CH. 19. New, on 116 &c. 3 Bro. C. C. 340, Pybus v. Smith. Fettiplace v. survive he may be tenant by the courtesy &c. ; but if the title becomes absolute, after the coverture is at an end, he has no interest in this absolute estate in fee. If the husband takes a mortgage of land to himself and wife, it is a joint interest, and if she survives she has it, by the jus accrescendi, where joint tenancy exists, and where not, she has it as a gift from him, as he sees fit to vest a legal title in her, by taking the deed or conveyance to both; his lending the money alters not the case. However her right must yield to the just claims of his creditors, where the debt is truly his. A mortgage, though in fee, being mere personal estate, and a chose in action, if the wife's, may be disposed of by her husband, and reduced to his possession, and made his, as other personal estate of hers is; but his alienation of it will not bind her, for this is not reducing it to his possession; nor is it so reduced till paid to him, his attorney, or agent; but if his creditors get possession, and alienate it to pay his debts, this is such a reducing it into possession. 13. Her rights and powers in equity; select cases added. Con. 23 &c., In equity a feme covert having separate property, can dispose of it; hence if she agrees, and shews her intention by her agreement, to affect her separate estate, a court of equity will apply it to satisfy such agreement, in the same manner as 1 Ves. J. 46, if she had been a feme sole; nor is it necessary to enable her to change her separate estate by her agreement, that a power of appointment should have been reserved to her; for if she takes an absolute, unqualified interest in her separate property, the power of appointing it as she pleases, is incidental to such property; therefore in this case, held, her will giving her separate property and its produce, whether derived from her husband or a third person, was a good and valid will. As to her separate property equity views her as a feme sole; but when in trust, this may be so worded as to restrain her power. 3 Bro. C. C. 8.-9 Ves. 220. 2 Ves. 190.4 Ves. 129, 437.-9 Ves. 14. Her will how valid. In the above case Fettiplace v. Gorges, 1 Ves. jr. 46, 49, the wife had a large separate per692-13 Ves. sonal property in trustees' hands, in common form, and af524.-2 Atk. ter her death a writing was found, signed by her, in these 69,379. words, "I leave all my personal estate, and every thing belonging to me, to my niece Diana Gorges." Held, a good will. On the husband's bill filed against the niece for the property to be decreed to him; because as argued for him, "there is nothing authorising his wife to make a will," and that it had never yet been decided, that it is incidental to separate property to dispose of it by will; the Chancellor observed that it had in Peacock v. Monk; also, that "if no disposition, the husband succeeds as next of kin, not in consequence of the marital rights." Bill dismissed. Cases cited; for the husband, Hearle v. Greenbank, 1 Ves. 299, (517;) for the niece, Wright v. Lord Cadogan, Peacock v. Monk; and her counsel said, in Hearle v. Greenbank, there is an express power as to the real, but as to the personal Lord Hardwicke says, "it is given to her separate use, in which case it is the rule of the court that a feme covert may dispose of it." See Norton v. Turvill, a. 10, s. 7; Bell v. Hyde, a. 10, s. 4, Hulme v. Tenant, 7. CHн. 19. Art. 2. 10 Ves. 191. § 15. But the court will not subject to her contract her sep- 9 Ves. 486.arate estate, unless it appears she meant to charge it. It is 2 Ves. jr. 138. -2 Vern. doubtful if equity will execute a contract made by baron & 386, Seeling feme to live separate and for separate maintenance, if there be v. Crawley. no trustee, but will if there be one, and covenants to indemni- -2 Atk. 511. fy the husband against her debts; and if no such covenants. See Pre. Ch. 196, Augier v. Augier. So at law his covenant with trustees to pay an annuity to his wife, in case of a present or future separation, is valid; 2 East 283, and Ch. 19, a. 6, s. 2. But will not enforce the contract to the injury of creditors or purchasers of the husband, unless he is to be indemnified by the trustee's covenant against his wife's debt. 2 Bro. C. C. 20, Stephens v. Olive; 4 Cruise 398, 399. 