1. If a ART. 17. When she is executrix or administratrix. feme covert be next of kin, she shall be administratrix by the English law; but whether executor or administrator, her husband, in fact, administers, and his assent to a legacy is sufficient. So to a legacy to her, she cannot assent. Goods she has as executrix, on her death do not go to her husband. 466. Cro. El. CH. 19. Art. 18. 1 Com. D. 343.-Off. Exr. 321,294. -1 Leon 216.-1 Sid. 188, 337. 1 Salk. 117. § 2. If a feme covert be executrix or administratrix. Administration by her husband binds her. So if he administer 306.-Off. without her assent, his release alone is good. So if he as- Exr. 297, 8. Cro. Car.519, sign the goods it will be a devastavit by her, and she, without Morrison v. him, cannot dispose of the deceased's goods; yet his goods Bourn.are not vested in the husband, and he must sue and be sued Reeve D. R. with her. When a feme sole is made administratrix or exec- 118.—4 D. & utrix, with another, and marries, see Executors and Adminis- E. 616. trators, Ch. 29, a. 1. 3. A had a term for 999 years, and before he married B, granted it to her and her heirs immediately after his death, to her and their use. The marriage took effect, and A, the husband, survived B, his wife, and died without issue, intestate, and without having taken out administration on her estate, and it was adjudged that this term, on A's death, went to his administrator, and not to hers. Held, his deed was a present gift to his wife, if she survived, to take effect on that event, and so vested in her husband. 26.-2 Vern. 1 H. Bl. 535, Doe v. Pol Com. D. 361, 2. grean. ton.-3 Wils. 4. A covenant or a promise by a stranger to leave the 12 Mod. 294, wife so much, if she survives, cannot be released by the hus- Cage v. Acband, though he may release any thing that by possibility may 277, Thrustaccrue to her during the coverture; and such release will be out v. Copgood, though the thing does not fall during the marriage, but pin-2 W, it is sufficient, that it may possibly fall during the marriage to her. During the marriage he can grant or convey a term for years, she has as executrix to a former husband; the whole. power to administer is in him, but it is a mere power. Bl. 801. ART. 18. In cases of abduction, his remedies. § 1. If one 3 Bl. Com. by fraud and persuasion or open violence, take away a man's 129, 140.-wife, he has a writ of ravishment or trespass vi et armis, at F. N. B. 89, (203.)--Cro. common law, in which he recovers not possession of his wife, but Jam. 501, damages; and the offender too may be indicted. So the husband 538.--Cro. may have an action on the case, against such as persuade and entice the wife to live separate from her husband without sufficient cause, and recover damages. [As to criminal conversation, and beating her, see Trespass.] And see also Ch. 64, a. 2. El. 770.-- Stra. 440, 579, 982.3 Bl. Com. Chr's. notes, 2. So if the wife be so beaten and ill treated, that the 1. husband loses her company and assistance, for any time, he may have a separate action on the case, in his own name, and recover damages called a per quod consortium amisit. Сн. 19. 3. If a son-in-law permit his wife's mother to reside in his house, and afford her the rights of hospitality, though forbidden by the husband of the mother, the son-in-law is not liable for illegally harbouring her; he is not obliged to turn her 317, Turner out of his house; it is sufficient that he does not use means to persuade or entice her to leave her husband, or to remain separate from him. 3 Mass. R. b. Estes. 1 Mass. R. case. ART. 19. Her title to his estate further; and see Dower, 347, Martin's Distribution, Jointure, &c. 1. In the American revolution, many acts were passed for the confiscation of the estates of absentees, persons, members of the British colonies, who left them and joined the royal party, in that revolution. But it was in this case decided, that if a feme covert so left and joined, her estate was not liable to confiscation by those laws, nor did the wives of such absentees lose their dower in their husbands' estates. 10 Mod. 33, 2. If a woman be empowered by her first husband's will Thomlinson to sell and convey his lands, and she marries a second husband, v. Dighton.- she does not thereby lose her power over her first husband's estate, but she may sell and convey his lands according to his will, and even to her second husband. She conveyed by lease, and release. Her act is under a special power. 1 Roll. 329. 2 Bl. Com. § 3. Her paraphernalia. The husband may absolutely dispose of his wife's jewels or paraphernalia, in his life time, Chr's. notes yet she has some interest in them, and though after his death 56; but 1 P. they are liable for his debts by the English law, if his personal estate be exhausted, yet the wife or widow may recover 79.