die

trustee. So if the husband should, though surviving the wife, before actually administering the estate, an administrator de bonis non would be appointed on the wife's estate, and then, acting as trustee for the husband's estate, pay over the surplus to the administrator of that estate. Accordingly, there is no real connection between the husband's right to the administration and his right to the residue. He might be deprived of the administration and still be cestui que trust of the residue.1 This view of the husband's rights was sanctioned by the New York courts, though on somewhat different grounds, as the theory of a trust for the husband or his representatives was not developed.2 The wife's rights of action may in equity become the property of the husband by a contract between them to that effect, based on a valuable consideration. In such a case he is in substance a purchaser of them, and his title does not depend upon any act on his part reducing them to possession. (5) Chattels real.

This expression includes leases of land.

1 This point has occasioned some difficulty in the courts, but the result is as above stated. The clearest exposition of the law is found in the case of AttyGen'l v. Partington, in the Exchequer Chamber, 10 Jur. N. s. 825, 827, 828; s. c. 33 L. J. Exch. 281; 3 H. & C. 193. The theory of the subject was there directly involved, the question being whether the husband's administrator was liable to a succession duty though the wife's administrator held the assets. Of course he could not so be liable, unless he was an equitable owner. In a very able opinion by WILLES, J., it was held that the husband's administrator was liable to pay the succession duty, as beneficial owner. A single sentence from the report in the Law Journal, p. 287, will show the theory of the decision. 66 As the surviving husband is entitled to letters of administration of his wife's estate, and to reduce such property (if not reduced into possession during the coverture) into possession as her administrator but for his own benefit, so it has further been long established that the circumstance of his death, before he has so reduced the property into possession, shall not affect the title thereto, but that the representative of the wife shall hold the property in trust for the representative of the husband." The case of Fleet v. Perrins, L. R. 3 Q. B. 536; on appeal, L. R. 4 Q. B. 500, does not at all

conflict with Atty-Gen'l v. Partington, supra. The wife's administratrix there brought an ordinary action for money had and received against a debtor to the wife's estate. It was claimed that the action was misconceived (L. R. 3 Q. B. 540), and should have been brought by the husband's administrator. The equitable right of the husband's estate to the proceeds of the suit was not involved. The duty of the wife's administrator, as there held, to be the formal plaintiff against such a debtor is in precise accord with the theory of Atty-Gen'l v. Partington. Elliott v. Collier, 3 Atkyns, 526, before LORD HARDWICKE, is very strong and clear in the husband's favor. The court said that the right to the thing in action vested in the husband before administration was taken out, and that the wife's administrator (other than the husband) acts as trustee for the husband. See also Betts v. Kimpton, 2 B. & Ad. 273; Proudley v. Fielder, 2 My. & K. 57. The trust element in favor of the husband's representatives, though the representatives of the wife must sue, was treated with great clearness by LORD TENTERDEN in Betts v. Kimpton, supra, 276. The same rule was extended to personal property held by the wife in equity for "her sole and separate use." On her death, it passed to her husband. Proudley v. Fielder, supra, 57, 58. 2 Robins v. McClure, 100 N. Y. 328.

The right of the husband to these depends on special rules. The husband is so far owner that he can dispose of them as he pleases, by act taking effect in his lifetime. He cannot leave them to a legatee by his will, to the prejudice of his wife's claim, if she survive. On the death of either, if the lease be then vested in the wife, it belongs absolutely to the survivor.1

(6) Tangible personal property. This vests in the husband at the moment of the marriage, wherever the property may be. Reduction to possession is not necessary. This rule does not include property held in trust or under any fiduciary relation, though he may in some instances perform trusts in his wife's behalf, as, for example, he may act as administrator where she is entitled to be administratrix. Where the husband acts in this manner and wastes the trust estate, he is technically guilty of a "devastavit," and her separate estate will be liable, since it is said to be an "act of folly on her part to marry a man who would waste trust property." The legatees will be held to diligence in pursuing their remedy against her.2 He also is liable for breach of trust committed by her whether before or after marriage: While they both live, they may be sued jointly for waste committed by her, and his estate may thus be made chargeable as well as hers. If he die first, his assets will continue chargeable in equity.5

