As in this case, we have held that Mrs. Johnson was invested with a separate life interest in Rebecca and her increase, this property, although subject to absolute disposition by her when she was a widow, to the extent of her interest, was her separate property when she entered into another marriage, was not subject to the control of Phillips, her subsequent husband, nor, of course, liable to his debts. The principle is this: The husband finds his wife in the enjoyment of property that is separate property; and though, when a widow, she might do with it as she pleased, chancery will not permit the common, legal rights of the husband to be extended over such property. 2 Story Eq., sec. 1384, Newland vs. Paynter, 4 M. & C. 417, 418; Nedby vs. Nedby, ib. 376.

Doubtless, a settlement could be so worded as to exclude only the interest of a particular husband, and the intention should prevail when it appears to be directed only against an existing, or particularly contemplated husband. But in this case, as ordinarily in provisions made for daughters, that are, or may be wives, the intention is to provide for the wife, or the wife and children, though all the acts of survivorship are not mentioned. See Allen vs. Crawshay, 9 Hare 382. Upon this principle, when property was settled upon a married woman, to be held against the interference of any future husband, the restriction was held valid against the present husband. Steedman vs. Poole, 6 Hare 193, See, also Brown vs. Baneford, 1 Ph. 624.

Notwithstanding the principle of Tullett vs. Armstrong, and Newland vs. Paynter, would seem to us, as above expressed, to require that property settled to the separate use of a married woman, would not be subject to any charge made upon it by an atter taken husband, Vice Chancellor WIGRAM declined, though manifestly against his inclination, so to decide, thinking himself bound by Knight vs. Knight, Benson vs. Benson and Bradley vs. Hughes, heretofore mentioned. In that case, the settlement was of a fund to the wife for her separate use: her present husband, a party to the settlement, not being permitted to intermeddle with the fund, which after the death of the wife, was to go to the hus

band, and after the death of the survivor, to the children of the marriage. The husband died, the wite married again, when she, with her husband, charged the fund with annuities, and the ques tion was raised by the trustees upon the validity of the charge. The only question between counsel was, whether Tullett vs. Armstrong did not govern the case, and the Vice Chancellor held the contrary, and decided the case in accordance with the cases before mentioned. In Re Gaffee's settlement, 7 Hare 101. This case was taken before the Lord Chancellor, by appeal, and is reported in 1 Hall & Twells, 635, in 1 McNaughten & Gordon 54, and in 14 Jurist, 277. We have not been able to consult the case in any of the reports, neither of the books containing it being within our reach, but in a note to the 2d American edition of Hill on Trustees, page, the case is mentioned; and as we should have expected, was reversed, on the ground that the cases that limited a separate estate to an existing coverture were found. ed on a supposed rule of equity, that separate property could only be settled upon a married woman, or upon one in contemplation of a particular marriage. According to the extract from the report in the note, Lord COTTENHAM, said: "It being now "settled that a gift to the separate use, without power of anticipa"tion, will operate on all the covertures of a woman, unless "these provisions are destroyed while she is discovert, these

cases [referring to Knight vs. Knight, Benson vs. Benson, and Bradley vs. Hughes,] cannot be considered as applicable to this case, which must therefore depend on the construction to be put on the words used :" and then is laid down a rule of construction, that if the restriction or anticipation is part of the gift, the estate given, and the restriction against alienation or anticipation, must be commensurate. We are satisfied that such a decision as is represented in the note, will be found in the reports of the case; and we cannot think that any other would be made by the court of last resort, after Tullett vs. Armstrong, and the kindred cases.

In this case, there is no construction to be put upon any clause of anticipation, for Mrs. Phillips has not attempted to sell, or charge the property; and the clause against anticipation was in

troduced in settlements for the purpose of defending a married woman against her own act, which the influence of her husband might induce her to commit, and cannot be brought under consideration when the act complained of, is that of the husband, or persons claiming his right.

To decide that Mrs. Phillips' life estate was subject to the debts of her husband, would be to decide that she had no separate pro perty. We think that Mrs. Johnson acquired a separate interest in Rebecca and her increase, which was not confined by the terms of the gift to the existing coverture: that the property being sepa rate property when she married Phillips, it was not subject to his control, nor to his debts.

The law is, also, well settled that a restriction upon the alienation of separate property, during the life of a married woman to whom it is given, is not unlawful, for this restriction is the only means to make the separate estate effectual to promote its object, the benefit of the married woman. Holding the contrary of this, and upon authorities repeatedly overruled, was the mistake of Lindsay vs. Harrison, 3 Eng. 311, although that part of the opinion was not a part of the decision of the case.

