husband alone, upon the general principle, "that that which the husband may discharge alone and of which he may make disposition to his own use, for the recovery of which he may sue without his wife." (Brett v. Cumberland, 3 Bulstrode's R. 164, recognized in McNeill v. Holloway, 1 Barnwall & Alderson's R. 224.)

§ 236. As has been observed, marriage is an unqualified gift to the husband of all the goods and personal chattels absolutely possessed by the wife at the time of the marriage, or which came to her possession in her own right during coverture. But marriage makes no such gift to the husband of the goods and chattels held by the wife in autre droit, "in rights of another," as executrix, administratrix or trustee, because such a gift would do injustice to the creditors and next of kin of the testator or intestate; besides, the wife in such a case takes no beneficial interest in the property, and therefore has none which the law can transfer to the husband. (1 Bright's Husband and Wife, 39.) But as the husband will be liable if his wife should misapply the funds which may be in her hands as such executrix or administratrix, for his own safety he is entitled to administer in such a case in his wife's right; and as an incident to this right he may dispose of the personal property and effects vested in his wife as executrix or administratrix, for the benefit of the estate of the testator or intestate. He may also release debts owing to the estate of the testator or intestate, to whom the wife is executrix or administratrix. (1 Bright's Husband and Wife, 40.)

After marriage the wife will not be permitted to administer without the husband's consent, nor will payments made to her as executrix or administratrix without his consent be valid. This rule is for the protection of the husband, for the reason that he is liable for the acts of his wife with respect to the trust. (Anonymous, 1 Salk. R. 282.) In a late case, however, administration was granted to the wife without her husband joining, she living separate from him, and all right to the estate of the deceased having been conveyed to her under a deed of separation, and no particular objection is discovered to the practice in the particular case. (In re Hardinge, 2 Curt. R. 640.) The common law rule upon this subject of administration is sometimes modified by statute, and in that case the liability of the husband and the powers of the wife depend upon the provisions of the statute.

§ 237. By the rule of the common law, if the husband survive the wife he is entitled to all her personal estate which continued in action or unrecovered at the time of her decease, and he may demand, recover and enjoy the same. This rule has its origin, not in the fact that "the husband is the next and most lawful friend" of his wife, but in the fact that jure mariti he is permitted to administer upon her estate. (McCosker v. Golden, 1 Brad. Sur. R. 64. Ransom v. Nichols, 22 N. Y. R. 110.) But, whatever the origin of the rule, the doctrine of the common law is clear that where the wife dies, leaving her husband surviving, the surplus of her personal estate belongs, after the payment of her debts, to her husband, and not to her next of kin. (2 Black. Com. 515. Donnington v. Mitchell, 1 Green's [N. J.] Ch. R. 243. Lush v. Alburtis, 1 Brad. R. 456. Shumway v. Cooper, 16 Barb. R. 556.) And, if he does not take out letters of administration, he is equally entitled to it. (Clough v. Bond, 6 Jur. 50.) Or, should he die before the same is recovered, it will go to his next of kin. Formerly, however, in this latter contingency, the practice was to grant letters of administration de bonis non administrandis of her estate, to the representatives of the wife, although the administrators were held to be trustees of what they received for the next of kin of the husband. (Humphrey v. Bullen, 1 Atk. R. 458. Elliott v. Collier, 3 ib. 526.) But this practice was found to be inconvenient, as it was the only case where the rule was not followed of uniting the administrative to the beneficial interest, and the practice now is to grant such letters to the representatives of the husband, even when he dies without taking out administration to the wife, unless the wife leaves nothing to which the husband can be entitled as her representative. (Fielder v. Hanger, 3 Hagg. Ecc. R. 770. In re Mary Pountney, 4 ib. 289.)

If the husband dies, leaving assets of his wife unadministered, they pass to his executors or administrators, as a part of his personal estate, and they need not take out letters of administration on her estate. This is the rule, at common law, and it is expressly incorporated into the statutes of most of the States. (Roosevelt v. Elliihorp, 10 Paige's R. 415. Lockwood v. Stockholm, 11 ib. 87.)

If administration de bonis non of the wife be granted to a third person, he is a trustee for the representatives of the husband in case of his death after the wife. (Squib v. Wyn, 1 P. Wms. R. 378. Cart v. Rees, Ib. 381. Whitaker v. Whitaker, 6 Johns. R. 112.

Hendin v. Colgin, 4 Munf. R. 231. Clark v. Clark, 6 Watts & Serg. R. 85.)

If the husband, after the decease of his wife, without taking out letters of administration, obtain possession of the wife's personal property, he may retain it against his wife's next of kin. (Hendin v. Colgin, supra.) And if the wife's next of kin administer, he will be a trustee for the husband or his representative, if the husband die before administering, as has been before intimated. (Stewart v. Stewart, 7 Johns. Ch. R. 229. Betts v. Kimpton, 2 Barn. & Adol. R. 273. Hunter v. Hallett, 1 Eden's Ch. R. 388.)