Subsection II. Statutory changes. An important preliminary remark is, that the statutes regulating this subject cannot constitutionally interfere with vested rights. Any interest that had been actually acquired by the husband by force of the marriage would still remain vested in him. The rules of the statutes could be applied to property of the wife acquired after the statutes took effect, without reference to the question whether the parties were or were not married before their enactment. The right of the husband to take the wife's estate is not an incident of the marriage contract, but is derived from a rule of law; and this rule can at any time be abrogated by the legislature if there be no interference with vested rights. The legislation upon this topic is very extensive and radical, both in England and in a number of the States in this country. The details must be sought in treatises upon this subject. The general result may be indicated in the fol

1 Moody v. Matthews, 7 Ves. 174, 183; Wildman v. Wildman, 9 Ves. 174, 177; In re Bellamy, L. R. 25 Ch. D. 620.

2 Adair v. Shaw, 1 Sch. & Lef. 243; Clough v. Bond, 3 M. & C. 490, 497; Bunce v. Vander Grift, 8 Paige, 37.

3 Bunce v. Vander Grift, supra.

4 Bunce v. Vander Grift, supra, and cases cited.

6 Id.

6 Westervelt v. Gregg, 12 N. Y. 202; Norris v. Beyea, 13 N. Y. 273.

7 Thurber v. Townsend, 22 N. Y. 517.

lowing propositions, observing the same order used in treating of the rules of the common law.

(1) The husband, where this legislation prevails, has no longer an estate for life in the wife's estate in lands held in fee. He cannot take to his own use the rents and profits while he lives. He is, however, according to the New York authorities, tenant by the curtesy after the wife's death, as at common law, unless she conveys her property or disposes of it by will in a manner inconsistent with his claim.1 (a)

(2) Similar rules apply to the wife's life estate in land. He would have no interest in it, nor in her estate for the life of another, except that if she died owner and without a will he might take it as her successor.

(3) This general legislation, emancipating the wife's property from the husband's ownership and control, does not affect an estate "by the entirety." It still remains true that there is a theoretical unity between the husband and wife sufficient to sustain this estate. Accordingly, it remains as at common law.2 (b)

(4), (5), and (6). The wife's rights of action, chattels real, and personal property may be grouped together for the purposes now under consideration. In each the wife is owner, without any right of control on the husband's part, and may sell or bequeath them. If she die owner, and without a will, the husband becomes administrator, and, after the payment of her debts, retains the residue for his own benefit, except so far as there may be special legislation to the contrary. It was not the object of the statutes to disturb the course of succession to the wife's property, but rather to give her the absolute control over it, if she saw fit to exercise it.

This subject has had much attention in the New York courts, for it was urged against the husband's right that his title at common law depended upon his being administrator upon his wife's estate, and that as the statute requiring him to take out letters of administration upon her estate had been repealed, his

1 Hatfield v. Sneden, 54 N. Y. 280.

2 Bertles v. Nunan, 92 N. Y. 152. In this case the subject of the continuance of the doctrine of the unity of husband and wife, notwithstanding legislative action, is considered, pp. 159, 160; Bram v. Bram,

(a) In England, notwithstanding the Married Women's Property Act of 1882, a husband is still entitled on his wife's death to an estate by the curtesy. Hope v. Hope [1892], Ch. 336.

34 Hun, 487; Zorntlein v. Bram, 100 N. Y. 12.

8 McCosker v. Golden, 1 Bradf. 64; Lush v. Alburtis, Id. 456; Ransom v. Nichols, 22 N. Y. 110.

(b) Stelz v. Shreck, 128 N. Y. 263; Miner v. Brown, 133 N. Y. 308; Hiles v. Fisher, 67 Hun, 229.

title to her personal assets by succession could no longer be maintained. The common-law rule has been examined already, and it has been shown that the husband's rights to his wife's personal estate by succession do not depend upon his being administrator, but upon a general rule of substantive law. The principal decisions to this effect will be found in a note.1 The right of the husband to take the wife's estate by succession has been so far modified in New York 2 as to provide that if she leave surviving descendants, and the husband survive, he has the same distributive share in the wife's personal property as a widow has in her husband's personal estate.3 (b)

SECTION II. The duties or obligations which the husband assumes by the marriage.

Subsection I. To pay the wife's ante-nuptial debts. At common law this obligation arises from the rule that the legal existence of the wife is merged in that of the husband. The

1 Ransom v. Nichols, supra; Ryder v. Hulse, 24 N. Y. 372; Olmsted v. Keyes, 85 N. Y. 593, 602; Robins v. McClure, 100 N. Y. 328. In this last case it was held that the fact that the husband was appointed executor, and qualified as such, did not affect his rights.

