Hurd r. Cass. The view which I have taken of this statute is greatly strengthened by the principles of the common law. Lord Hardwick decided, in the case of Roberts v. Dixwell, (1 Atk. 607,) that the husband might have his curtesy in an estate devised to the wife for her separate use. And although there was at one time some conflict in the adjudications upon the subject, the law is well settled at the present day that the husband is to be considered tenant by the curtesy if the wife has an equitable estate of inheritance, notwithstanding the rents and profits are to be paid to her separate use during coverture. The receipt of the rents and profits is a sufficient seisin in the wife. (Pill v. Jackson, 3 Bro. 51. Morgan v. Morgan, 3 Madd. 248. 4 Kent's Com. 31, 3d ed.) And it is now settled in equity that the husband may be a tenant by the curtesy of an equity of redemption and of lands of which the wife had only a seisin in equity, as a cestui que trust. (4 Kent's Com. 30.) It is contended, however, that this construction of the statute under consideration is not admissible, as the latter clause of the section provides that the property so held by a feme covert "shall not be subject to the disposal of her husband nor be liable for his debts." This clause of the statute does not conflict with the views above expressed, and it should be borne in mind that this statute was passed to protect the property of married women to their separate use during coverture, investing the wife also with power to convey the same by deed or devise. At common law, also, the husband, upon the marriage, became seised of a freehold estate, jure uxoris, in the wife's lands, and took the rents and profits thereof during their joint lives. (2 Kent's Com. 130, 3d ed.) This was such an interest as the wife might transfer, or as was liable to be sold for his debts; and it was probably this interest of the husband in the wife's lands to which this clause of the statute has reference, and not to an interest which alone vests and becomes consummated on the death of the wife, where there is a child born alive of the marriage. All that this statute was ever intended to accomplish was to protect the property in the wife during coverture, and to empower her to convey the same by deed or devise. The statute was never intended to change the direction of the VOL. IX. 47 Hurd v. Cass. real estate upon the wife's death, unless she herself had changed it by a valid devise. The laws of descent remain unchanged by its enactments; and the real estate, by the law of descent, is cast the same as if this statute had never been passed. The statute cuts off most emphatically all that freehold estate which the husband acquired jure uxoris during coverture, and which, as we have said, was a freehold estate during their joint lives; and the husband has now, during coverture, no interest in the wife's lands which he can use or transfer, or which his creditors can in any manner reach. The estate is vested in the wife during coverture, and upon her death descends to her heirs charged with the incumbrance of the husband's rights as tenant by the curtesy if there has been a child born alive of the marriage; if none, then the estate becomes perfect and absolute in her heirs. I am of opinion, therefore, for the reasons above stated, that the plaintiff in the case under consideration is to be regarded as tenant by the curtesy of the lands described in the complaint; because the statute referred to does not extend to the case. Consequently it is not necessary to consider the questions raised as to the validity of this statute. There is no force in the objection raised by the defendant's counsel, that the defendant's tenancy was not terminated at the time this suit was commenced. The defendant was a tenant at will. (2 Cowen, 169. 11 Wend. 616.) And this tenancy was terminated by a month's notice to quit, under the statute. (1 R. S. 745, §§ 7, 8, 9.) There must be a judgment for the plaintiff that he recover the possession of the premises described in the complaint, with costs. CLINTON GENERAL TERM, July, 1850. Paige, Willard. FORT and wife vs. GOODING and others, Ex'rs of Gooding. A promise,by a father, to his daughter, to pay her a certain sum per week, for The section of the code authorizing a defendant to be examined as a witness Accordingly held that in an action against several executors, one of the defendants could not be a witness for his co-defendants. In such a case all the defendants only represent the testator. No one of them is liable to the plaintiffs unless all are; and no evidence can be given in the cause which can operate for or against one of them and not the others. Per CADY, J. Where a will contains an express direction for the payment of all the testator's debts, this rebuts the presumption that a legacy, given to a creditor by the same will, was intended to be in payment of the debt. Nor does that presumption arise where the legacy bequeathed is not equally as beneficial to the legatee, as the debt, either as to the time of payment, or in the amount. THIS was an action brought by the plaintiffs to recover for services performed for the testator of the defendants by the plaintiff's wife, before coverture. The plaintiff's account, duly verified, was presented to the defendants on the 14th of November, 1848, and was by them rejected as "unjust and not due." 9 371 72h 632 9b 371 84 AD❜41€ Fort v. Gooding. The suit was commenced on the 13th of December, 1848. The defendants did not advertise for the creditors of the testator to exhibit their claims, as they might have done, under the statute. (2 R. S. 88, § 34.) The plaintiff's wife was a daughter of the testator, and her claim, as set up in the complaint, was for services from the 1st of July, 1832, to the year 1840, and the amount claimed was $750, and interest from the 1st of April, 1846. It appeared that the testator died in May, 1846. The cause was referred by consent to a sole referee, who, in July, 1849, reported in favor of the plaintiff for $592,28; and the defendants moved to set the report aside. C. L. Allen, for the motion. E. D. Culver, contra. By the Court, CADY, J. The plaintiffs in this action seek to recover from the defendants as executors and executrix of David Gooding deceased, a compensation for the services of the plaintiff Caroline, rendered by her when sole, for her father the testator, and at his request, commencing in the year 1832 and continued into the year 1840. The defendants David C. Gooding and Peter W. Gooding put in a separate answer; the defendants Mathew Gooding and Cyrus Gooding also put in a separate answer; and the defendant Mehetabel Gooding, the executrix, put in a separate answer. Although the defendants thus severed in their answers, each has the benefit of the other's answer, for they all represent the testator, and the plaintiffs must succeed against all the defendants or none of them. By taking the complaint and all the answers and replies into consideration, the following questions of fact were raised, and must be answered. 1. Did the plaintiff Caroline, while sole, from about the 1st of July, 1832, up to and including a part of the year 1840, perform any services for the testator and at his request, and were such services worth two dollars per week, or any other sum over and above what she received therefor ? Fort v. Gooding. 2. Did the testator at any time within six years next before his death promise as is alledged in the complaint? 3. Did the cause of action accrue at any time within six years next before the commencement of the action, or within seven years and six months next before the commencement of the action? 4. Did the plaintiffs, or either of them, ever present to the defendants or to either of them any bill for the said services, or make any claim therefor? 5. Was the plaintiff Caroline, while she lived with the testator, and performed the services for which a compensation is claimed, provided for or supported by him, otherwise than as hired girls usually are-and was such support a compensation for her services? 6. Did David Gooding, in his lifetime, and in March, 1845 or 1846, or at any other time, agree to pay the plaintiff Caroline for her labor, and has such payment ever been demanded? 7. Did the plaintiff Caroline perform the services rendered by her, voluntarily, without any contract for payment, and with no expectation of receiving for such services and labor any other compensation than what a child usually receives from its parent, to wit, clothing, education and maintenance? per No question of law was presented by the pleadings, and the finding of the referee as to the questions of fact is as conclusive as would be a verdict. To warrant a court in setting aside a verdict, it must be manifestly against the weight of evidence. In this cause the fact that the plaintiff Caroline worked for the testator for about eight years after she was of age, was not disputed on the hearing. It was proved that the testator had repeatedly declared that her services were worth two dollars week, and that he would pay her; and these promises to pay were repeated from time to time by the testator, until a very short time before his death, in 1846. The plaintiff's case was in the first instance most satisfactorily made out, and the inquiry is, was the evidence on the part of the defendants such as will authorize this court to say that the referee erred in not disregarding the case made on the part of the plaintiffs and reporting in favor of the defendants. |