delivered the opinion of the Court. The general tule of law is undoubtedly, that the husband has the absolute authority and control over the choses in action accruing to the wife during coverture. He may collect them and appropriate the avails to his own use ; and it is in his power to release and discharge them. The proceeds of them, when received by him, become absolutely his, and the right of the wife by sur vivorship would in such a case be lost.
While this general principle is well settled, still there have been various cases where, from the acts of the husband, those interests which would otherwise have vested absolutely in him, have been held to survive to the wife.
The doctrine that a feme covert has no civil capacity, must be taken with many qualifications ; and although she cannot during coverture act separately from her husband, yet with his consent she may become a party as grantee to a deed, or obligee to a bond, or payee to a promissory note ; and when thus made a party, new rights may be acquired by her. This may be effected by a contract made jointly with the husband and wife, or it may be by a contract with her alone ; and in either case, upon the survivorship of the wife, these interests, although ac-(ruing during coverture, will vest in her.
The general doctrine of the capability of a feme covert thus to become a party to a contract, and of the extent to which courts of law will protect her interest, is much discussed in the case of Draper v. Jackson, 16 Mass. R. 480. It was a case of a controverted title to a note and mortgage made to the husband and wife during coverture, and the husband having de ceased, the question was whether the administrator of the husband, or the surviving wife, had the legal right to the property in them. It was urged .n this case, that the note and *560mortgage being thus executed during coverture, the wife was incapable of contracting and the property vested absolutely in the husband. The question was fully considered and a very elaborate opinion delivered by Jackson J., sustaining the doctrine, that the husband might by his act authorize a contract in their joint names, and that such a contract would enure to the benefit of the wife, if she survived the husband.
But a case more analogous to the present, is that of Stanwood v. Stanwood, 17 Mass. R. 57. This case, it must be admitted, was settled on very liberal principles as regards the rights of the wife ; and carries, as far as we should be inclined to go, the doctrine as to the effect of the husband’s acts and declarations in qualifying and restricting what would otherwise clearly have been considered as a reducing to possession of property accruing in the right of his wife.
The facts in that case were briefly these. Mrs. Stanwood at the time of her marriage, held in her own right nine shares in the Newburyport Bank, the charter of which having subsequently expired, her husband subscribed in her name for five shares in a new bank to which the holders of shares in the old bank were permitted to subscribe to a limited extent, leaving four hundred dollars due to Mrs. Stanwood for the remainder of her shares. This amount thus due was entered in the books of the bank to the credit of the husband as a deposit by him, and a book stating the deposit was delivered to him ; and thus it remained at the time of his death. This money, Mrs. Stanwood claimed, had never vested in her husband. To rebut the inference of reduction to possession by the husband, arising from the facts above stated, it was shown that at the time when the money was placed to the credit of the husband in the books of the bank, he stated that it was not his money but his wife’s, that he did not want the money, but would leave it in the bank for her. The Court held, that there was no reduction of the property to the possession of the husband, inasmuch as he disaffirmed at the time any such purpose.
Testing the present case by the doctrine contained in Stan-wood v. Stanwood, the result to which we shall arrive is very obvious.
The declarations of the husband assenting to the making this *561note payable to his wife, are full and explicit. The case finds, that it was done in pursuance of his wishes, that she might be the sole and exclusive owner of it, and that the husband frequently declared, that it was not his intention to receive any part of the principal or interest to his own use. Here was then an assent on the part of the husband, that the wife should become the payee of this note, and an explicit disaffirmance of any purpose of reducing to his possession the money secured for the accruing interest, which was the consideration of the note, the avails of which are now demanded by his executor. These acts and declarations were, in our opinion, sufficient to authorize the making the note to the wife as payee, and to secure to her the right to hold the same to her own benefit in case she survived her husband. Nor is the effect of them to be controlled by the will of the husband making the devise therein to his wife conditional upon her making no claim for such property as had heretofore been considered as belonging to her, unless the provisions of the will are accepted by the wife. His declarations to a third person, that there was no agreement with his wife as to her interest in this note, are equally unavailing to defeat her rights as survivor. Having by his direct assent permitted the note to be taken in her name, and having abstained from exercising any acts of control over it, during his lifetime, his naked declaration to a stranger, denying any interest in his wife, will not affect the legal rights of the parties. While the husband was living, he had the full power to collect and appropriate to his own use, this note, as well as all other choses in action belonging to his wife, and this notwithstanding he had permitted her to take the note in her name and with the avowed purpose that she should hold it as her separate estate ; but if this power thus to change the property by reducing it to possession, was not exercised by the husband while alive, it does not devolve upon his personal representative. The right of the wife as survivor at once attaches, if the husband dies without reducing the property to his possession.
It was further contended on the part of the plaintiff, that the defendant had relinquished her right to hold this note, by her acceptance of the devise in the will of her husband. No ex*562press assent to the terms of the will or acceptance oí the devise by her is shown, but it is said to be properly inferred from her occupation of and exercising acts of ownership as to the dwellinghouse of her late husband, the use of which was devised to her during her life. We do not think the facts disclosed warrant the inference, that she was acting under the will. The remaining in the dwellinghouse and permitting another person to occupy a portion of it for a short time, are acts too equivocal in their character to authorize the conclusion, which the plaintiff would draw from them. Under the provisions of the Revised Stat. c. 60, § 6, she might by her right of dower, independent of the will, continue to occupy the dwellinghouse with the heirs of her husband, so long as the heirs did not object. In questions of this kind great liberality is exercised in favor of the widow in the construction to be put upon her acts. Wake v. Wake, 1 Ves. jun. 235.
Upon the whole matter, the Court are of opinion, that the property in the note vested in the defendant upon the death of her husband, and that she is entitled to retain the avails of it to her own use.