3 Burr. 1805; § 16. Her contracts void, not relating to her separate estate. New.on Con. Newland, supported generally by the authorities, says, "the 31, cites contracts of married women differ from those of infants; for and 2 P. W. the former, considered without reference to their separate 144. property, are absolutely void, and therefore incapable of confirmation;" yet we find many cases, several of which are cited in this work, in which ber contracts have, in fact, been deemed confirmed. Worral v. 17. A court of equity regards more an assignment of the 1P. W. 459, wife's property, by the husband's contract, than an assign- Marlor. ment by mere operation of law. House of 1 Vern. 7, case; & 18, v. Saunders; 18. How he may dispose of her term in trust. Lords held, that where a term is assigned in trust for a wife, Turner's by a first husband, her second husband could alien the term; Pitt v. Hunt. but not where assigned in trust for her by the husband's con- -1 Eq. Ca. sent; so if assigned in trust for her separate use; 2 Vern. Abr. Walter 270; and if to raise a sum of money for her, instead of the ib. 63, & term itself being in trust for her, makes no difference; here 1 Vern. 161. the assignment in trust for her, was before her marriage. Yet if money be left in a trustee's hands for the wife's benefit, and the husband dies, it goes to her, he not having disposed of it. Where he can assign, his assignee has the benefit on his bill. 19. Her chose in action. He can assign by contract, for Pre. Ch. 325. a valuable consideration, her particular chose in action, or ar- Brownticle, her equitable property, as he can her term, in trust for New. on Con. Povey v. 126, 129, 130, 131.-2 Atk. 417.-1 P. W 459. CH. 19. 2 Ch. R. 41, Lane v. Nor 2 Ves. 264.2 Ch. R 42, man. Howard v. 2 Bro. C. C. 1 Vern. 408. -2 P. W. 357,674. 2 Vern. 17. 1ves. 26. 675.-2 Bro. -2 P. W. C. C. 145. 1 Bro. C. C. Con. 133, 137, see ca ses. Co L. 351, 352.-2 BI. Reeve's her, as a legacy given her before marriage &c. A material difference between his specific, and general assignment; if of a particular thing, the assignee has it without making any provision for her; secus if of her interest generally. 20. Her voluntary bond before marriage is void, if during the treaty, and just before marriage she enter into it, as to a brother, husband not privy, it is fraudulent as against him; otherwise if given on a valuable consideration. There seems to be the same rule in equity if she so conveys away her property, through a provision for a child by a former husband; secus, if before the marriage treaty commences, and she uses no means to deceive him; and even though for her own separate use, and he has no notice of it; and valid, if for such child, if proved she meant no fraud, as against him, but a fair provision for such child, and especially if done before such treaty begins. 21. Her surviving right to her chose in action. It sur50.-New.on vives to her, if her husband does not reduce it into possession in his life time, and if he by contract assign her property in action for a valuable consideration, if his assignment be of a general nature, it will not bar her survivorship, though on a valuable consideration; secus, if of a particular chose in action, or of an equitable specific part of her property of that nature. ART. 3. The effect of his recovering a chose in action, that was hers &c. § 1. If he recover such chose in action during Com. 435 the marriage, it is absolutely his; but if he die, her choses in action survive to her, for he neglected to exercise his power over them when he might have done it; and if she dic, those rights, that at her death remain choses in action, shall not survive to him, because he never was in possession during the marriage; otherwise of a chattel real, because of that he is in possession by a kind of joint tenancy. But if she be dispossessed of a chattel real before marriage, or have only a right thereto, he shall not have it as survivor, unless he shall recover it during the marriage and a share on the statute of distribution is a chose in action, till recovered; and cannot be sued for by the heir till distributed to him. 1 Day's Ca. in E. 150, 155. Dom. Rel. 3. 352.-2 Com. 11 Mod. 246. 68, 97 6 D. & E. 616. § 2. And if a note be made to her, dum sola, and he, after -Chitty 57, their marriage, endorses it, the endorsement is a disposition of it. And a note or bill, made to a married woman, is made to the husband; and a debt due to the wife of the bankrupt, may be assigned by his commissioners. So he may absolutely dispose of her choses as he pleases, 1 Rol. Abr. 343 &c., 32 H. 8, 37. during the marriage. ART. 4. Her rents. 1. By the statute of Hen. VIII, if a man have, in the right of his wife, any estate in fee, in tail, or for life, or in any rents &c., and the same be unpaid in her Morton v. Hopkins. life time, the husband after her death, or his executor, or ad- CH. 19. ministrator, shall recover them. Art. 5. 2. If rent be due to a woman, and she marries, and her husband discharges rent due at a later day, this bars all ar- Dyer 271, rears; but this rule here must be understood as it is in general, that is, such an after discharge bars prior rent, where there i Stra. 229.is no evidence to rebut the presumption thence arising; but 72 Baron & not where there is direct evidence, the prior rent has never Feme, 9 H. been paid or discharged. The husband can lease or bind her freehold or inheritance, only for his life, nor can her term in his possession be taken in execution for his debt after his death. ART. 5. His rights as her administrator. § 1. By this statute of Charles II, he has administration on her estate, and shall recover and have to his own use, her personal estate the same as before the 22d Ch. II, was passed. 6,52. 