-Ambl.6. from the heir to the amount of what she is obliged to pay, in consequence of specialty creditors, out of her paraphernalia. W. 729. 2 Atk. 642, 4. If the husband devise away her jewels, or parapher2 Esp. 336.Cro. Car. nalia, she cannot hold them, and his executor may recover 343.-2 Vern. them from her; but if her husband dies intestate, or by will does not dispose of them, then she shall have her jewels and paraphernalia. 246. Mass. Act of 1784. If not allow her all 5. By this act, the widow has a third of the personal esMarch 9, tate of her husband, deceased intestate, after debts paid; and extravagant, if no issue, one half; and if the personal estate be insufficient Judge may to pay debts, and funeral charges, yet she shall have "her apthe personal parel, and such other of the personal estate as the Judge shall estate, determine necessary, according to her quality and degree." 15 Mass. R. This provision being in addition to her dower, it is a question Com.435,436, if it do not supersede the doctrine of paraphernalia, which 2 Atk. 105. also was in addition to dower, and which signified her apparel aud her ornaments. See Act Dec. 13, 1816, Ch. 95. 181.-2 BI. 2 Ves. 7. By the English law she can hold her apparel against creditors, but not her ornaments. By the laws of Massachusetts, the Judge of Probate may allow her to hold both, against her husband's will, or executors, &c. But if the judge make her no allowance, she has her apparel. This Cн. 19. Art. 19. Orrok. § 6. In this action the court decided, that the wife has a 1 Mass. R. separate interest in her alimony, and may have execution even 341, Orrok v. against her husband, on the Act of March 16, 1786. was in a case of divorce, a menså et thoro, from the nature and 37. necessity of the case; for otherwise she would be without remedy for her alimony, or means of support. In Connecticut paraphernalia, includes her beds, as well as clothing, and ornaments and trinkets, as bracelets, jewels, watches, rich laces, &c. Her clothing can hardly be considered her husband's estate, if suitable to her condition, it is not liable to his debts on the principles of the common law; and her proper apparel ought not to be inventoried as her husband's estate, nor can he devise it from her by his will; and Judge Reeve is of opinion he cannot her ornaments or trinkets, though he may take them and dispose of them during the coverture; on his death they vest in her, liable to be taken by his executor for the payment of the husband's debts, where there are not sufficient assets besides to discharge them; her right to them yields only to the rights of creditors. Her paraphernalia can never be taken to pay legacies; they become hers absolutely, after debts paid, and make no part of the personal estate of the intestate husband; and if her paraphernalia are taken to pay debts, she is viewed often as a creditor to the estate of her husband to the amount, in his life time, and after his death; as where he pledges her jewels &c., to raise money, and dies, and leaves more than personal estate enough to pay his debts. So if real estate is devised to pay debts, and the executor takes her ornaments and applies them to pay debts, she shall have a right to the amount against the estate so devised. So if they be so taken, where real estate is given in trust to pay debts. These English principles apply here, where not varied by our statutes; and as these have made the real estate of the deceased liable to pay his debts, a question arises if her paraphernalia are liable for them, while his personal and real estate is sufficient to pay them; as this real estate, so liable by statute, seems to be in the same situation as his real estate made liable by his will, for the same purpose, and as above, real estate so liable by devise, while sufficient to pay his debts, exempts her pharaphernalia from being liable for the payment of them. 3 Atk. 370, 395; 3 P. W. 30; 1 P. W. 729, 730; 2 P. W. 544. The law appoints him her trustee where necessary; as if land be devised to her for her separate use, and no trustee ap CH. 19. to 204, Barnes' les pointed, the husband is trustee; so a bond so given. Toller's L. of Ex. 226, 228. ART. 20. Her appointment &c. § 1. In Pennsylvania there is 2 Dallas 199 no court of chancery, and the question arose, what was a good appointment by a married woman. As where the intended sue, v. Irving. husband, A. D. 1774, by deed executed with the intended wife, and a third person, covenanted, that her estate should be to their joint use during their marriage, and after that she "should have full power to dispose of it by deed or will, during coverture." They had no issue. January 29, 1790, during coverture, she made a will in the usual form, made the defts. her executors, and gave them power to sell her real estate. They entered and sold it, and the sale was adjudged to be valid, and that this was a good appointment in the nature of a will, that her husband was barred, and so his heir, the plt., that the deed was like a covenant to stand seised to her use, and direction. The court in this case appeared to act on chancery principles, as there was no chancery in that state, and "so considered what ought to be done as actually done," according to the well known rule in chancery. 