on May 21, 1903, and was subsequently petitioned into bankruptcy. The record contains no suggestion of insolvency previous to the assignment.

On November 18, 1902, Frederick M. Tucker borrowed of the appellant, Gertrude F. Tucker, certain corporate stocks, which will be referred to more particularly later, and assigned to her a seat in the New York Cotton Exchange as security for the return thereof. The assignment was formal in its nature, and described him as the borrower as well as the owner of the seat in the Exchange. It is very specific in declaring the sole individual obligation of Frederick M. Tucker. The record suggests that the Exchange seat was equitably the property of the partnership, and these proceedings seem to be based on that theory. There is, however, not the slightest indication that at the time of the transaction Mrs. Tucker knew that fact, or had any reason to know it, and she stands unprejudiced by it, and, on the face of the papers, Frederick M. Tucker dealt with it as his own property. Also, the only evidence which we find in regard to the party to whom the shares were loaned is what appears by the assignment itself, and by the testimony of Frederick M. Tucker that Mrs. Tucker loaned them to him, and he "put them into the concern." Therefore the transaction, on the proofs so far as brought to our attention, was a loan of the corporate stocks from Mrs. Tucker to Frederick M. Tucker. Mrs. Tucker's husband, Tracy H. Tucker, witnessed the assignment to her of the Exchange seat. Frederick M. Tucker testifies, and he is not contradicted, that Tracy H. Tucker procured the certificates of the various shares of stock from his wife, and delivered them to him, Frederick, and this at the time the assignment was executed. Thus the husband effectually assented to the transaction.

The present question arises out of the facts that the trustee in bankruptcy sold the Exchange seat free from all liens by an order of court, and that Mrs. Tucker filed a claim to be allowed out of the proceeds thereof the value of the corporate shares which she loaned as we have described. There is no claim, either pro or con, that any objection was made to the sale, or that Mrs. Tucker is not entitled to the same equity against the proceeds thereof that she had against the seat itself. Her claim was disallowed by the referee, on the ground that the corporate shares were given her by her husband in Massachusetts, so that, as was decided by him, the gift or gifts, as the case may be, were ineffectual as against creditors. The District Court affirmed the order of the referee, so that Mrs. Tucker appealed to us. It may well be observed that the case is not one of a proof of debt by a married woman against the estate of either her husband or his copartnership, but merely an assertion of title to her own separate property.

The record is not absolutely clear as to the circumstances under which Mrs. Tucker received the corporate shares in question, but we think that, as a whole, it sustains what was apparently the view of the learned judge of the District Court. Mrs. Tucker gave no consideration for them. She never had any separate estate of her own belonging to her before she was married, or coming to her in any way afterwards, unless the gift, or gifts, to her of the corporate shares in question had sufficient validity to create one. There was evidently some

conversation before the marriage in reference to a gift to her in connection therewith, but whatever occurred was not sufficient to create what could be called an antenuptial agreement, or a positive agreement of any form. Therefore there was no consideration in that connection such as the law fully recognizes, although probably what was said before the marriage in a certain way led up to her acquisition of the stocks afterwards.

There were two acquisitions, differing as to dates and forms. She loaned Frederick M. Tucker 25 shares of the capital stock of the Amalgamated Copper Company and 40 shares of the preferred capital stock of the United States Steel Corporation. Mrs. Tucker was married on June 26, 1901. At that time her husband was the owner of 25 shares of the stock of the United States Steel Corporation and of the 25 shares of the Amalgamated Copper Company. These came to him from the estate of his grandfather in the form of certificates issued to the former holders, and indorsed by them in blank; and they were in that condition when he was married. Soon after marriage he took out new certificates for both lots in the name of Mrs. Tucker, and delivered them to her. Thus her title to them became in form fully perfected. The remaining 15 shares of the United States Steel Corporation were purchased by her husband on September 11, 1901, and, on purchase, they were transferred directly into her name by the corporation, and a certificate was issued to her, and immediately delivered to her; so that the title thereto never vested in her husband either in form or in fact, unless a vesting was compelled by the law by reason of the existing marriage relations. It is said, although this is not important, that the certificates were subsequently placed in a safety deposit box which was held in the name of Mrs. Tucker, and that she received the dividends and used the money as she saw fit. No question is made that, at the time these gifts were made, they were free from fraud so far as creditors were concerned, and were made in good faith in all respects. Yet it is apparent that no consideration which the law regards as valuable passed therefor from Mrs. Tucker to her husband. Mrs. Tucker maintains that this case is covered by our opinion in James v. Gray, 131 Fed. 401, 65 C. C. A. 385, 1 L. R. A. (N. S.) 321, passed down on July 6, 1904. Neither the question before us in that case nor the opinion involved or disposed of the issue which arises on this appeal. The matters brought to our attention in James v. Grav were strictly limited to the disposition of what we regarded as a part of the wife's separate estate. Starting with a statutory separate estate, we applied the broad rules of equity that, as between husband and wife, the chancellor will follow out and protect such an estate; and that was all. At page 408 of 131 Fed., at page 392 of 65 C. C. A., we stated as follows:

"We find that the real issue presented is whether under the federal bankruptcy statutes, which permit the allowance of equitable claims, a loan by a wife to her husband from property secured to her by the Massachusetts statutes creates an equity in her favor."

Thus we started with the fact that the wife, after coverture, had a separate estate, either at common law or under the rules of equity, or

under the statutes of Massachusetts. Here the dispute is whether she ever had any separate estate, a dispute which James v. Gray does not reach. Where there is a mere gift without any consideration which the law regards as valuable, no such clear equity arises as when the existing estate of a wife is dealt with, unless a third person is brought into the case. Then, if the property is conveyed to him, either in strict trust for the wife or that he may convey it to her, a clear equity arises against him in her behalf, which chancellors everywhere, including those in Massachusetts, admittedly enforce.

The opinions of the learned judge of the District Court declare that, under the statutes of Massachusetts, a gift from a husband to a wife is void; and it is established there that a married woman cannot acquire personal property by a perfect gift from her husband except through a third party. Spelman v. Aldrich, 126 Mass. 113, 117, decided in January, 1870. Spelman v. Aldrich raised an issue between the wife and a subsequent creditor on a state of facts which we will explain later. The opinion did not hold that a gift direct from the husband to the wife is void; but it was to the effect that it may be so far valid as to vest in the wife a right at the death of the husband as against his heirs and executors, invalid, nevertheless, as to his creditors. That this is the settled rule in Massachusetts is made apparent by the cases cited in Marshall v. Jaquith, 134 Mass. 138, 139, 140. Marshall v. Jaquith was between the wife and the husband's administrator, and the wife prevailed; but the authorities cited therein settled the law as we have said.

Although it was declared in some earlier authorities in some parts of New England that the English chancery system in regard to contracts between husband and wife had been created after our ancestors emigrated, and so had not become law on this side of the water, yet there has long existed no difficulty in Massachusetts in this respect, because, in consequence of there being no chancery jurisdiction in its early judicial history, the principles of equity were very largely adopted by the common-law courts. For example, the action for money had and received came in the Massachusetts Bay colonies to represent in no inconsiderable degree equitable rights and equitable remedies. So the common law of Masachusetts early adopted some of the chancery rules about the relations of husband and wife. Stanwood v. Stanwood, 17 Mass. 57, 59. Moreover, there is no difficulty in Massachusetts arising out of any rule relative to subsequent creditors. So far as that is concerned, if the gift to the wife, or any other mere gift, does not prejudice existing creditors, and is not actually intended to defraud future creditors, it is valid so far as any question of that character is concerned. Jaquith v. Massachusetts Baptist Convention, 172 Mass. 439, 52 N. E. 544.

One other difficulty existing at the common law does not exist under the Massachusetts statutes. As to personal property which lies in possession, the possession of the wife was at common law always the possession of the husband. This made a difficulty which was not wholly done away with in England, even in equity. But with reference to matters which lie in action, known as "choses in action," including

shares of corporate stocks, while, at common law, those vesting in the wife before the marriage and those taken in her name from others than her husband after marriage survive to her, even as against her husband's creditors and assignees in bankruptcy, unless reduced into possession during the life of the husband, as shown in Reeves' Domestic Relations (1888) 2, 7, Kent's Commentaries, vol. 2, 135, Addison's Law of Contracts (10th Ed. 1903) 248, 249, and Draper v. Jackson, 16 Mass. 480, yet they were all subject to the control of the husband, creating difficulties in making perfect gifts from him to his wife even as between them. Under the statutes of Massachusetts, however, the wife can take from a stranger a perfect title to personal property, as well as she could at common law to real estate. Rev. Laws 1902, c. 153, § 1. So it comes about that, as conceded by the trustee in this case, the wife, under the statutes of Massachusetts, may take by gift from her husband a perfect title to personal property with the aid of the intervention of a third person.

