2. Rights of administrator of wife to her choses in action, when her husband survives. of such additional fortune, but the wife's title by survivorship will prevail; because as a feme covert, she was incapable of contract, and especially of contract with her husband (8). Thus in Lanoy v. Duke and Duchess of Athol (t), it appeared that the husband, by a second settlement, made during the marriage, in consideration of a large sum of money to which the wife became entitled upon her father's death, in addition to securing a rent-charge to her included in the first settlement, provided 6000l. for the portions of daughters in default of issue male, so that there was no provision for the wife other than what she was entitled to under the first settlement: The wife having survived her husband, the question was, whether the second settlement entitled the representatives to the accessional fortune of the wife: And Lord Hardwicke decided that it did not; first, because there was in fact no additional provision made for her by it, and that the portions for daughters had nothing to do with the general rule of a settlement equivalent to the fortune the father had with the mother: And, secondly, and chiefly, as his Lordship expressed himself, because there was no contract on the part of the wife, who was herself incapable of contracting, and had neither father nor guardian to contract for her. And it should seem, that the sanction of the wife's father, guardian or trustee, could not give any additional effect to such a settlement, as against her, in the event of her surviving (u). It remains to consider, secondly, the rights of the administrator of the wife to her choses in action, when the husband survives. If the husband takes out letters of administration to her, (to which, as it has already appeared (x), he has exclusively the right), he will be entitled, as such administrator, to all her personal estate which continued in (s) 1 Roper, Husb. & Wife, 303, (t) 2 Atk. 448. (u) Stamper v. Barker, 5 Madd. 157. (x) Ante, p. 357, 358. action or unrecovered at her death. Therefore, where it was stipulated in marriage articles, that money in the funds, the property of the intended wife, should be for her sole and separate use, as if she were sole and unmarried, and the marriage took effect, and the wife died in the husband's lifetime without issue, and without having made any appointment of her separate property; it was held by Sir John Leach, M. R., that the husband was entitled to it, as her administrator, and not her next of kin (y). If the husband should die before he has obtained a grant of the administration, or, after having taken out letters, before all her property in action has been reduced into possession, such property cannot be recovered by his represen tatives but administration must be taken out to the wife for that purpose, either generally, or de bonis non, as the case may require (2): Such administrator, however, will be considered in equity, as a trustee of what he receives for the personal representatives of the husband (a). Where there was a fund in the Court of Chancery, standing to the separate account of a married woman, whose husband survived her, and died before administering to her estate, it was held by Lord Brougham, (reversing the decision of Sir J. Leach), that the fund ought to be paid out to the wife's legal personal representative, without (y) Proudley v. Fielder, 2 M. & K. 57. But where a husband and wife lived separate from each other, and at her death she was possessed of cash and bank-notes, arisen from property settled to her separate use, it was held by Sir L. Shadwell, V. C., that the husband was entitled to them in his marital right; for that as she had not disposed of them, as she might have done, by deed or Will, the quality of separate property ceased at her death, and her husband was entitled jure mariti and need not become her administrator in order to entitle himself: Molony v. Kennedy, 10 Sim. 254. See also Bird v. Peagrum, 13 C. B. 650. (z) Betts v. Kimpton, 2 B. & Adol. 273. (a) Cart v. Rees, cited in Squib v. Wyn, 1 P. Wms. 381. Humphrey v. Bullen, 1 Atk. 458. S. C. 11 Vin. Abr. 86. Elliott v. Collier, 3 Atk. 526. S. C. 1 Ves. Sen. 15. 1 Wils. 168. See ante, p. 359, 414, 415, as to the person entitled to the grant of such an administration. also taking out administration to the estate of the husband (b). It is obvious, that in all the instances above stated, where the wife's right by survivorship, in case of her outliving her husband, would be barred by his having reduced her choses in action into possession in his lifetime, there, in the event of his surviving her, he may bring an action respecting such choses in action in his individual character, and must not sue as the administrator of his wife. Thus where on a bond to the wife, dum sola, the husband gives a letter to another to receive the money, who receives it, and then the wife dies, the husband shall bring an action to recover it from the receiver, individually, and not as his wife's administrator (c). So where a legacy was left to a feme sole, who afterwards married, and then the husband and wife gave a letter of attorney to another to receive the money, who received it, and