Imágenes de páginas
PDF
EPUB

is meant for the dress and ornament of the wife, in a mode suitable to the degree of the husband, so as to maintain his dignity, and not for the accumulation of the fund; so that if the wife does not choose to expend the money for the purpose to which it was appropriated, viz., to support his and her rank in society, she cannot justly claim the arrears of it (m). Again, if pin-money be in arrear, and the wife dies, her representatives cannot sustain any claim for it whatever; the ground of which rule is, that the pin-money was not meant for the sustentation of the wife, but for her dress and ornament in a station suitable to the degree of her husband : The authorities connected with this subject, and the nature of pin-money in general, were fully discussed and commented on in the arguments of counsel and the judgment of Lord Brougham, in a late case relating to the arrears of the pin-money of the Duchess of Norfolk (n). Her Grace was entitled, under the trusts of the settlement made in contemplation of her marriage with the Duke in 1771, to two annuities of 7001. and 3001., charged by way of pin-money, upon estates to which the Duke was entitled for his life: The Duke received all the rents and profits of the estates, and maintained the Duchess according to her rank, up to the time of his death in 1815: In 1816, the Duchess was found to have been a lunatic, without lucid intervals, from 1782, and she continued so until 1820, when she died intestate: Her personal representative claimed from the personal representative of the Duke, arrears of the pin-money, from 1782 to 1815: And it was held by the Lords, reversing the decree of the Vice Chancellor (0), that the personal representative of the Duke would have been entitled to set off any payments made by the Duke in respect of the personal expenses of the Duchess, against a claim for the arrears of her pin-money by her, if it had been

(m) 2 Cl. & Fin. 657. S. C. 8 Bligh, 249.

(n) Howard v. Digby, 2 Cl. & Fin. 634. 8. C. 8 Bligh, 224,

See also Jodrell v. Jodrell, 9
Beav. 45.

(0) Digby v. Howard, 4 Sim. 588.

made on her behalf during her lifetime, and that the personal representative of the Duchess was not entitled to any arrears whatever.

what are so

Another instance where the wife may acquire a property Paraphernalia : in her husband's personal chattels, by gift from him, so as to exclude his executors or administrators, is to be found in her paraphernalia. The term is borrowed from the civil law, and is derived from the Greek, trapa pepun, i. e. something to which she is entitled over and above dower. Our law uses it to signify the apparel and ornaments of the wife, considered : suitable to her rank and degree (p). What are to be so considered, are questions to be decided by the Court, and will depend upon the rank and fortunes of the parties (9).

Pearls and jewels, whether usually worn by the wife, or only on birth-days, and other public occasions, are to be considered paraphernalia (r). In the reign of Queen Elizabeth, the executors of Viscount Bindon brought detinue against the widow of the deceased viscount, and declared upon the detainer of certain jewels : The defendant justified the detainer of them as her paraphernalia: It was said by Manwood, Chief Baron, that paraphernalia ought to be allowed to a widow, having regard to her degree, and in this case the husband of the defendant being a viscount, 500 marks was but a good allowance for such a matter (s).

In the reign of Charles I. a chain of diamonds and pearls worth 3701., being usually worn by a lady, who was a daughter of an earl of Ireland, and a baron of England, and

a

(p) 2 Black. Comm. 436. A bed is also in some authors enumemerated among the paraphernalia: Com. Dig. Baron & Feme, (F. 3). Noy enumerates “ all her apparel, her bed, her copher, her chains, borders, and jewels." Max, c.

"

. C. 49. And Swinburne mentions the ancient and general custom, as to widows, of the province of York, as extending “not only to their ap

parel, and a convenient bed, but a
coffer with divers things therein
necessary for their own persons."
Pt. 6, s. 7, pl. 5.

(g) 2 Rop. Husband and Wife,
141, 2nd edit.

(r) Graham v. Londonderry, 3 Atk. 394, by Lord Hardwicke.

(s) Viscountess Bindon's case, 2 Leon. 166, pl. 201. S. C. Moor. 213.

the wife of a knight and a serjeant-at-law of the king, were considered bona paraphernalia (t). In the year 1674, Lord Keeper Finch said, he never knew any paraphernalia allowed, but where the party was noble either by birth or marriage (u): but in the year 1721, Lord Macclesfield, in the case of Tipping v. Tipping (x), decreed, that the widow of a commoner should have jewels, &c., to the value of 2001. and upwards, as her bona paraphernalia. Lord Talbot afterwards allowed the widow of a private gentleman her gold watch, and several gold rings, given at the burials of relations (y). And in a case where a Mrs. Northey, in the lifetime of her husband, was possessed of jewels to the value of 30001. and upwards, which had been bought partly with her own money, and partly her husband's, and had been worn by her whenever she was dressed; Lord Hardwicke held, that she was entitled to them as paraphernalia, and said, that the value made no alteration in the Court of Chancery (2).

