[3 d] of the term, the law will preserve it for the wife. Plowd. 418, Bracebridge v. Cook. So if the husband grants a rent charge out of the term, the wife surviving may avoid the charge and all other incumbrances, and be remitted to the term, which the coverture does not divest out of her. Plowd. 418. ub. sup. 2d. Of the wife's estate in such terms in possession en auter droit, as executrix or administratrix. The marriage is not, in law, a gift to the husband of chattels real, or terms for years of the wife, in her possession en auter droit, and if he survives her, they will go to the administrator de bonis non of the testator or intestate. Co. Lit. 351. a. In Com. Dig. Baron & Feme, E. 2, it is said that if the wife had chattels real only en auter droit, as executrix or administratrix, the husband cannot dispose of them, and Co. Lit. ub. sup. is cited as authority. But Coke, in the place cited, says only that the law maketh no gift of them to the husband. This is true, and yet he may have power, during the coverture, to dispose of them. That he has such power seems to be established by the following adjudged cases. Cro. Eliz. 279, Loftus' case. Here a woman, administratrix of her former husband who was possessed of a term for 18 years, and of another term, in reversion, in the same land for 40 years, married J. S. who let it to J. D. for 20 years. This was held to be a valid disposition of the first term of 18 years in possession, and that his executor should have the rent. In Thrustout v. Coppin, 3 Wilson, 277, the sole question was whether a husband, possessed of a term for years in right of his wife as executrix of her former husband, had power to grant it? and the whole court were of opinion that he had. The case of Arnold v. Bidgood, Cro. Ja. 318, is also, in principle, precisely in point, and is so cited by Lord Ch. Justice De Grey, in Thrustout v. Coppin. The same doctrine seems also to be recognized in 1 Salk. 306, Wankford y. Wankford, and in Dyer, 183. a. and n. 57. In the cases above cited, the wife was possessed of the term as administratrix or executrix of her former husband, and the editor of Comyn, in the next sentence to that above cited, says that in such case the husband may dispose of it. But it is believed that this circumstance can make no difference in the law; that the same principle which gives the husband the power in the one case will give it to him in other cases; and that the mistake in Comyn originated in a misapprehension of Coke's meaning. In 1 Salk. 306, the doctrine is laid down generally, that in case of a feme covert executrix, the husband may administer and bind the wife, though she refuses; and a power to administer seems to include, necessarily, the incidental power to dispose of the testator's chattels. In Dyer 183. a. Anon. the case reported is of a woman who was possessed of a term as executrix of her former husband and married B., who submitted the title and interest to arbitration, and the award was against him. The judgment is not reported, but a note to the case says that the arbitration shall bind the wife; for if the husband had granted over the term, the grant would bind the wife, and by consequence the submission in this case, being for the title and interest in the term, is as much in effect, as if the husband had granted over the term, and it had issued from him, in which case the wife had been barred without doubt.' It is, therefore, with deference to the high authority of Comyn, submitted, that the husband, though the property of the term is not vested in him, has, as one of his marital rights, the power of disposing of it. 3d. Of the wife's legal estate in such terms in action. The intermarriage is a qualified gift to the husband of the wife's chattels real in action, or of which she was dispossessed at the time of the marriage, If he reduces them into possession during the coverture, he will have the same interest in them and power over them as if they had been in her actual possession, at the time of the marriage: But if he dies without reducing them into possession, the wife, and not the husband's representatives, will be entitled to them. Co. Lit. 351. a. and Butler's note, 304. 2. 4th. Of such estates in contingency or possibility. As to the wife's contingent or possible interests in terms for years, the general rule is that the husband has the power, during the coverture, to dispose of them for his own benefit: but if he makes no disposition of them they go to the wife. Co. Lit. 351. a. 46. b. and Butler's note, 304. 2. But if her interest depends on a contingency that cannot happen during the husband's life, his disposition of it will not bar the wife. As if there be a lease to husband and wife for their lives and afterwards to the executor of the survivor, the husband cannot grant this executory interest; because during the coverture, the wife has only a possibility and no vested interest. 