trator was not compellable to distribute the estate of the intestate. Thus, when any person had obtained the appointment of administrator, he would take the whole estate, although there were others of equal degree of kindred with himself, who had a right to the estate equally with him. (a)

The husband administrator, imitating the example of all other administrators, refused to distribute the estate of his wife to his wife's relations, who alone were entitled to it. To enforce the rights of those to whom estates belonged, the statute of 22 Car. II. was enacted, compelling administrators to distribute the estates of intestate persons, to those to whom they belonged.

From this view of the subject, it is manifest, that this statute did not give any new right to the representatives of the deceased, but afforded them a remedy to enforce their ancient rights, defining more particularly than had been heretofore done, who were entitled to a distributing share.

If then it should be asked, whether the administrator of the deceased wife, under this statute, is liable to distribute her choses in action to her representatives, that is to say, to her issue, and, for want of issue to her next of kin and their legal representatives, according to the direction of that statute; the answer must be, that he is liable, for the express words of the statute make him liable. No other answer can be given. Before the enacting of this statute, all the children of a deceased person were equally entitled to their shares of the personal estate of their father; yet, if one of them procured administration on the estate, he would take the whole estate to himself. In the same manner, when the wife died, the husband, being considered as having a legal right to the administration on her estate, and having obtained the appointment of administrator on his wife's estate, could not be compelled to distribute to her representatives. But this statute of 22 | Car II. made it the 17 duty of all administrators to distribute the estates of deceased persons. By a subsequent statute of 29th Car. II. husband's were permitted, after having paid the debts due from their wives, to hold exclusively all their wives' choses in action, without any liability to account with any person for them. This statute was not declaratory of the common law, as the statute of distributions was. It totally altered that law, giving that to the husband which before belonged to the representatives of the wife. By this statute, that estate, which, before the statute of 22d Car. II. the husband

(a) Moor, 154. Holt, 83, 191.

held unrighteously from the true owners, he is now entitled to hold exclusively to himself, and that legally. In several of the states, there is no such statute as 29th Car. II. placing husbands in a different situation from other administrators. That statute was enacted at a period long after the emigration of our ancestors to this country; so that there can be no pretence that it has the influence of a law here. All the states, however, have statutes of distributions similar to the statute of 22 Car. II. compelling all administrators to distribute the estates of intestate persons, to the issue of the deceased, and, on failure of issue, to his or her next of kin and their legal representatives, varying indeed, in some respects, from the English statute on that subject and from each other. I apprehend, therefore, that, in such states, the issue of the deceased wife, or her kindred, are entitled to her choses after the payment of debts; and not the husband. If a wife, having a separate property, should die without disposing of it, the husband is administrator, and it is assets in his hands; and after debts are paid, the surplus belongs to him. It is said by the Chancellor, in 1 Ves. Jr. 49, that he takes it as next of kin. I apprehend that a husband, as such, is not of kin to his wife, and is not entitled to her estate, on that ground. "Of kin," means related by blood, as in the 18 statute of Henry VIII. which was printed in Latin, which directed to whom administration of intestates' estates ought to be committed; the words since translated into English, "next of. kin," are "proximo de sanguine."-The rule provided for computing the degrees of kindred, excludes the idea of husband, as such, being of kin to the wife. By this rule we ascend from one of the relations to the person who is the common ancestor of them both, counting one to each ancestor of his, until we arrive at the common ancestor; and then descend, counting one to each ancestor of the other relative, until we arrive at that other relative. Thus, if would know how nearly related Polly Stiles is to Alfred Stiles; Polly being the daughter of Thomas Stiles, and Alfred the son of John Stiles; and Thomas and John being brothers, and the sons of Reuben. Counting from Polly to Thomas her father, is one; from Thomas to Reuben is two. We have now arrived at the common ancestor of both; for Reuben is grand-father both to Polly and Alfred. Now, counting down from Reuben to John, the father of Alfred, is three; and from John to Alfred is four; so that Polly and Alfred are related in the fourth degree. But no such computation can be made to ascertain the relationship of husband and wife, unles they were

related before their intermarriage. If the husband be of kin to his wife; I presume the wife is of kin to the husband. If so; the statute, which directs administration to be granted to the widow, or next of kin, is tautological. For, if she be related to the husband, as next of kin, she would have been included. in the statute. If the direction had been to give it to the next of kin, I entertain no doubt but that he takes the surplus after her debts are paid, by virtue of 20th Car. II. which gave to him all the personal estate of his wife, after her debts were paid; and in those states where such a law as 29 Car. II. 19 exists, the husband will take such estate.