2 T. R. 684, Doe v. Sta Abr. 608, 2. In this case the intended husband and wife before their ples. See on marriage entered into an agreement in writing, but not under this point, a. seal, so no deed, and stipulated that a settlement should be 22, and Roll. made of her estate, reserving to her a power to dispose of it; 912-1 Mod. before the marriage she disposed of it to him by will, and he 157.-Ambl. survived her, and devised the estate, and the devisee's title was held to be bad; for her marriage was a revocation of her will, as the marriage of every feme sole is, as a general rule, for by her marriage she totally gives up her control over her will, and the writing not being a deed did not continue in her a devising power during the marriage by the husband's consent; as might have been done by his deed. 565.-2 Dall. 199. 2 Bl. Com.Chris. Notes 41, and 6 Bro. P. C. 156. 2 Ves. 501.2 Vern. 6. 3. The appointment of a married woman is effectual against the heir at law, though it depends only on an agreement of her husband before marriage, without any conveyance of the estate to trustees. This point has been decided by the House of Lords, though it is not recollected that there has been any adjudication upon this point, in this state. Several cases are recollected in which such agreements have been made, and the question as to their validity may soon arise. 4. As a jointure comes in lieu of dower, it is not viewed in equity as a purchase by the husband of his wife's choses, but a competent settlement made before marriage is, and where they are purchased, her right of survivorship is forever gone. What is a purchase or not depends on the facts in the case. $5. It is held by some, that she may devise her estate without the consent of her husband, where no legal right of his is to be affected by the common law, as far as others can devise thereby. By statute of H. 8, she cannot devise her lands. ART. 21. Several cases. It is now settled his donatio causa mortis to her is valid. CH, 19 Art. 21. ~ Reeve's D. many cases. 4 Mass. R. 137, Hill & § 1. Hill and his wife brought a qui tam action against us. v. Davis. Davis and another, executors; and it was decided, that a man and his wife cannot recover in this popular action, sued in their joint names, for the wife can have no interest in the judgment jointly with her husband, nor is his interest therein in her right. This was an action against executors, for not causing a will to be proved. 2. In this case the plt., while a feme sole, brought this 4 Mass. R. action, and pending it intermarried. The deft. pleaded this 659, Haines matter in abatement. Judgment for him, that he recover his v. Corlis jr. costs against her; and execution may go against her; the deft. may sue the judgment against her and her husband. kins v. Per 3. In this case the evidence was, that for a long time the 6 Mass. R. respondent had treated his wife in a very abusive manner, 60, 69, Perand about six years before the libel filed, had unjustifiably kins. assaulted and beat her; after which the parties continued to live together, the respondent continuing to use the same abusive and threatening language. The court did not, for this reason of their continuing to live together, refuse a divorce a mensâ et thoro on the libel of the wife. Her powers in equity, 2 Ves. jr. 488; Anstr. 93. 4. In this case the court said, that the husband and wife 1 Stra. 229, Alebury v. may join, or not, in an action, at their election, as where a Walby. bond is to both of them. Same on a covenant to them as to his estate, 2 Mod. 217. 5. The deft. promised the wife to pay her £10, if she Cro. Jam. 77, cured such a wound, which she did cure, and she and her Brashford v. husband sued for the £10, and the objection was, he ought & ux., in erto have sued alone, as it was a personal duty, that accrued ror, and 205. during the coverture; but the court held, the action was well brought, being grounded on an express promise to her, and upon a matter rising upon her skill," and such an action shall survive to the feme." This case has been questioned as to the right's surviving. 6. In this case the wife advanced monies to the deft. for Cro. El. 61, certain considerations, which failed, and the husband and wife Prat & ux. v. Taylor.-Am. both brought assumpsit for the money, and it was objected the Prec. 24.-Ch. baron ought alone to have brought the action; but the court 9, a. 19. held, it was well brought, for his agreement made the promise |