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effect of the
a new lease of
which the wife
It seems that if there is a dispute between the husband, effect of husclaiming a term of years in right of his wife, and another
mitting the person, relative to the title, and they refer the matter to title to his
wife's term to arbitration, and an award is made of the term to the arbitration : husband, the property in it will be changed by the arbitrament, so as to amount to a reduction of the term into
possession, which will defeat the wife's right by survivorship (z).
If the wife, at the time of her marriage, were a lessee for years, and her husband purchases or takes a lease of the husband taking lands for both their lives, that act will amount to a disposition the land in of the term ; because, by the acceptance of the second lease, has a term the term is surrendered by operation of law, which surrender the husband is enabled to make under his general authority to dispose of the wife's leases in possession (a)
If the husband alone assign a term of which he is effect of an possessed in right of his wife, subject to a condition, and alienation of enter for the condition broken during the coverture, the by husband on
a condition husband will be again possessed in right of his wife as before; which is broken
and the land and the wife being the survivor may be entitled (1).
But if the husband die before the condition broken, his executors or administrators must enter for the breach of the condition, and will hold discharged of the title of the wife (c). If the husband mortgages the wife's term, and by payment effect of hus
band's morts of the money at the day, the estate of the mortgagee ceases, gaging his it seems that the interest of the wife in the term will not be wife's chattels affected (d). If the money be not paid at the day, the estate
hath a term in right of his wife; he is ousted of it, and brings his action, and recovers the same again, and hath his judgment; he shall have it in statu quo." See also note (6) to Co. Lit. 46, b. Hal. MSS.
(z) 1 Roll. Abr. 245, Arbitrament (D.): but see Mr. Roper's note, vol. i. 185, 2nd edit., and Hunter v. Rice, 15 East, 100.
(a) 2 Roll. Abr. Surrender (F.)
p. 495, pl. 8. Bacon Abr. Baron
(6) 1 Roll. Abr. 344, 1. 45—50.
(c) Co. Lit. 46, b. Bac. Abr, tit. Baron & Feme, (C. 2.)
(d) Young v. Radford, Hob. 3. 1 Roper, Husband & Wife, 184, Jacob's edit.
of the mortgagee becomes absolute, and the alienation of the term being complete at law, the wife's legal right, by survivorship, is defeated; and if the equity of redemption were reserved to the husband alone, it has been said that her right will also be defeated in equity, by analogy to the cases in which it has been held that she is bound by the husband's voluntary assignment of her equitable chattels real (e). But if the equity of redemption were reserved to the husband and wife, she would be entitled to survivorship (f): And unless his intention to defeat her right can be collected from the particular instruments of mortgage, it may be doubted whether it will be defeated by the reservation of the equity of redemption to him alone; for that this mere circumstance is not enough to rebut the ordinary presumption that nothing more is intended by the usual mortgage deed than that which is necessary to make the estate a security for the money advanced (g). If in any case the husband, after the estate of the mortgagee has become absolute, pays the money, and takes an assignment to himself, the property will be altered, and the term will go to the executors of the husband, to the exclusion of the wife (h).
The power which the law gives the husband to divest the whole interest of his wife in her chattels real, necessarily authorizes him to divest it partially (i). If, therefore, the husband be possessed of a term for years in right of his
effect of hus-
(e) 1 Roper, Husband & Wife, assigns: It was held that the wife's 184, Jacob's edition. 1 Prest. on right by survivorship was not afAbstr. 345. The latter writer adds, fected : But on a bill by the wife “sed quære."
to redeem the mortgage, the re($) Pitt v. Pitt, 1 Turn. Chanc. demption was decreed on the terms, Rep. 180: In that case a feme sole that the husband's estate should made a mortgage of a leasehold stand in the place of the mortgahouse and afterwards married ; the gee, for sums paid by him out of mortgage was then transferred ; his property in reduction of the the husband joined in the transfer, mortgage debt. and covenanted to pay the money ; (9) Clark v. Burgh, 2 Coll. 221. and the equity of redemption was (h) 1 Prest. on Abstr. 346. reserved to the husband and wife, (i) Bac. Abr. tit. Baron & Feme, their executors, administrators, and (C. 2.)
wife, and he alone grants an underlease for a portion of the term, reserving rent, he becomes the actual owner, to the extent of the term so granted, and the rent will form part of his executor's estate (k); but the residue of the original term will belong to her, as undisposed of by her husband (1).
