SECTION I. Of the rights of the husband and his representatives, with respect to the personal property of his intestate wife. Husband's rights to his wife; It has been shown, in a former part of this treatise, that the husband is entitled to the grant of administration of his wife's effects; and consequently, before the Statute of as administrator Distributions, he was entitled, as all administrators were, to the exclusive enjoyment of the residue: Doubts, however, arose, whether the husband's right was not superseded by the force of that statute; and whether he was not thereby bound to distribute her personal estate among her next of kin: To obviate which, it is provided by the 29 Car. II. c. 3, s. 25 (the Statute of Frauds), that neither the Statute of Distributions or anything therein contained "shall be construed to extend to the estates of feme coverts that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover *and enjoy the same, as they might have done before the making of the said Act" (p). band's represen tatives, if he dies taking without out administration to her; In case the wife dies intestate, and afterward the husband dies, without having taken out administration to her, the rights of the husEcclesiastical Court, until a late period, considered itself bound by the statute 21 Hen. VIII. c. 5, to grant administration to the next of kin of the wife, and not to the representative of the husband (q). But such administrator was regarded, in equity, with respect of the residue, as a trustee for the representatives of the husband (r): For the husband surviving the wife, her whole estate vested in him at the time of her death, and no person could possibly be entitled to the rights of his wife but himself; so that her whole property belonged to him (s). And the practice of the Prerogative Court of Canterbury, on this head, was altered in Sir John Nicholl's time; and the rule established was, that the administration shall be granted to the representatives of the husband, + See American note at end of this Section. (p) See ante, pp. *754-*759, as to the extent of the husband's rights as his wife's administrator. See also ante, pp. *612, *613. (q) See ante, p. *349. (7) Cart v. Rees, 1 P. Wms. 381, (cited in Squib v. Wyn). Humphrey v. Bullen, 1 Atk. 458. S. C. 11 Vin. Abr. 88. Elliott v. Collier, 3 Atk. 526. S. C. 1 Ves. Sen. 15. 1 Wils. 168. (8) Elliott v. Collier, 3 Atk. 527. [*1358] unless it can be shown that the next of kin of the wife are entitled to the beneficial interest (t). or without having tered. So in a case where the husband takes out administration to his wife, and dies without having administered to all her estate, fully adminis- the ecclesiastical courts, for a long period, thought themselves obliged to commit administration de bonis non of the wife, if required, to the next of kin of the wife at the time of her death (u): Still the beneficial interest in her effects has always been held to be in the representatives of her husband (v). It may be a question, what shall constitute the legal relations of husband and wife, so as to confer the rights *above discussed: This subject has already been considered, incidentally to the investigation of the husband's right to the administration (w). (t) See ante, p. *350. (u) Ante, pp. *412, *413. + American statutes. The statute 29 Car. II. c. 3, § 25, has been re-enacted, in Delaware (1898 R. C. c. 89, § 32), Kentucky (1887 G. S. c. 31, § 11), New Jersey (1877 Rev. 785, § 148), Oregon (1892 An. L. § 3099), Pennsylvania (1883 Purd. Dig. 930, § 4), and Virginia (1887 Code, § 2557). In Colorado (1891 An. Stats. § 3010), the husband takes onehalf of the estate. In Rhode Island (1882 P. S. c. 166, § 14), he not only takes the whole estate as at common law, but if his wife survives him and dies without next of kin, his next of kin take the whole (Id. c. 187, § 4). In some of the other states he takes all if there are no issue, and a child's share if there are issue. This is so, in Georgia (1882 Code, § 1761); and, except that he takes onehalf if there are issue, in Massachusetts (1882 P. S. c. 135, § 3), and a life estate in the whole if there are children, in Maryland (1888 P. G. L. Art. 45, § 2); Engel v. State, 65 Md. 539. He takes the same share that is given to the surviving wife, in Florida (1892 R. S. § 1820), Indiana (1894 Rev. SS 264346), Illinois (1891 R. S. c. 39, § 1), (v) Humphrey v. Bullen, 1 Atk. 458. (w) Ante, pp. *346-*352. Iowa (1888 R. C. § 2440), Kansas (1889 G. S. § 2619), Maine (1883 R. S. c. 75, § 9), Minnesota (1891 Stats. § 5694), Mississippi (1892 An. C. § 1545), New Hampshire (1891 P. S. c. 195, § 10), Ohio (1890 R. S. §§ 4160, 4188), South Carolina (1882 G. S. § 1845), Vermont (1880 R. 'L. § 2230), West Virginia (1891 Code, c. 78, § 9). So too, in California (Civ. Code, § 1386), except that he takes the whole community property (Id. § 1401); Connecticut (1888 G. S. § 623), except her allowance for support; Michigan (1882 An Stats. § 5847), without her $1000 restriction; New York (1889 R. S. 8th ed. 2567, § L. 1867, c. 509), if she leaves descendants; Texas (1888 R. S. Art. 2165), as to their community property. In Iowa, where the wife survives her husband, the share that he would take goes to his heirs and is divided with the heirs of a former husband, if any (1888 R. C. § 2458). In Indiana, a husband living in adultery takes no part of his wife's estate (1894 Rev. § 2658). So, in Pennsylvania, a husband who has deserted his wife for a year 79; (1883 Purd. Dig. 1154, § 30). In Missouri (1887 R. S. § 4465), he takes the whole if there are no descendants, parents, brother or sister, or their descendants. For a particular statement of the American statutes enabling married women to make wills and the restrictions requiring consent of the husband or saving his right to all or part of the property, see 3 Jarm. on Wills 752, American note. Such consent is required, in Delaware, Massachusetts, Nebraska, and Oregon; and his consent to her procuring a collusive divorce and marrying another man is not a consent to her subsequent will, and does not cut off his distributive right as her lawful husband. Hardy v. Smith, 136 Mass. 328. make a will only under certain circumstances, in