Oglander v Baston
| Jurisdiction | England & Wales |
| Judgment Date | 27 April 1686 |
| Date | 27 April 1686 |
| Court | High Court of Chancery |
English Reports Citation: 23 E.R. 540
IN COURT, LORD CHANCELLOR.
540 OGLANDER V. BASTON 1VEBN. 396. Case 366.-oglander versus baston. 27 Aprilis [1686]. In Court, Lord Chancellor. [1] Eq. Ca. Ab. 69, pi. 7, S. C. A sum of money awarded to the husband, which he is entitled to in right of his wife, will go to his executor, and will not survive to his wife. The plaintiff being entitled to the surplus of the personal estate of /. S. as residuary legatee, and a difference arising between the plaintiff's husband and the executor touching the quantum of this residuum; it was referred to arbitration, and an award is made that the executor of /. S. should pay £1500 to the plaintiff's husband; but before any thing further was done, the husband dies, and this bill was now brought by the wife against the executor of her husband, and also against the executor of I. S., and the sole question was, who had the right to this £1500, whether the executor of the husband, or whether it should survive to the wife. Lord Chancellor. The award is a sort of judgment, and the arbitrator having awarded that the £1500 should be paid to the husband, that has changed the property, and vested it in the husband.(l) The case of Norden and Level (Sir Thomas Jones Rep. 80) was cited, where the husband had a term in right of his wife, and only took a covenant for further assurance ; and it was adjudged, that altered the property.(2) On the other side it was said, that if the husband grants a rent-charge out of a lease, which he has in the right of his wife, that does not change the property; but if the husband makes a demise of the term itself, though but for a fortnight, that will alter the property. (3) Per Cur'. If there be a bond-debt due to the wife, the husband may sue alone without joining his wife; (4) but in case the wife was joined in the action, and judgment is recovered, the judgment will survive to the wife; (5) but not being joined, the interest does vest by the judgment in the husband, and will go to his executor. (Scire facias by baron and feme upon a judgment recovered by the feme while sole, and after execution awarded the feme dies, it survives to the husband, Woodyer v. Gresham, Salk. 116.) (1) Vide Anon. Com. Rep. 31. Sed vide Bond v. Simmons, 3 Atk. 21, where said by Lord Hardwicke, Chan., that if at law husband had recovered a judgment for debt of the wife (i.e. debt accruing before the marriage, and where the action shall survive to the...
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