effect of husWhether the husband's agreement to make an underlease ment for an of his wife's term for years, will produce the same effect as an actual lease, has never been expressly decided. The point was discussed in Druce v. Denison (m), though it became unnecessary to decide it: But Lord Eldon (n) intimated an opinion that the agreement would be good against the wife, and that the rent would form part of the husband's estate: He observed, that as to actual leases there was no doubt that, to the extent of the terms granted, the husband became owner; as to the agreements for leases his apprehension was, that in a Court of Equity the husband was to be considered owner of those interests, and he compared it to an assignment of the wife's choses in action, which, though conferring no legal title, is supported in equity : On the case coming on again, his Lordship said, that he should wish a search to be made on the point, whether it had ever been decided that an agreement would or would not bind the wife; and if it would, whether the rent was to be paid to her or her husband: If that point was untouched by decision, he thought it would be found, that the analogy to other cases would make out that an assignment in equity was to this purpose as good as an assignment at
(k) 6 Ves. 394, by Lord Eldon in Druce v. Denison. See also Co. Lit. 46, 6. Loftus's case, Cro. Eliz. 279. 1 Prest. on Abstr. 344, 345. Had the husband and wife joined in the lease, the rent would have been incident to the reversion, as well after the death of the husband as during his life, and would have belonged to the wife : 1 Prest. on
1 Roper, Husband & Wife, 174, 175, 2nd edit.
(1) Co. Lit. 46, b. Sym's case,
(m) 6 Ves. 385.
law, and he referred to Steed y. Cragh (o) as stating the
principle. 2. Rights of
2. The rights of the administrator of the wife to her wife's administrator to her chattels real when her husband survives. If the husband do chattels real :
not alien them in her lifetime, and he survive her, the law
gives them to him, at least all those of which he had possesthose vested sion jure uxoris during the coverture, not as the administrator during coverture go to the
of his wife, but as a marital right (p). No administration to husband jure her, therefore, need be taken out by him for this purpose (q). mariti:
Consequently, should the husband die without exercising his exclusive right of taking out administration to her (r), her chattels real in possession will go to his administrator,
and not to the administrator of his wife (s). secus, of those But to entitle the husband to the chattels real of the wife,
which were not vested in her possession in her right in her lifetime, he must make himself her representative, by becoming her administrator : As if a feme sole be possessed of a chattel real, and be thereof dispossessed, and then take husband, and die before recovery of possession, this right will not survive to the husband, but go to the personal representative of the wife (t). Therefore if the husband die without obtaining letters of administration, the right will not pass to his administrator, but to the administrator of his wife (u). However such administrator will be considered in equity as a trustee for the representative of the husband (2).
(0) 9 Mod. 43. S. C. 2 Eq. Cas. Abr. 37.
(9) Secus, as to a lease whereof the wife and another were joint tenants; for it shall survive to her companion, inasmuch as he has the elder title to that of the husband : Co. Lit. 185, b.
(9) 1 Roll. Abr. Baron & Feme, (H.8.) Wrotesley v. Adams, Plowd. 122. Hauchet's case, Dyer, 251, a. Co. Lit. 46, b. Ibid. 351, a. Wan v. Lake, Gilb. Eq. Rep. 234. Bedell r. Constable, Vaughan, 185, by Vaughan, C. J., 2 Eq. Ca. Abr.
138, pl. 4. 1 Roper, 173. And the same of an equitable term: Rex v. Holland, Aleyn, 15, by Rolle. 1 Prest. on Abst. p. 343.
(r) See ante, p. 357, 358.
(8) Doe v. Polgrean, 1 H. Black. 535.
(t) Co. Lit. 351,
(2) Ante, p. 359. 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.
If the husband be seised of an advowson in right of his wife, and the church become vacant during the coverture, the wife shall have the void presentation if she survive him, and the husband if he survive her (y), even though, by reason of her not having issue, he be not tenant by the curtesy (z): but if the church fell vacant before coverture, the husband shall not have the turn (a): i. e. it may be considered, he shall not have it as a marital right; but still it will go to him as her administrator (l). It will be observed that the next presentations to vacant churches are not properly chattels real, but chattels personal, and, therefore, in strictness do not belong to this part of the subject of the estate of an executor or administrator.
Of the Estate of an Executor or Administrator in Chattels
Real by Condition, Remainder, or Limitation.
An executor or administrator may become entitled to By condition. chattels real by condition. As where a lease for years has been granted by the testator, upon condition that if the grantee did not pay such a sum of money, or do other acts as the testator appointeth, &c., and the condition is not performed after the testator's death, now is the chattel real come back to the executor (c). So where the condition is, that the testator or his executors shall
to avoid the grant, as where he mortgaged a lease for years, and before the day limited for redemption he dies, his executor is entitled to redeem at the time and place appointed (d).
Likewise a chattel real may accrue to an executor or By remainder.
(y) Co. Lit. 351, b.
Ch. I. S III.
(c) Wentw..Off. Ex. 181, 14th edit.
(d) Ibid. Toller, 164.