WIFE'S TERMS FOR YEARS. Husband's forfeiture of. By waste, outlawry, attainder, conviction, or his being se. which the law makes of it in instances of his misconduct (a). Thus, if he commit waste, the term will be forfeited (b). So also his outlawry or attainder for felony, or his conviction of any such crime, will be followed by the same consequence (c). Again If he be found felo de se, that will be a forfeiture found felo de of his wife's term, whether it be hers alone, or whether it had been granted to her and her husband jointly. Husband's creditors. Wife's term may be taken during the marriage, And if he have a term for years in his own right, and another in right of his wife, his forfeiture will extend to and comprehend both the terms (d). The power of the husband over his wife's term for years may be taken advantage of by his creditors during the marriage. If, then, he be possessed of such a term in right in execution of his wife, it may be sold under a fieri facias (e). by them But although it may be extended or sold for the satisfaction of his debts, yet if that be not done during his life, and his wife survive him, the term in her possession will be discharged from the demands, because she claims it paramount her husband, and therefore exempted from the claims of all persons deriving titles under him. It seems, however, that if the term had been purchased by the husband, and the conveyance taken to himself and his wife, it might have been sold or extended after his death, since the purchase and settlement were and even after his death, if it be of his purchase, and the conveyance taken to him and his wife. (a) 1 Roll. Abr. 851, pl. 50. (b) Co. Litt. 351. (c) Ibid. 4 Black. Com. 387. 4 Black. Com. 387. (d) Jenk. Rep. 65. 2 Black. Com. 421. (e) Co. Litt. 351. 1 P. Will. 258. posses HUSBAND'S INTEREST IN WHICH HIS WIFE TAKES MINISTRA the voluntary acts of the husband; and the sion of his wife subsequently to his decease is quodam PROPERTY modo, a continuation of her husband's interest (a). III. With respect to the interest of the husband AS EXECUin, and his power over the personal estate and real TRIX OR ADchattels of which his wife is possessed or entitled TRIX. to as executrix or administratrix, and his liabilities on account of the same, proposed to be considered in this section; these subjects will be treated upon under the following heads : 1. The husband's interest in and power over such property during the marriage. 2. The wife's power to dispose of it by will. 3. Whether the wife is to sue singly or jointly with her husband for the recovery of outstanding assets. 4. The liabilities of husband and wife jointly and singly for devastavits.—And, 5. When the wife's death, during legal proceedings against both of them for her devastavit, will and will not discharge her husband. 1. In the last section it appeared that marriage was an absolute unqualified gift to the husband of all the goods and personal chattels which his wife was absolutely possessed of at that time, or became so afterwards in her own right, whether he survived her or not. husband of Marriage, however, makes no such gift to him of Marriage is the goods and chattels which belong to his wife in no gift to autre droit, as executrix or administratrix; because property belonging to such a gift might prove disadvantageous to the cre- wife in autre droit. (a) See 8 Rep. 171. INTEREST IN HUSBAND'S ditors, &c. of the testator or intestate; besides, since the wife takes no beneficial interest in the property, there is none such which the law can transfer to him (a). WIFE TAKES TRIX OR AD- TRIX. But he may But the husband is entitled to administer in his wife's right, for his own safety, lest she misapply the funds, for which he would be liable. Incident to administer in this right he has the power of disposition over the her right, and personal estate vested in his wife as executrix or dispose of the property. administratrix (b). And release debts. As to merger. Thus in Arnold v. Bidgood (c), the husband being possessed of a lease of tithes in right of his wife an executrix, granted all his right, title, and interest in them; and it was determined that they passed to the grantee. So also in Levick v. Coppin (d), the residue of a term of years being vested in the wife as administratrix, her husband released it to the plaintiff, and the release was held to be good. Upon the same principle the husband may release debts owing to the estate of the testator or intestate, to whom the wife is executrix or administratrix (e). If he be entitled to a term for years in her right as executrix or administratrix, and have the reversion in fee in himself, the term will not be merged; because a man may have a freehold in his own right and a term for years in autre droit; and it seems essential to merger, that the term and the freehold should vest in a person in one and the same right (ƒ). (a) Co. Litt. 351. 