1 Salk. 326, Gray v. Acton. Co. Lit. and Butler's note ub. sup. But if the husband, after the marriage, purchase a term to himself and wife and the survivor of them and the executors of the survivor, this is a single term, a vested interest, and the husband may alien it. 5th. Of the wife's equitable estates or trusts of terms for years, when limited to her generally. The husband has the same power to dispose of the trusts of terms for years for the use of the wife generally, which he has to dispose of such terms when granted to her directly; and he is entitled, during the coverture, to receive the rents and profits of them to his own use. Com. Dig. Baron & Feme. E. 2. Chancery 2. M. 9. Bac. Abr. Baron & Feme Č. 2. and D.. Thus if a term is granted to a woman who afterwards marries; or if a woman with the consent of the husband, before marriage, settles a term in trust for herself and afterwards marries, the trust will be in the power of the husband and he may dispose of it. So if the husband himself settles a term for years in trust for his wife, he may afterwards dispose of it and bar her. And if the wife, with the consent of the husband, before marriage settles a term to pay the debts of the husband and afterwards in trust for herself, the residue will be in the power of the husband. And if the wife be entitled to a trust term under her father's marriage settlement, and her father gives her in marriage, the husband may dispose of that trust term and prevent anything surviving to her. Com. Dig. Chancery 2. M. 9. But if a term is granted, or settled by the husband, for the jointure of the wife, the husband cannot dispose of it; and if it is settled, after marriage upon the wife and afterwards upon their children, though he may dispose of the wife's trust; he cannot dispose of the trusts of the children. Com. Dig. ub. sup. If a woman, seized in fee, creates a term for a special purpose, the term, after that purpose is accomplished, will attend the inheritance; as if it is in trust for the husband for life, afterwards to the issue of the marriage, and in default thereof to herself for the residue of the term; the husband dies without issue, and the wife takes a second husband, he shall not have the term. 2 Wils. 329, Goodright v. Sales. In Butler's notes on Co. Lit. 351. a. (note 304. 2.) it is said that if baron be possessed of 'the trust of a term in right of his wife, he may dispose of it, except in the case of a trust term where the trust is created by herself previous to the marriage." Why this exception? No reason is perceived why the trust of a term created by the wife herself, before marriage, should differ in its incidents, from a trust created by another; and in several of the cases above cited, in which it was held that the trusts were in the power of the husband, they were created by the wife [3 e] before marriage. Perhaps the learned annotator may have founded his exception on Coke's expression (Co. Lit. 351. a.) where he says, 'If a woman grant a term to her own use, taketh a husband and dieth, the husband surviving shall not have this trust, but the administrator of the wife.' This is unquestionably true; but there is a very obvious distinction between the power of disposing of the trust during the coverture, and the interest and property in it. The husband has the power and the usufruct during the coverture, as one of his marital rights, but the interest and property in it, if not disposed of, survive to the wife. The doctrine of Coke, therefore, does not support the doctrine of his annotator. Neither does the case cited by Coke furnish any ground for the exception in question. In that case, (Witham v. Waterhouse, Cro. Eliz. 466.) a woman who had the trust of a term married the plaintiff and died. The defendant took administration of the wife's goods and the plaintiff sued him in chancery to have the term. It was decreed by all the justices of England, that neither the term nor the use appertained to the plaintiff. The term was not created by the wife, nor did the husband dispose of it during the coverture. The case, therefore, has no bearing on the question now under consideration; and it is believed, notwithstanding some loose dicta found in the old books to the contrary, that the trust of a term created by the wife herself before marriage, follows the general rule, and may be disposed of by the husband during the coverture. See Newland on Contracts, 139 et seq. It has been before stated that the husband is entitled, during the coverture, to the rents and profits derived from the trust to his own use. By the case of the Lady Cromwell, cited in the margin of the case in the text to which this note is appended, it also appears that if the wife herself receives the money which comes of the trust and dies, the husband has the property;-that he may retain the money in his marital right, and is not accountable for it as administrator of the wife. In Reeve's Treatise on Domestic Relations, p. 25, this case is cited and the decision is there said to be different from the doctrine held in the case of Witham v. Waterhouse, Cro. Eliz. 446. But it is believed that the two cases are perfectly reconcileable, and both good law. By the original report of the former case (March. 