29 Ch. 2.Ch. 3, s. 25. 2Bl. Com. 435. Drake. § 2. In this case it was made a question, if the baron who 2 Mod. 20, administered on his wife's estate, and recovered her debts, 22, Wilson v. was not bound to make distribution to her kindred, the statute 2 W. Bl. 801. of distribution being general. If A marry an executrix &c., -3 Wil. 277. he has all her power to administer. Notes 56. § 3. But since, it has been determined, that he not only has 2 Bl. Com. administration on her estate, to recover choses in action, but Christian's that he "shall retain them to his own use; and if he die before 1 P. W. 378; administration is granted to him, or he has recovered his wife's but Co. L. property, the right to it passes to his personal representative, Com. Ch. and not to his wife's next of kin ;" but he is held to pay her 115. debts out of her estate. 6 Johns. R. 112. 351.-1 Bl. 9, 1784. § 4. By this statute, administration shall be granted to the Mass. Act widow or next of kin, so by construction to the husband of of March kin, and if he, as administrator, recovers a debt due to her, he 2 Wood's is not held to make a distribution; this is law in such States Con. 158. as have adopted this or like acts. 5. In this case the court decided, that if the husband sur- Mass. S. J. vive, he shall have administration on her estate, to his use; 1796, Nurse Court June and if he die, his right to administer on her estate goes to his v. Ray.— representative; that there is no provision in the act to com- 2 Stra. 891. Reeve's 17, pel him to make distribution, and that he stands on the ground 18. of the old law. In this case the husband recovered a legacy that had been bequeathed to his wife, and her father claimed a distribution as her heir. It is clear the husband is not next of kin to his wife. 3 Ves. 247. 6. In this action the court decided, that the husband's right 1 Wils. 168, of administration to his wife, is transmissible to his representa- ' . Col170, Elliot tive, and shall not go to her's; but if the husband dies before lier & ux.; he reduces the wife's right into possession, and she survives doubted and then dies, her representative shall have administration. Man, 233. 1 Hen. & Lyon J. CH. 19. Salk. 116 1 Mod. 179, 3 Mod. 186, 189, Obrian v. Ram. 3 Salk. 63, part of the case above. -10 Mod. 163. Gilb. cases 318. The right here was an orphanage share that came to the wife during the marriage. Her power as executrix &c., see Ch. 29, Executors and Administrators. ART. 6. His right by judgment &c. § 1. If the wife, while sole, recover judgment, then she with her husband bring scire facias, and have execution awarded, and she dies; by the award of the execution, the debt is altered and survives to him. § 2. And by the same rule, where judgment was recovered against a feme sole, who afterwards married, and a scire facias was sued against both, and judgment that the plt. have execution against both; after this award, and before the execution was executed, the wife died, and after her death it was held proper to issue a new scire facias against the husband; which, said the court, proved the award of execution made a plain alteration. So was the case of Obrian v. Ram. 3. So if husband and wife recover judgment for her debts or damages; so if judgment be against them for her debt, or against her while sole, and on a scire facias, execution is awarded against them. On her death he alone is liable; and he and not his wife must be taken in execution for her debts contracted before marriage. But according to the authorities generally, though in no case can she, in a civil action, be imprisoned without him, except for a reasonable time to take him, yet she may be imprisoned with him, where judgment and execution are against both. If both recover judgment for her debt, the survivor has it, if uncollected. She, if she survives, has it not only as the 1 Mod. 179. surviving plt., but because the debt is hers, not collected by her husband; for the judgment is not a collection of it. -3 Mod. 189. 1 Sid. 537. Office of But if he survives, he has it without account, but to his own use, on the principle of jus accrescendi of joint tenancy; on it Fx'r.293,294. this judgment belongs to him absolutely; husband and wife are joint tenants of the judgment. Every joint_jndgment must be collected by the surviving plt. or plts. This is law among all; but the material question is, when the surviving plt. enforcing the judgment is to account for the amount of it; a surviving merchant, a partner, plt. alone enforces it, but accounts for the amount; the husband does not in those States, in which the jus accrescendi of joint tenancy exists; but quære if he must not as respects his deceased wife's creditors. But where there is no jus accrescendi in a State, the surviving husband not only collects this judgment to the use of his wife's creditors, but if none, then to the use of her next of kin, where there is no such statute as the 29th Ch. II; but in the States where there is, then to his own use, by reason of such statute, though there be no such jus accrescendi. |