afterwards the wife died, and then the husband died; it was held that the action was well brought by the husband's administrator: because the receipt changed the property to the husband alone (d). If the wife be a mortgagee in fee, the husband surviving her will be entitled to the mortgage, as her administrator, and the heir will be a trustee for him. This was admitted in Turner v. Crane (e), where, however, the heir was held entitled, on the ground that there was no covenant for payment, a distinction which does not now prevail (ƒ). (b) Gutteridge v. Stilwell, 1 M. & K. 486. Ante, p. 360. However, in Loy v. Duckett, 1 Cr. & Ph. 312, Lord Cottenham said that Sir J. Leach's view was more correct than Lord Brougham's; because it would follow from Lord Brougham's, that even where an executor had assented to a legacy, he might still sue for the fund, out of which the legacy was to be paid, on the strength of his legal title, without making the legatee a party; which would, in fact, be adminis tering the fund in the absence of the owner. See also Pennington v. Buckley, 6 Hare, 459, by Wigram, V. C. (c) Huntley v. Griffith, Moor. (e) 1 Vern. 170. S. C. 2 Ch. In a case where the wife and her second husband demised lands, which she held in dower from her first husband, for a term of years, reserving a rent; the rent became in arrear, and the wife died; her second husband was held entitled to the arrears, and not the heir of the first husband, who could not claim them, since he was a stranger to the lease (g). It must be observed, that, at common law, if a feme sole was seised of a rent service, charge, or seck, in fee, fee tail, or for life, which was behind and unpaid; and she took husband, and the rent was behind again, and then the wife died; the husband should not have the arrears grown due before the marriage, but for those become due during the coverture, the husband might have had an action of debt (h). But now by the statute 32 Hen. VIII. c. 37, s. 3, if the husband survive the wife, he shall have the arrears incurred, as well before the marriage, as after (i). So if a husband be seised with an advowson in right of his wife, and the church become void during the coverture, the wife shall have quare impedit, if she survive him, and the husband, if he survive her (k); even though he, by reason of her having had no issue, be not tenant by the curtesy (1) but if the church fell void before the coverture, the husband cannot bring a quare impedit if he survive her (m). In these cases, when it is said, that the husband cannot at common law recover the arrears of rent due before the marriage, and that he cannot now have a quare impedit for a presentation which fell vacant before coverture, it must be understood, (it is submitted), that he cannot claim them as a marital right, in his individual character: because it seems clear, that, as her administrator, he might at common law (g) 2 Bro. 204. b. tit. Rents, pl. 10. 1 Roper, Husb. and Wife, 206, 2nd edit. (h) Co. Lit. 162, b. 351, b. So for the arrears of an annuity to the wife Anon. Owen, 3. (i) Co. Lit. 351, b. Husband not entitled where wife died joint tenant of a re versionary chose in action. have recovered the rent, (as soon as the estate of freehold was determined), in the former case, and may now maintain a quare impedit in the latter. The reason given by Lord Coke against the right of the husband, is, that the arrears of rent and the void church were merely in action before the marriage (n): Hence it should follow, that, like all other choses in action not reduced into possession, though they do not belong to the surviving husband jure mariti, they will go to him as his wife's administrator. If previously to the marriage, the wife obtained a judg ment and then she and her husband sue out a scire facias and have an award of execution, but, before execution, the wife dies; the husband shall not proceed as her administrator, but may sue out a new scire facias by survivorship in his individual character (o). So in the case of Forbes v. Phipps (p), there was a decree of a Court of Equity, that one-sixth share of a residue, to which the wife was entitled, should be paid to her and her husband: The wife died before the money was received, and her husband being the survivor, it was determined that he should take the money under the decree by survivorship, and not as his wife's administrator, so as to render the fund liable in his hands to her debts. A singular case has lately arisen as to the husband's rights, as survivor, to his wife's reversionary choses in action. A woman who was entitled to a pecuniary legacy, as one of several joint-tenants in reversion after the death of a tenant for life of the fund, married, and then predeceased the tenant for life: The question was, whether, on the death of the tenant for life, the wife's share should go to the surviving joint-tenants or to her husband: And Turner, V. C., decided in favour of the joint-tenants: His Honor held that, as the wife's interest was reversionary, the title of the (n) Co. Lit. 351, b. (0) Woodyer v. Gresham, 1 Salk. 116. See post, Pt. II.B. III. C. IV. as to proceedings in lieu of scire facias. (p) 1 Eden. Rep. 502. See also Hore v. Woulfe, 2 Ball & Beat. 424. |