WALTER'S ESTATE, 2 Whart. 246

The opinion of the Court was delivered by Rogers, J. In Yohe v.

Barnitz, (1 Binn. 365,) it was for the first time decided, that the share of a wife, which is directed to be paid in money,, after partition of the real estate. of her intestate parent, does not remain in the nature of real estate, but is converted into personal estate, and is altogether in the power of the husband, who may dispose of it in any way he may think proper. ' Chief Justice Tilghman regrets that the courts of this state are not vested with the power exercised by the Court of Chancery in England, of insisting on some provision for the wife, when the husband applies to them for the purpose of getting possession of her personal property.

And Justice Duncan, in Stoolfoos v. Jenkins, (8 Serg. & Rawle, 172,) and the present Chief Justice, in Ferrer v. The Commonwealth, (8 Serg. Rawle, 342,) express the same opinion, in even more decided terms, of the unjust operation of the law on the rights of married women.

For remedy of the injustice which resulted from-the want of the specific powers of a court of chancery, to prevent this change of the real estate of married women into personalty, so far as respects the real property of the wife, converted into money by a sale or appraisement, under an order of the Orphans’ Court, it is now provided, that the money so raised shall not be paid over to the husband, until he gives security in the manner and for the intent, in the act presci'ibed; with this proviso, that if the wife, being of full age, on a separate examination, the husband not being present, shall declare before one of the judges of the same court, &c., that she does not require such moneys to be secured, and that she makes the declaration freely and voluntarily, without any threats or compulsion on the part of her husband, the full contents and legal effects of such declaration being first made known to her by the judge, and the said declaration or acknowledgment be certified by the same judge, and filed of record in the said Orphans’ Court, then, and in such case, the husband shall not b.e required to secure the said moneys, in the manner directed in the preceding part of the section.

The same

section prescribes the form of the declaration of the wife and the certificate of the judge ; and in both, the sum to which the wife is entitled, as her portion, must be inserted. In this case, the wife made the declaration and the judge gave the certificate, in the manner and form directed in the act, which was duly filed in the Orphans’ Court.

But it is now alleged, on the part of the wife; that at the time the declaration was made by her, the sum, a portion of which she was entitled to, was not ascertained; or if ascertainéd, she was not correctly informed of the amount; and for this reason, she objects to the payment of the money to the husband, without the security required by the act; and prays the court, that on failure to comply with the terms of the áct, the same may be invested in trustees for her use. And as to the fact, we have no doubt.

On the face of the declaration itself, the amount appears to be uncertain; and the sum inserted seems to have been intended to cover any less sum, to which, by abatement, it might be reduced, or which might afterwards be ascertained to be due, as her portion or share of the estate. And this further appears from the subsequent settlement of the account by the administratrix, by which it is found, that instead of $200, the sum mentioned in the certificate, she was entitled, after payment of the debts of the estate, to but $125, as her portion.

The question, therefore, fairly arises, whether a declaration made by a wife, before her portion is fixed and ascertained, is binding upon the wife. This provision is intended for the protection of the wife, by preventing the payment of the fund to the husband, against the wishes of the wife, to the prejudice, and sometimes ruin, of the wife and children, and of the true interests of the husband himself. The act should therefore receive such a construction, as will best protect the interest of the wife and children, which is the main object of this section.

The. legislature doubtless intended, that before she should be divested of her portion, even by her own consent, she should havé precise information of the quantum of the estate to which she was entitled; and for this purpose, the Judge who takes her acknowledgment', is directed to make known to her, the full contents, and legal effects of the declaration ; which cannot be done to any good and beneficial purpose, unless the amount of her share of the estate, which she is about to relinquish, for the benefit of her husband, is previously settled.

It is essential, that she should be correctly informed on this point; as it may, and doubtless in many cases would have a material influence on her determination, to allow the money to be paid over to the husband; and a concealment in this particular, would render her liable to imposition, and undue practices by those whose interests it might be to procure from her a relinquishment of her'rights.

And this is further shown to have been the intention of the legislature, from the form of the declaration and certificate, in which the,sum must be inserted; which pre-supposes that it had been before ascertained and fixed. And this construction derives additional force from analogy to the decisions in chancery; from which this

section is taken; for in that court, when a married woman will consent to have part of her portion paid to the husband, the court cannot refuse it. Thus in Dimmock v. Atkinson, (3 Bro. C. R. 195,) although it was strongly opposed by the trustees in a marriage settlement, yet the wife persisting, after a long examination, in her consent, the Lord Chancellor, after taking until next morning to consider of it, made the order on the petition of the husband, to háve part of his wife’s portion, (which was in court,) paid to him.

But although the court feel themselves bound, however reluctant they may be to make the order, when she consents, yet they never take her consent, until the amount of her portion is ascertained. Sperling v. Rookfort, (8 Ves. 164.) Woollands v. Crowther, (12 Ves. 178.) And in Edmonds v. Townsends, (1 Anstr. R. 93,) it was held, that the court cannot take the consent of the wife' to the disposal of her fortune, unless the amount is ascertained.

In this cause, a feme covert attended to give her consent to the portion of the residuum of an intestate’s estate being paid into the hands of her husband; but as thei’e were some outstanding debts, (although almost desperate,) and the exact sum which would come to her, not being in other respects ascertained by the master’s report, on account of some demands on the estate, which if allowed, would in some respects diminish her share; the court said they could not take her consent, till the question was fixed.

It was then proposed, that her consent might be taken for the whole, which her share would amount to, without any deductions ; and it was argued, that such consent would cover any less sum, to which by abatement, it might be reduced.

But by the Court, “ That would be in effect, taking her consent now, .to a sum to be ascertained at a future time; and thereby deprive her of the power of changing her mind in the interim, which we ought not to do.” It is therefore not enough that the sum mentioned in the declaration is gr’eater than her share; for still the objection remains, that the amount is not yet fixed, but remains to be ascertained in future.

This construction not only gives the wife all the information as to the amount of the fund, but it has the further advantage, that it avoids precipitation and haste, in the disposition of it; as she cannot part with her inheritance, until the estate is settled. Hence the Judge, who took the place of a Chancellor, took the acknowledgment of the wife, but it was on the misapprehension of the facts; for if he had known, that the estate remained unsettled, it would have been his duty, to refuse to take her acknowledgment.

The money is still under the control of the Court, and remains in the same situation, as if no declaration of consent had been made. The husband is unwilling to comply with the terms of the act; and it only remains for the Court to appoint a trustee, to secure the money for the separate use of the wife. It must be remarked further, that when a wife has given her consent, in the manner pointed out by the act, she cannot afterwards retract; but until her consent is obtained in the manner directed, the Court cannot order the money to the husband, until the requi-. sitions of the act are fully complied with.

The order of the Court dismissing the petition of Hannah Ann Truman is reversed; and the Court direct that the money be paid to a trustee, for the separate use of the said Plannah Ann Truman. Judgment reversed.