The appellees have no more right to the property than the husband had. Beekman vs. Cowser, 22 Ark. 432; Bennett vs. Davis, 2 P. W. 319; Langton vs. Horton, 1 Hare 560. And as he had none, they have none; and their executions were properly enenjoined, and the injunction was improperly dissolved.

Let the decree be reversed, the preliminary injunction be restored, and the case remanded for further proceedings. The hus. band of Mrs. Phillips should have been made a defendant, and she is entitled to leave to amend her bill in this respect, and as she shall be advised.

INDEX.

ABATEMENT.

See Practice in Circuit Court, 11.

ACTIONS.

1. Where a written lease is made the foundation of the suit, it should appear that
the legal right of action upon it is in the plaintiff. Dicus vs. Bright, 110.
2. But the recital of a lease in an account filed for rent, does not necessarily
make the lease the foundation of the suit. Ib.

3. A party may pursue concurrent remedies-issue a scire facias to revive a judg-
ment against the administrator of a deceased judgment debtor, and present the
claim for allowance in the Probate Court-though he can have but one satisfac-
tion. Brearly vs. Peay, 172

4. Agreement that A, in his own name, should locate a land warrant belonging
to S, and convey to him one-half of the land; which was done: the land war-
rant being afterwards rejected, A entered the land with money, and applied to
R, the executor of S, who had died, for one-half of the cost, which was paid.
R then demanded a conveyance of one-half of the land to himself, which being
refused, he sued A for the money: Held, that the one-half of the land so loca-
ted and conveyed to S, belonged to his estate, that the payment by R, was as the
executor of S, to be settled in his administration, and that he could not recover
back the money from A. Atchley vs. Reeves, 233.

5. A misunderstanding having arisen between a lessor and lessee, where the lease was
by indenture, the matters of difference were submitted to arbitrators, who
made their award, stating, among other things, that the lessee should pay
the same amount of rent and in the same manner as provided for in the original
lease: Held, that an action on the covenant in the lease for the rent re-
served was well brought. Keeler vs. Harding, 697.

See, also, Partnership, 4, 5; Pleas and Pleading, 8; Damages, 1.

ADMINISTRATION.

1. Gross frauds might be practiced upon an estate, and it is against the policy of

ADMINISTRATION-CONTINUED.

the statute to allow a person, especially a stranger, to pay unauthenticated
claims against the estate, and make out an account for the money so paid, and
procure its allowance, against the objection of the administrator, by the testi-
mony of the original claimant; but where this was done by the widow of the
deceased-there being then no administration —and there is reason to believe
she acted in good faith, and that the claims were just, no injustice could have
been done the estate. Brearly vs. Norris, 166.

2. It is within the power of the Probate Court, on the application of a surety in
an administration bond, to require the administrator to give a new bond, when
it is made to appear that the sureties in his bond are insufficient. Renfro vs
White, 195.

3. Where property or money belonging to an intestate in his life time, comes to
the hands of his administrator, and he holds it as such at the time of making
his final settlement, and yet fails to charge himself with, or account for it; the
settlement is fraudulent, according to the principles settled in Ringgold vs. Stone,
et al. (20 Ark., 526.) Stone vs. Stillwell, Ex., 444.

4. As upon the death of a trustee he ceases to be such, and as to him the trust is
no longer continued, his indebtedness to the trust becomes a demand against his
estate, to be authenticated, allowed, classed and paid out of the assets of his
estate, as other demands. Hill, Ex., vs. State, 604.

See, also, Chancery, 2, 3.

AFFIDAVIT.

1. It is not necessary that the affidavit, prescribed by section 180, chap. 99, Gould's
Dig., should be signed by the affiant-the omission to sign it not affecting its va-
lidity. Gill et al, vs. Ward, 16.

2. The affidavit to a claim against the estate of a deceased person need not be
signed by the affiant. (Gill vs. Ward, 22 Ark.) Mahan vs. Owen, 347.

AMENDMENTS.

1. It is error to refuse to permit a defective replevin bond to be amended. Raw-
lings vs. Paty, 204.

See, also, Executions, 7.

APPEALS FROM JUSTICES.

1. If on appeal from the judgment of a justice of the peace, the appellee recovers
any amount, though less than the amount appealed from, the appellant must
pay the cost, unless he shall have tendered as much or more than the amount
recovered in the Circuit Court-the case of Hicks vs. Maness, 19 Ark., 707, over-
ruled as to this point. Latta vs. Dodd, 59.