When the husband has permitted his wife, without any marriage contract, to retain possession and control of the personal property she had before marriage, he is nevertheless entitled to administration upon her estate, and to retain the balance to his own use. (Jones v. Brown, 37 N. H. R. 439.) This follows as a matter of course, from the right which he has at common law, and generally by statute, to take and hold the goods and chattels in the wife's possession during the joint lives of himself and wife, and after her death if he survives her, as his administrator or otherwise, to take and hold, reduce into his possession, and recover absolutely for his own use and benefit, subject to the payment of her debts, all of her chattels and personal estate, which he does not reduce into his possession in her life-time, or which may not become his absolutely, prior to his death, by being by her reduced into her possession; which is a vested right in the husband by the marriage in the lifetime of the wife. (Vide Vallance v. Bausch, 28 Barb. R. 633. Lee v. Wheeler, 4 Georgia R. 541. Westervelt v. Gregg, 12 N. Y. R. 206.)

A devise of real and personal property to a married woman for her sole and separate use, "not to be liable for her husband's debts, nor subject to curtesy or any life estate or marital rights," does not exclude the husband from administration under the intestate laws of Pennsylvania, and the same would probably be the rule at common law. (Farie's Appeal, 23 Penn. R. 29. S. C. 2 Am. Law Reg. 510.)

The representative of a second wife is not entitled to represent the first wife, without citing the husband's next of kin, or their renouncing. (In re Sowerly, 2 Curteis' R. 853.)

238. The husband, upon marriage, becomes possessed of the chattels real of which the wife is or may be possessed during the

marriage, although the law gives to him a qualified title only in these; that is an interest in his wife's right, with a power of alienation during coverture. Chattels real are such as are annexed to or savor of the realty, as terms for years of land, leases and mortgages, and the effect of marriage, at common law, is to vest in the husband all these interests of the wife during coverture. If the wife is seised of an estate of inheritance, her husband gains a title to the rents and profits during their joint lives. (Jones v. Patterson, 11 Barb. R. 572. Clapp v. Stoughton, 10 The husband has the power, by the rule of the sell, assign, mortgage, or otherwise dispose of these interests as he pleases, by an act in his life-time, without the consent or concurrence of his wife, except it be such an interest as the wife has by the provision or consent of her husband, by way of settlement. (2 Kent's Com. 134. Turner's case, 1 Vern. R. 7. Whitmarsh v. Robinson, 1 Coll. R. 571.)

Pick. R. 463.) common law, to

It is said that an assignment of the real chattels of the wife by the husband will bind her, though it be made without consideration; and if the wife has a judgment, and it is extended on an elegit, the husband may assign it without consideration; and if a judgment is given in trust for a feme-sole who marries, and, by consent of her trustees, is in possession of the land extended, the husband may assign over the extended interest. (Cateret v. Paschall, 3 P. Wms. R. 200.)

If a feme-sole has a decree to hold and enjoy lands until a debt due to her is paid, and she is in possession of the land under the decree, and marries, the husband may assign this interest without consideration, without regard to his wife. (Merriweather v. Brooker, 5 Litt. [Ky.] R. 256.) He may sell the usufructuary estate in his wife's land without her concurrence. (Bailey v. Duncan, 4 Mon. [Ky.] R. 260.) And as the same rule of property prevails in equity as at law in these cases, if the wife is entitled to a term for years held in trust for her benefit, the assignment or alienation of it by her husband will bind her surviving him. (Turner's case, supra. Tuder v. Samyne, 2 Vern. R. 270.) And it has been held that the assignment of the wife's equitable chattels real by the husband defeats her right by survivorship, though made without consideration. (Cateret v. Paschall, 3 P. Wms. R. 200.) However, the law now seems to be settled, that the assignment must be for a valuable consideration, otherwise the right of the

wife will not be disturbed. (Cox's note to Squib v. Wyn, 1 P. Wms. R. 380.)

If it be an equitable interest, and the husband should find it necessary to have recourse to a court of equity to assert his right to the term, as when it has been vested in trustees for the benefit of the wife, still he may dispose of it as he will, unless the trust has been created with his privity and consent. (Pitt v. Hunt, 1 Vern. R. 18.)

§ 239. Chattels real, whether they are legal or equitable interests, are not choses in action, because they do not stand in need of being reduced to possession, being in possession already, and lying in action; yet, if the husband do not transfer them in his life-time, which he may by grant or demise, he cannot dispose of them by will, and they will survive to the wife. (Mitford v. Mitford 9 Ves. R. 98. Clancy's Hus. and Wife, 9.) And if the husband grant part of a term which he has in right of his wife, this will not destroy her right of survivorship altogether, for if the husband die in such a case, the wife will have the remainder. (Sym's Case, Cro. Eliz. 33.)

If the husband does not alien the chattels real of his wife, and he survives her, the law gives them to him, not as representing his wife, but in his marital right; no administration, therefore, is necessary to be taken out by him to her. Thus, a man possessed of lands for a term of nine hundred and ninety-nine years, granted the term to a lady, and her heirs immediately after the death of the grautor, to hold the same to the lady grantee, and her heirs to and for her and their own proper use forever, and afterward married the grantee, and the marriage took effect. The husband survived the wife, and died without issue, intestate, and without having taken out administration to his wife, administration was taken out to him, and his administrator claimed the term. In the mean time administration had been taken out to the deceased wife, and her administrator also claimed the term. The court construed the grant as a present gift to the wife in case she survived her husband, to take effect in possession on that event, and held that the term upon the death of the grantor went to his administrator, and not to the administrator of the wife. In the course of the consideration of the case, the doctrine was clearly brought out, that if the husband do not alien the chattels real of his wife, and he survives her, the law gives them to him.

(Doe v. Polgrean,