2 Laws of 1867, ch. 782; 2 R. S. 98, § 79. 8 The principal New York statutes affecting the right of a married woman to hold and dispose of property are: Laws of 1848, ch. 200; Laws of 1849, ch. 375; Laws of 1860, ch. 90; Laws of 1862, ch. 172. Capacity to make contracts is conferred by Laws of 1884, ch. 381, § 1 (a). There is a comprehensive and carefully drawn statute in England, 45 & 46 Vict. c. 75, 1882, making very radical changes in the legal rules previously governing the relation of husband and wife. This act will be referred to hereafter. As far as property is concerned, it declares that the wife shall hold as her own all real and personal property which be

(a) By Laws of 1892, ch. 594, amending Laws of 1884, ch. 381, a married woman may now contract with her husband as well as with third persons, except to alter or dissolve the marriage relation or to relieve the husband from liability to support her. For other statutes, see Laws of 1887, ch. 537, and Laws of 1890, ch. 51. By the latter act a married woman is given a right of action in her own name for injuries to

longed to her at the time of her marriage, and all acquired after marriage, including wages, earnings, money, and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill. (§ 2.) The intervention of a trustee is not necessary to the acquisition of property. (§ 1.) She is allowed the same civil remedies against all persons, including her husband, for the protection and security of her property as a single woman, and in certain cases may cause criminal proceedings to be instituted against him for this purpose. (§ 12.) The husband may in like manner cause criminal proceedings to be instituted against the wife. (§ 16.) In these cases, each of the parties may give evidence against the other (consult amendment 47 & 48 Vict. c. 14, 1884). These statutes are called the "Married Women's Property Acts of 1882 & 1884."

property, person, or character, and for injuries arising out of the marital relation. The same act makes her liable for torts committed by her without the husband's coercion, and relieves him from liability for such torts. See also Code Civ. Pro. § 450, as amended by ch. 248, Laws of 1890.

(b) If she leave no descendants, the rule remains as at common law. Robins v. McClure, 100 N. Y. 328.

action must be brought against both and the judgment obtained against both. This fixes the husband's liability, so that if the wife die after judgment and before execution, the husband will still be liable. He cannot set up the defence of infancy; if he could, there would be no mode of collecting the debt, as the wife cannot (at common law) be sued alone.2 The action must be brought and carried forward to judgment while the wife lives, so that if she die during the progress of the action and before judgment, he is discharged as husband. These rules are applied without reference to the question whether the husband receives property by his wife or not. They depend upon the theoretic unity of the parties. The husband may still be liable after the wife's death as administrator upon her estate, but then only as to assets received by him in that character.

The wife in all such cases is the true debtor. She may be sued alone after the husband's death. A question has, however, been raised whether, after the husband's bankruptcy, property settled upon her to her sole and separate use can be taken by a creditor to pay her debt contracted before marriage. It is assumed in this inquiry that the husband is living. The solution of this question depends on the true theory of the liability of a married woman's "separate estate" for the payment of her debts. The old doctrine was that such an estate can only be made liable by an "appointment" on her part. Opinions diverge as to whether the mere creation of the debt before marriage can be treated as an implied appointment binding the estate after marriage. That is the view in the English cases, in which implications have been pressed very far.5 The New York court held under a similar state of facts that the wife was not liable, since there was no sufficient evidence of intention on her part to charge the debt upon her separate estate. The New York doctrine was cited recently to the English court of equity, but it was not followed.?

By statute it has been provided in New York that while the action for the wife's debts contracted before marriage is still to be brought against both husband and wife, yet that the judg

1 Mitchinson v. Hewson, 7 Term R. general subject of the wife's liability after 344. her husband's death.

2 Roach v. Quick, 9 Wend. 238. Williams v. Kent, 15 Wend. 360. 4 Woodman v. Chapman, 1 Camp. 189. Chubb v. Stretch, L. R. 9 Eq. 555; s. c. 39 L. J. Ch. 329; Biscoe v. Kennedy, 1 Brown Ch. 17 n.

6 Vanderheyden v. Mallory, 1 N. Y. 452. There are dicta in this case on the

7 Chubb v. Stretch, supra, pp. 558, 561. In this case there was some evidence that Mrs. Stretch settled the property on herself to her separate use to avoid her creditors; still, the bill did not seek to set aside the settlement as a fraud on creditors. See 39 L. J. Ch. 329. It was decided on general principles of law.