The following case, as decided Mich. 5 Geo. I., is reported in Viner's Abridgement (a): Mr. Calmady having a crocheat of diamonds, which was his first wife's, in 1695 makes his Will, and, amongst other things, devises this crocheat to his eldest son, and that it should go in succession to the heir of his family as an heir-loom: Afterwards, in 1699, he marries a second wife, (the defendant,) and turns this crocheat into a necklace, and adds several new diamonds to it to the value of 2001., which was more than the value of the crocheat: The plaintiff, as heir to Mr. Calmady, (though not the eldest son to whom it was specifically devised,) demands this crocheat of the defendant, the widow of Mr. Calmady: Counsel for the defendant insisted, that the defendant was entitled to it

(t) Lord Hastings v.

Sir A. Douglas, Cro. Car. 343. S. C. 1 Roll. Abr. 911, pl. 9. W. Jones, 334.

(u) Lady Tyrrell's case, 1 Freem. 304.

(3) 1 P. Wms. 729.

(y) 2 Eq. Cas. Abr. 156, in margine.

(z) Northey v. Northey, 2 Atk. 79.

(a) Calmady v. Calmady, 11 Vin. Abr. 181, pl. 21.

[ocr errors]

as part of her paraphernalia, which the husband cannot give away from his wife by Will, though he may dispose of it in his lifetime, and the wife shall retain it against the devisee or executor of her husband, unless in the case of creditors, who cannot otherwise have a satisfaction of their debts : Counsel for the plaintiff said, that though formerly it was a doubt whether the husband could devise any part of the paraphernalia of the wife, yet of late it has been holden, that the husband may devise specifically jewels of his own which he permitted his wife to wear, though they shall not go to his executor, or to a general residuary legatee, and that, in this case, there being no direct proof of an express gift to the wife, only a permission to wear them, they are well devised to the heir as an heir-loom, and that the altering and turning the crocheat into a necklace, and permitting his wife to wear them, was no revocation of the devise: Parker, C., seemed to doubt at first, that turning the crocheat into a necklace, adding new diamonds to it, and permitting his wife to wear it, was a revocation of the devise, but at last ordered the Master to examine and separate the old diamonds from the new, and decreed the diamonds of the crocheat to the plaintiff as heir-at-law, and specifically devised to him as an heirloom.

On the authority of this case it was ruled by Lord Langdale in Jervoise v. Jervoise, that family jewels, which have been handed down from father to son, do not constitute paraphernalia, notwithstanding they may have been worn by the wife at Court and on other full-dress occasions; but that jewels presented to a wife during coverture by a third person, or by her husband for the purpose of ordinary use as befitting her station in life, are properly paraphernalia (b).

If the husband delivered to the wife a piece of cloth to be made into a garment, and dies, though it was not made into

[ocr errors][ocr errors]

as

(6) 17 Beav. 566. But
to those presented to her by a

third person, see post, p. 685, contra.

a garment in the life of the husband, yet the wife shall have
it, and not the executors of the husband (c). By the custom
of London, a citizen's widow may retain some part of her
jewels as paraphernalia, but not all (d).

It will make no difference as to the widow's right, that the
jewels, &c., were in the custody of the husband, if the wife

occasionally wore them (e). the wife cannot There is an important distinction between gifts of the dispose of them husband to the wife, for her separate use, and gifts by him to by gift or Will during ber hus- her as paraphernalia ; for she may dispose absolutely of the

2 band's life :

things given to her for her separate use ; but where the
husband gives them to her expressly for the ornament of her

person, she cannot, according to our law, dispose of them by
the husband gift or Will during his life (f); although by the civil law,
may sell them
or give them

the wife has such an absolute property in them that she

might alien them in vitâ mariti, invito marito (g). But the
but he cannot
devise them :

husband may sell them or give them away in his lifetime (h),
although he cannot dispose of them by Will during her

[ocr errors]

away :

life ().

they are subject to the debts of the husband :

By the civil law, bona paraphernalia in all cases go to the wife, to the exclusion of the executor, nor are they subject to the payment of the husband's debts (k). But by our law they are clearly liable to his creditors, and, therefore, the widow will not be entitled to them, (except as far as her necessary

[blocks in formation]

(f) Graham v. Londonderry, 3 Atk. 394.

(9) Cro. Car. 344, by Berkeley and Jones, Justices. 3 Bac. Abr. 66. Executors, (H. 4).

(h) 3 Atk. 394.

(i) Cary v. Appleton, 1 Cas.
Chan. 240. Godolph. Pt. 2, c. 15,
s. 1. Tipping v. Tipping, 1 P.

1
Wms. 730. Northey v. Northey, 2
Atk. 78, 79. Seymour v. Tresilian,

3 Atk. 358. 2 Black. Comm. 436.
This was denied by Richardson,
C. J., and Cooke, J., in Lord
Hastings v. Douglas, Cro. Car.
345, though agreed to by Berkeley
and Jones, Justices; and Harcourt,
C., reserved the consideration of
the point, in Wilcox v. Gore, 11
Vin. Abr. 180, 181. See also Cal-
mady v. Calmady, ibid. 181; ante,
p. 680, 681, and 3 Bac. Abr. 66,
Executors, (H. 4), where the hus-
band's power to dispose of them by
Will is asserted.

(k) Swinb. Pt. 6, s. 7, pl. 5.
Godolph. Pt. 2, c. 15, s. 1.

[ocr errors]
« AnteriorContinuar »