44. Sir John St John's case,) the question appears to have been whether the husband was entitled to the proceeds and avails of the trust received during the coverture, and it was held that he was. In the latter case the question was whether he was entitled to the term or the use thereof after the death of the wife, and it was held that he was not. The questions therefore were entirely distinct and the adjudications consistent. Reeve however states that in the case of the Lady Cromwell, she received the rents, let out a part of the avails, and took lands and other securities; and that it was adjudged that the husband held such terms and their avails in his own right as husband and not as administrator. These facts do not appear in the report of the case in March, and no report of the case is found as cited by Reeve. If his statement of the case be correct, and by the phrase, such terms, is to be understood terms in the lands which she had taken as security for the money received from the trusts and let out, then this case, as stated by Reeve, does not impugn the doctrine of the case in Croke: But if the phrase relates to the trusts of the term settled before marriage, then this case is not only inconsistent with that of Witham v. Waterhouse, but is also opposed to the doctrine of Coke, and to the general current of authorities. 6th. Of trusts of terms for the wife's separate use. If a term, or other personal estate is given in trust for the wife's separate use, the husband has no beneficial interest in it or power over it. The wife, as to such estate, is considered as a feme sole, and may dispose of it, and of the income and profits of it. And if land is settled after marriage for the separate maintenance of the wife, who, out of the profits, saves money, puts it out at interest in the name of a trustee, disposes of it by will and dies; her husband shall not have it. But if a term is, before marriage, settled with the assent of the husband, in trustees for the sole disposition of the wife, without her husband; and she permits her husband to receive the rents during his life, his executor shall not account to her for the profits. Com. Dig. Chancery. 2. M. 9. [3 g] PINCOMBE Vs. RUDGE. Upon eviction of a freehold, no action of covenant lies upon the warranty; but if the eviction be by lease for years, not defeating the freehold but only interrupting the possession for a certain term, the party may have covenant. [vide post, p. 28.] Covenant. Hill. 5. Jac. cheq. Cham. warranty real. Rol. Rep. 25. 291. Yel. 139. Jenk. Cent. Noy. 131. 1 Roll. 353. Abr. 28. Ro. 1. 519. 'AMY PINCOMBE and others Plaintiffs brought an action Devon. of covenant against John Rudge, and declared, that Rudge, the defendant, by his indenture dated 30 Octobris, Rot. 941. Ban. 32 Eliz. did demise unto them all his lands in South Regis. & ExMolton, in the tenure of J. S. by these words, Dedit, Mich. 11. Jac. concessit, demisit et confirmavit unto the said plaintiffs, Habend. et Tenend. for their lives, rendering thirty pounds a year rent, with this express clause of warranty Action of Covfollowing, And the said John Rudge, and his heirs, all enant upon the said premises unto the said Amy, &c. against all persons claiming by, from, or under the said John, his ancestors or heirs, shall and will warrant, acquit, and defend, during the term aforesaid. This was a grant of the reversion upon an estate for life, made to one John Pincombe and others, in the 15th of the Queen, by the same Covent. 25. John Rudge, who did attorn to the grant to Amy and others. And the same John Rudge, in the 30th year of the Queen, had demised the premises unto one William Hunt for term of years, to begin after the death of the said John Pincombe and others. After all this, John Pincombe the last tenant for life died: Amy Pincombe, and the other grantees of the reversion entered, upon whom William Hunt the Lessee entered, whereupon they brought their action of covenant against John Rudge, and laid their damage to two hundred pounds; where Co. L. 378. b. 389. B. Condition, 141. Br. [4] [4 a] Error Ques- Co. L. 389. a. Judgment in on error. 2 Cr. 680. upon the defendant pleaded in bar, that the plaintiff |