judges may have made some strong statements as to what they would or would not do in order to defeat this right of the husband, yet has the rule never been denied, nor an attempt made to defeat it. What the husband was entitled to, was not merely the money as it became due, from time to time, from the proceedings in partition, but to the securities which were taken for the price of the land. They as well as the money that might happen to be paid down, were the personalty into which the land was converted, and these he might dispose of by assignment or otherwise as he saw fit. Hence, whether these dioses in action, by whatever name they might be called, became due and payable before or after the wife’s death, could make no difference, since, by force of law, they became the absolute property of the husband, and his right thereto was fixed at the time of the conversion; in other words, at the consummation of the partition. Then came the Act of 1832, as above cited, which, whilst it made no difference on the doctrine of conversion as previously held, abolished the husband’s unqualified right to claim the proceeds of the partition as his own. It gave to her the control over, and ultimate right in, her separate property, to the extent at least of the corpus of the partition fund, and provided that it should vest in her as though it were realty. There was thus a partial anticipation of the Act of 1848. But this Act went no farther than as above stated, and it was not intended to absolutely lock up her estate so that she could not use it as she might judge proper. On the contrary, it was held in the cases of Hinney v. Phillips, 14 Wr. 382, and Martha Mann’s Appeal, Id. 375, that a married woman, as well before as since the Act of 1848, might dispose of her separate estate by a gift of it to her husband. No one, I suppose, would con*132tend that even under the Act of 1832, Mrs. Goodyear might not have given to her husband the money arising from the partition as fast as she received it. But the legislature wisely provided that as to that species of the wife’s personal property, acquired as in said Act stated, the husband should not as theretofore, assume the ownership of it as of course, but only with her assent. That about such assent there might be no doubt; that she might be protected from the fraud or. coercion of her husband, and that when she did conclude to give to him property secured to her own use, the gift might be free and open, the Act provided how and in what manner her assent should be given, and her acknowledgment thereto taken. But it is contended that even after this solemn form has been complied with the wife does not really part with her property in the fund, but thereby only waives the security otherwise required by the statute; in other words, he must still hold the fund as trustee for his wife. This reading of the pi-oviso is entirely too narrow; for it must not be forgotten that the Act is speaking in view of the well known previous right of the husband over his wife’s personal property, and the intention is now to curtail and restrain that right. He may still have the money, provided he will give “security to the satisfaction of the court that the amount thereof, or so much thereof as the court may deem frofer, be paid after his death to his wife, or if she shall not survive him, to her heirs.” And in case of his refusal or inability -to secure the same, it may be vested in trustees.
Then comes the proviso, which, upon the properly acknowledged and certified declaration of the wife, setting forth “ that she does not require such moneys to be secured,” provides that “ then and in that case the husband shall not be required to secure the said moneys in manner aforesaid; ” in other words, he takes the moneys just as he did before the Act. And this is obvious enough, for if he takes the money by virtue of his wife’s declaration, and without security, how can the court interfere to say- how much of it shall be held in trust for the wife and her heirs ? The intervention of the court is thus altogether excluded. The design of the Act, as we have before intimated, is not to destroy the husband’s right altogether, but so to control and limit it that the court may compel him to make a proper provision for his wife out of her own estate, and certainly with this power to compel him to give security, the entire control of the court over the matter falls, and the husband is left to take as he did before the passage of the Act. That this is a correct interpretation of the statute is further demonstrated by the fact that the declaration prescribed by the Act, requires, inter alia, that the married woman shall *133certify that she consents and agrees that the moneys arising from the partition shall be paid to her husband “without any condition or security whatever.” In this manner the statute interprets itself in providing for an unconditional payment of the money to the husband, thus vesting in him an unqualified property in all the payments of the partition fund due, or to become due; and so absolute is this disposition of this property, that it was held, in Walter’s Estate, 2 Wh. 246, that when the wife had thus given her consent to the receipt of the fund by her husband, she could not afterwards retract it.
The learned counsel for the plaintiffs in error seem to think that in Beyer v. Reesor, 5 W. & S. 510, they have a case which supports their contention. We are of a different opinion. It was there held that the declaration and separate examination of a married woman, required by the Act of 1832, in order to entitle the husband to the wife’s share of her deceased father’s estate secured by recognizance in the Orphans’ Court, must be filed during the lifetime of the wife, otherwise at her death it will go to her heirs at law. Both husband and wife were dead, and suit was brought by the administrator for the recovery of said share for the purpose of distribution among the husband’s next of kin to the exclusion of the wife’s heirs. The claim thus made was defeated solely on the ground above stated, and it seems to be admitted throughout the discussion of the ease, that had the declaration been properly filed, the money would have belonged to the husband. “ Nothing,” says the learned judge, who delivered the opinion in the court below, which was approved by this court, “ can divest it from this course of distribution,” that is, distribution on the wife’s death, to her heirs, “ but the consent of the wife given under the guards carefully provided by the Act.” Under the qualification here introduced by the word “ but,” we are certainly warranted in saying that had the statute been strictly complied with, as in the case in hand, the result would have been different ; the money would have gone to the next of kin of the husband, and the case would thus have exactly covered the present contention.
The judgment is affirmed.