11 Mod. 178. (6) Jenk. Rep. 79. (c) Cro. Jac. 318. (d) 2 Black. Rep. 801. 3 Wils. Rep. 277, S. C. (e) Br. "Baron and Feme," pl. 80. (f) Co. Litt. 338 6, and see 3 Term Rep. 401. 2 Roll. Rep. 472. 1 Roll. Abr. 934, pl. 10, 11. Cro. Jac. 275. INTEREST IN As the husband is answerable for his wife's acts, HUSBAND'S she is not permitted to administer without his con- PROPERTY currence, nor will payments made to her as executrix WHICH HIS or administratrix without his consent be valid (a). WIFE TAKES AS EXECU MINISTRA without her rence. ty without 2. Since the husband has no beneficial interest in TRIX OR ADthe personal estate which the wife takes in the cha- TRIX. racter of executrix; and as the law permits her Wife cannot to take upon herself that office, it enables her, in administer exception to the general rule that a married woman husband's cannot dispose of property, to make a will in this concurinstance, without the consent of her husband, re- But she may stricted, however, to such articles to which she is bequeath such properintitled as executrix. The effect of such an instrument is merely to pass, by a pure right of representa- her hustion to the testator or prior owner, such of his personal assets as remain outstanding; and no beneficial interest which the wife may have in any part of them (b): and with respect to the assets which may have been received by the feme-executrix during the marriage and not disposed of, they immediately become the husband's property, and are not affected by the will (c). band's con sent. Effect of such a will. The proper probate in this case is one with the Probate of it. wife's will annexed, limited to the goods which she was intitled to possess as executrix; under which probate no other property can be recovered (d). 3. As the property in the personal estate which As to their the wife takes as executrix or administratrix before joining and the marriage is in herself, her husband cannot sue nor be impleaded concerning such estate without the wife being joined as a party (e). (a) 1 Salk. 282. 2 Bro. C. C. 534. (b) 15 Ves. 156. (c) Hodsden v. Lloyd, (d) On this subject see ante, p. 166 et seq. (e) Godb. 40. 11 Mod. 177. Sid. 299, pl. 4. not joining in actions for recovery of property due to the wife in autre droit ; HUSBAND'S POWER OVER This rule, however, admits of exceptions; for if the husband alter the nature of the debt owing to WHICH HIS his wife, in the character of executrix or administra-. trix, he alone may bring the action for recovering it. WIFE TAKES AS EXECU- Devastavit. and if they recover a joint judgment in any of such actions it Thus, if he were to indulge the debtor with further time, in consideration of an express promise to pay the money to the husband, &c. he alone may compel payment of it by action, for by the promise, it became in law his own money, although when received a devastavit, if not properly administered; so that joining the wife in the action would be error (a). He may also sue alone, if the note or security be given to them jointly, as to him and to his wife as executrix or administratrix (b). If the husband and wife recover judgment for a debt owing to the wife as executrix or administratrix, and she die, the succeeding executor or administrator, and not the husband, will be intitled to a will not sur- scire facias upon such judgment, because the wife vive to the husband. was intitled to the demand in autre droit, and the debt belongs to the new executor or administrator of the testator or intestate (c). 4. With respect to the liability of the husband and wife, jointly or severally, to answer for devastavits committed by them respectively when she is executrix or administratrix, the consideration of the question seems properly to fall under this section, although in a subsequent part of this work the husband's liabilities for his wife's acts and agreements before and during the marriage are separately discussed. (a) Yard v. Ellard, 1 Salk. 117, pl. 8. Carth. 463. Sid. 299. (b) Ankerstein v. Clarke, 4 Term Rep. 616. (c) Beamond v. Long, Cro. Car. 208. |