In 3 Ves. 247, it was decided, that a husband was not next of kin to the wife; and that he took her personal estate as administrator, without liability to account after debts were paid; and whether he administer or not, and dies, and her next of kin administer, such next of kin is a trustee for the personal representative of the husband. (a)

An annuity is granted to a femme sole; she marries, and, during the coverture, arrears accrue: she dies; the arrears belong to him as husband, and not as administrator, by the common law. By statute of Henry VIII. the arrears before coverture also belong absolutely to him. (b) The reason why the husband is entitled at common law, to the uncollected arrears of the annuity which became due during the coverture, is founded on the same principle as that by which the husband is entitled to the usufruct of her real property. An annuity, although it has the appearance of personal estate, is, in fact, real estate; it is an incorporeal hereditament.

(a) 1 P. W. 331. 3 Atk. 526. 1 Wils. 168. 1 Ves. 15. (b) Owen 3. 4 Co. Rep. 57.

CHAPTER II.

The Husband's Right to Judgments obtained in his own Name and his Wife's. His Right to her Chattels real. His Right to her Real Property during Coverture, and after her Death. WHEN a judgment has been recovered in the name of husband and wife, for a debt due to the wife, it is a settled rule, that if the husband dies before collection, such judgment belongs to the wife; but if she dies before the husband, and before collection, the judgment belongs to the husband. (a) (1) It is easy to see why it is that the wife is entitled to the judgment when the husband dies first, and the money is not collected. This judgment is founded on a chose which belonged to her before marriage; and, by the law of baron and femme, on the husband's death, she is entitled to her choses in action, not collected or disposed of by the husband during the coverture. On what principle, is it then to be accounted for, that, on her death, he should be entitled to this judgment as exclusively, as if it had been obtained at first in his own name, without his wife? By the law of baron and femme, if the wife die first, and her choses be not collected, they will belong to her administrator, to be disposed of as the law directs; but such judgment, the husband does not hold as administrator, accountable for it as assets in his bands; it belongs to him absolutely. It is apparent, then, that this is an exception to the general rule; founded no doubt, upon

the doctrine of the jus accrescendi of joint-tenancy; for the 21 husband and wife are joint-tenants of such judgments;

and when either die, the whole judgment belongs to the other, without liability to account to any person. (2) In some (a) 1 Mod. 179. 3 do 189. 1 Sid. 337.

(1) 2 Kent's Com. 134; Searing v. Searing, 9 Paige, 283.

(2) It is said, however, that the husband and wife, being one person in law, cannot be joint-tenants. Although the husband with regard to such judgment, may after the death of the wife, stand somewhat in the position of a joint-tenant, to the heirs of the co-tenant, still the application of the term is improper. With respect to lands where two other persons would be joint-tenants, they are each seized of the entirety, except perhaps in Ohio, where they take as tenants in common. Sergeant v. Stienberger, 2 Ohio Rep. 305; 2 Kent's Com. 132.

of the states, the doctrine of the jus accrescendi is exploded; and joint-tenants in those states are not, in this respect, different from tenants in common; and every joint judgment stands upon. the same ground. As where two merchants in company, who, by law, are tenants in common, obtain a judgment, and one dies; in such case, the right and duty of collecting the judg ment belong to the survivor; but when collected, he must account with the executor of the deceased partner.

So, where there is a joint judgment in the name of husband and wife, the duty of collecting the judgment survives to him; but as he has no right to hold the avails by reason of the jus accrescendi where this doctrine is rejected, he must, if we preserve entire the law of baron and femme, account for this judgment. If he be administrator to his wife, it will be assets in his hands. to pay the debts of the wife. If not wanted for that purpose, it will, in England, by force of the statute of 29th Car. II. vest in the husband; and he will be entitled to keep it, as he may all her choses, and never account to any person. In some of the states there is no such law as the 29th Car. II. and in these states, I should suppose, that the husband must distribute the avails of such judgment to the legal representatives of the wife, in such manner as the law directs.

A husband submits a claim in right of his wife to arbitration, and the arbitrator awards a sum of money on this claim, to be paid to the husband. By the award the original claim is extinguished, and a new duty arises by force of the award, and that duty is to be performed to the husband. If, then, the husband should die before the money awarded is paid, it will go to his executors, and not to the wife. So, if the law permitted him, which it does not, to sue for a debt due to his wife 22 without joining her, and he obtain judgment in his name alone, the money due on that judgment would go to his executor. (a)

We have seen that the husband has power to release all the choses of the wife during the coverture. Still, if the wife have an annuity for life, and the husband release it by deed to the grantor, the wife shall have it after his death; for an annuity is an incorporeal hereditament for life, which it is out of the power of the husband to release. It is true, such a release will have the effect of discharging the grantor during the life of the husband. (b) (1)

(a) 1 Ver. 396.

() Moor, 522. Co. Lit. 300.

(1) 2 Kent's Com. 134.