Section 3 of chapter 153, Rev. Laws 1902, is the provision which especially relates to transfers betwec husband and wife. It is not necessary that we should cite it at length, but it is plain that it might be so interpreted as, by implication, to prohibit a gift from husband to wife, either directly or indirectly, except so far as specified therein. But its practical construction, so far as this case is concerned, is that Spelman v. Aldrich, and other cases of its class, do not declare gifts which would be valid under the chancery rules to be invalid, unless as against creditors. Wherever it is clear that a gift was intended, and a chose in action has been put in the name of the wife, as in the case at bar, and only executors or distributees have interfered, the gift has been maintained.

We are thus clearly supported in two propositions by the local law of Massachusetts, as declared by the decisions of the Supreme Judicial Court and as conceded at bar. First, under the statutes of Massachusetts, as we have said, the wife may, after marriage, accept a gift of personal property, especially choses in action, which shall be free from the control of her husband; and, second, such a gift, may be free from the control of the husband's creditors, if it comes from strangers or from the husband through the intervention of a third person, the intervention to be of such a character as we will discuss and explain. Such has long been the rule, not only generally where the English language is spoken, but even in Massachusetts, when the third person receives from the husband property held under a strict trust for the benefit of the wife. When such is not the form of the gift, questions as to the form have arisen everywhere, as they do here; and such questions may, perhaps, be answered differently in different jurisdictions, according to the greater or less local anxiety with regard to preventing uncertainties as to titles to goods, and intermixtures thereof, which might operate to the prejudice of creditors and innocent purchasers. It is, however, only a question of the mere form of a gift which is involved in the case before us. Gifts by mere transfer from the husband to the wife are, as we have said, necessarily imperfect at common law, and are not always perfected in equity.

Eversley's Law of the Domestic Relations (2d Ed. 1896) 293. At page 294, however, the author states that a valid gift is accomplished by a transfer by the husband into the wife's name of stock, though previously purchased. This is the settled rule in England. In re Eykyn's Trusts, 6 Ch. D. 115, 118. This does not necessarily mean corporate shares, as in England the word "stock" includes, also, certain public and private obligations, usually known with us as bonds. There is no direct ruling in Massachusetts to the contrary, and the most that can be claimed here is by alleged analogy to Spelman v. Aldrich, 126 Mass. 113, already cited, which related to a deposit in a savings bank. The pith of that decision was that the interposition of a savings bank, under the circumstances of the case, was not such an intervention of a third party as gave the wife a new equity, so that, notwithstanding such interposition, the gift was directly from the husband to the wife, and therefore ineffectual as against the husband's creditors.

We are, however, forced to the conclusion that Spelman v. Aldrich, even if not practically overruled, cannot control us here. First, Spelman v. Aldrich was not a case of transfers of shares of stocks to the wife, requiring the active intervention of corporations in accepting the surrender of the original certificate, and issuing new certificates to the wife. From the instant an old certificate is surrendered with a transfer on it to the wife, the corporation assumes an obligation to her to issue her a new certificate, which obligation lays the basis for a bill in equity by her for specific performance. This obligation may even sustain an action by her at common law in the federal courts. Hendrick v. Lindsay, 93 U. S. 143, 23 L. Ed. 855; McKee v. Lamon, 159 U. S. 317, 322, 16 Sup. Ct. 11, 40 L. Ed. 165. It is true that the same principle would seem to apply to a savings bank which had received a deposit; and yet, under the circumstances, we would be at liberty, if necessary, to hold that there is a distinction.

Moreover, we are not bound to follow Spelman v. Aldrich, because, even if not overruled, it is plain that the principles therein announced have not been continuously and consistently applied by the Supreme Judicial Court of Massachusetts. We begin with Sweeney v. Boston Five Cent Savings Bank, 116 Mass. 384, 385, where, in an opinion arising out of a suit by the husband against a savings bank to recover a deposit which he had made in the name of his wife, having delivered her the savings bank book, the court said:

"The book is evidence of a contract of the defendant with her"-that is, the wife-"and it appears from the report that this contract was made with his sanction and concurrence."

It was held that the husband's suit could not be maintained. Brown v. Brown, 174 Mass. 197, 201, 54 N. E. 532, 75 Am. St. Rep. 292, related to a deposit in a savings bank, where the proceeding was in behalf of the administrator against the wife. It is true that the report of the case does not state whether the estate was insolvent, so that the creditors were the real parties in interest, or whether the parties in interest were the distributees. It appears, however, from the reference which the opinion, at page 204 of 174 Mass., page 533