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also taking out administration to the estate of the husband ().
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 (f).
(6) Gutteridge v. Stilwell, 1 M. tering the fund in the absence of & K. 486. Ante, p. 360. How- the owner. See also Pennington r. ever, in Loy v. Duckett, 1 Cr. & Buckley, 6 Hare, 459, by Wigram, Ph. 312, Lord Cottenham said that V. C. Sir J. Leach's view was more cor- (c) Huntley v. Griffith, Moor. rect than Lord Brougham's; be- 452. S. C. Gouldsb. 159, pl. 91. cause it would follow from Lord 1 Roll. Abr. 342, tit. Baron and Brougham's, that even where an Feme, (D.) pl. 7. executor had assented to a legacy,
(d) Ibid. he might still sue for the fund, out (e) 1 Vern. 170. S. C. 2 Ch. of which the legacy was to be paid, Rep. 242. 1 Roper, Husb, and on the strength of his legal title, Wife, 205, 2nd edit. without making the legatee a party; (f) See ante, p. 608. which would, in fact, be adminis
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 (l): 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
(9) 2 Bro. 204. b. tit. Rents, pl. 10. 1 Roper, Husb. and Wife, 206, 2nd edit.
(h) Co. Lit. 162, 6, 351, b. So for the arrears of an annuity to
the wife : Anon, Owen, 3.
() Co. Lit. 351, b.
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. Husband not A singular case has lately arisen as to the husband's entitled where wife died joint. rights, as survivor, to his wife's reversionary choses in action. tenant of a re. A woman who was entitled to a pecuniary legacy, as one of versionary chose in action. 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.
husband could not arise till after her death in his life. time; and that the case, therefore, did not fall within the principle of the rule as to ehattels personal, but within that as to chattels real; and according to the latter rule (q), as the property did not vest in the husband, the joint-tenancy was not severed by the marriage, but continued till the death of his wife; and then the elder title of the other joint-tenants by survivorship prevailed (r).
CHAPTER THE SECOND.
TO WHAT CHOSES IN ACTION THE EXECUTOR OR ADMINISTRA
TOR IS ENTITLED, WHERE THE ACTION ACCRUES AFTER THE
DEATH OF THE TESTATOR OR INTESTATE.
Actions for torts done in the executor's time.
IT is now proposed to consider in what cases an executor or administrator may sue, where the cause of action accrues after the decease of the testator or intestate.
Upon the death of the testator or intestate, if any injury is afterwards done to his goods and chattels, the executor or administrator may bring an action for damages for the tort: And under such circumstances, he has his option, either to sue in his representative capacity, and declare as executor or administrator, or to bring the action in his own name, and in his individual character.
This right of action, and option as to the form in which it shall be brought, exist in the executor or administrator, whether he had ever had actual possession of the property or not. Mr. Justice Buller, indeed, in Cockerill v. Kynaston (a), laid down, that if the goods, which were the subject of the action, were never in the actual possession of the executor or administrator, it is absolutely necessary for him to declare in that character: But that opinion has been since frequently overruled (6): For it is a rule of law, that the property of personal chattels draws to it the possession, so that the owner may bring either trespass or trover at his election against any stranger who takes them away (c): Now on the death of the testator or intestate, his executors
(a) 4 T. R. 281.
(6) Bollard v. Spencer, 7 T. R. 358, Hollis v. Smith, 10 East, 294.
Grimstead v. Shirley, 2 Taunt. 117.
(c) Bro. Trespass, 303. Hudson v. Hudson, Latch. 214.