Georgia, New Hampshire, and North Carolina. She may Against the provisions of her will the husband may take one-third of her property, in Iowa (1888 R. C. § 2436); May v. Jones (Ia.), 54 N. W. Rep. 231; and one-half, in Colorado (1891 An. Stats. § 3010), Kansas (1889 G. S. § 7239), Massachusetts (1882 P. S. c. 147, § 1); and his share as in case of intestacy, in Ohio (1890 R. S. § 5963), and Pennsylvania (1883 Purd. Dig. 1712, § 21). But where the husband has a right to elect to take his half of the personal property in lieu of the provisions of his wife's will, he cannot take half of the property disposed of by her will and all of the property not disposed of by the will (his distributive share where there are no issue). Lee's Appeal, 124 Pa. St. 74. Common-law right. In New York, the surviving husband's marital right to the personal property of his wife (which has been changed by the statute only where she leaves descendants) has remained unaffected by the legislation as to married women where the wife failed to exercise the testamentary power conferred on her by those statutes, Barnes v. Underwood, 47 N. Y. 351; McCosker v. Golden, 1 Bradf. 64; Ransom v. Nichols, 22 N. Y. 110; or failed effectually to dispose of property by reason of legacies in her will lapsing, Robins v. McClure, 100 N. Y. 328, affg. 33 Hun 368; even though the legacy that lapsed was a remainder in the residue after a life estate to her. husband. Fry v. Smith, 10 Abb. N. C. 224. But see, contra (in an earlier case in the same court), as to a similar remainder which was void in part because of the incapacity of the corporate legatee to take the whole amount bequeathed. Kearney v. Missionary Society, 10 Abb. N. C. 274. An insurance policy on the husband's life payable to a trustee for the wife's separate benefit goes to him by right of survivorship. Olmsted v. Keyes, 85 N. Y. 593. So, he takes her choses in action by right of survivorship, and his personal representatives can sue as such for them without administering on the wife's estate, Roosevelt v. Ellithorp, 10 Paige 415; even where the husband had not taken out letters on her estate, or reduced the chose in action to possession. Gilman v. McArdle, 12 Abb. N. C. 414. So, Albee v. Carpenter, 12 Cush. 382; Brown v. Critchell, 110 Ind. 31 (by act of 1843, then in force). But if she survived him, her distributive share of another estate not reduced to possession by him survives to her. Hayward v. Hayward, 20 Pick. 517. The husband is the only party entitled to be heard, in New York, as next of kin in case of intestacy (without descendants) on application for probate of the wife's will. Valence v. Bausch, 28 Barb. 633. At common law no other next of kin could administer on and recover the wife's personal property. Weeks v. Jewett, 45 N. H. 540. And if any other administered, after the husband died without administration, he would take, as trustee for the husband's next of kin, even a chose in action not reduced to possession by the husband. Bryan v. Rooks, 25 Ga. 622. So, where the wife died seized of a vested remainder in personal property after a life estate which outlasted her life. Colson v. Martin, Phil. Eq. 125. But since the married woman's act of 1860, in New Hampshire, the husband takes as a distributee, and not by the common-law right to administer without account. Woodman v. Woodman, 54 N. H. 226. So, in Connecticut. Baldwin v. Carter, 17 Conn. 201. In other states also he could take only by administration her choses in action not reduced to possession in her lifetime, Grote v. Pace, 72 Ga. 302; Townsend v. Radcliff, 44 Ill. 446; and only beneficially, after administration, in accordance with the Statute of Distribution. Cox v. Morrow, 14 Ark. 603. As to the wife's choses in action, see p. *759, American note, ubi supra, SECTION II. Of the rights of a widow, in the distribution of the effects of her intestate husband, under the statute.† The Statute of Distributions, it will be observed, provides, that if the intestate leaves children, as well as a widow, one-third shall go to the widow, and the residue among the children. If there be no children or lineal descendants of children subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred. But the Statute of Distributions, 22 & 23 Car. II. c. 10, has been materially modified in favor of the widow of an intestate dying without issue by the Intestates' Estates Act, 1890, 53 & 54 Vict. c. 29, an act to amend the law by making better provision for the widows of certain intestates in the distribution of such intestates' property. This act provides: Sect. 1. The real and personal estates of every man who shall die intestate (x) after the 1st of September, 1890, leaving a widow but no issue, shall, in all cases where the net value of such real and personal estate shall not exceed 5007., belong to his widow absolutely and exclusively. Intestate's estate not exceeding 500l. to belong to widow where no issue. Intestate's estate widow to have a charge for 500. exceeding 500., Sect. 2. Where the net value of the real and personal estates, in the preceding section mentioned, shall exceed the sum of 5007., the widow of such intestate shall be entitled to 500l., part thereof absolutely and exclusively, and shall have a charge upon the whole of such real and personal estates for such 5007., with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment. Sect. 3. As between the real and personal representatives of such intestate, such charge shall be borne and paid in proportion to the values of the real and personal estates respectively. How charge to be borne as between realty and personalty. be made by Above provision to be in addi *Sect. 4. The provision for the widow, intended to this act, shall be in addition and without prejudice to her interest and share in the residue of the real and per- tion to share of sonal estates of such intestate remaining after payment of the sum of 500l., in the same way as if such residue had been the See American note at end of this Section. (x) The act only applies to the case of a man dying wholly intestate : it residue. does not, like the Statute of Distributions, apply to cases of partial intestacy. Re Twigg's Estate, [1892] 1 Ch. 597. [*1360] |