(E) THE EFFECT OF MAKING A DEBTOR EXECUTOR. 1. tract is tween indi viduals and VAN VLIEDIN v. WELLES, 6 Johns. N. Y. Rep. 85. Where the deacons and elders of a church, not incorporated, Ifa con made a contract with the plaintiff as their minister, at a stipula-made be ted salary; but subsequently, the church was incorporated; and the minister was a party to the act of incorporation; on being a minister, dismissed, he brought his action against the surviving members, wards the who were parties to the original agreement; but the court held, minister be that the original contract was waived, and the corporation was to be considered as substituted for the defendants. The first tion, the ori contract was extinguished. 2. SMITH V. LUSHER, 6 Cow. N. Y. Rep. 688. and after comes a par ty to an act of incorpora ginal con tract is ex tinguished. ners make If joint partners give the partnership note, to one of the firm If two part bona fide, held, that though the note cannot be enforced at law, their note yet, a court ofequity has the power to afford adequate relief. 3. a to one of the firm, the lat ter has rem edy in equi ty to enforce payment. But al though such of law ed in the na cific be MARVIN V. STONE, May T. 1824, 2 Cowen's N. Y. Rep. 781. Where S. & D., two of H.'s executors, as such, assigned judgment to M., in favor of the testator, against E., who was is the rule also one of the executors; and S. & D. covenanted as executors; where the that there was due and unpaid upon the judgment, to the as estate is sol vent; it is signors, at the time of the assignment $698; it was deci- otherwise ded that the covenant was broken eo instanti that it was made. in case of in solvency; The appointment and acceptance of the trust as executor was and it is to held to be a discharge and extinguishment of the judgment, al- be consider though the will contained these words: "in addition to the above ture of a spe legacies or sums, I will and order that all sums of money, quest of the bonds, or judgments, that may be in the hands of my said exec- debt, not to exec-be paid un utors, that have not been disposed of in and by my aforesaid less there will, shall be equally divided between my two sons, &c., to be raid, &c." Per Cur. Sutherland, J., after stating the rule of law as preference above stated, says: "But there is one qualification as universal eral lega as the rule itself; that where the testator does not leave funds cies. sufficient for the payment of his debts, the debts due from the executor shall not be discharged; because the testator shall not be permitted by a voluntary release, to defraud his creditors. In such a case the debt due from the executor is assets in his are assets to pay the debts, and to have the of the gen The rule of the English law in re hands. It cannot be assets in the hands of the executor, until it ceases to be a debt due to them, and has, either in fact or law been paid to, and received by them. Choses in action, or debts due to the testator upon judgment, statute or specialty are not assets till actual recovery and receipt. The appointment of a debtor as executor is, in the nature of a specified bequest to him of the debt, not to be paid unless there are sufficient assets to pay the debts. But if there are, then to take the preference of the general legacies. This is the doctrine of Toller, p. 274.; for which he cites 2 Bl. Com. 512, and Hargrove on Co. Litt. 264, b. note (1) When, however, from the whole will it appears that such is not the intention of the testator, then the executor shall be trustee to the amount of his debt for the legatee or next of kin; Toller, 274, Carey v. Goodringe, 3 Br. Ch. Cas. 110; Cas. Temp. Talb. 340. But admitting that the judgment is assets, it ceases to be a judgment and in law is money in the hands of the executor. Nothing was due, and it could not be assigned. Judgment for plaintiffs. 4. THOMAS V. THOMPSON, 2 Johns. N. Y. Rep. 471. MARVIN V. The general rule of the English law is adopted, that if a creditor appoint his debtor his executor, or one of his executors, spect to the and he do not renounce the trust, such an appointment shall opextinguish ment of the erate as a release or extinguishment of the debt, upon the debt when ground that such must have been the intention of the testator. is executor. The rule is universal, that when the remedy is suspended, it is destroyed forever. the debtor 5. But the doc trine is re jected in Mass and Conn. STEVENS V. GAYLORD, 11 Mass. Rep. 256. WINSHIP V. BASS, The English rule of the common law, that the appointment, and even nomination of a debtor, an executor, operates as an extinguishment of the debt, "originated," says Daggett, J., in Bacon v. Fairman, “in a principle never adopted in that state, viz. that the executor was entitled to the surplus of the personal estate, after payment of the debts." And Jackson, J., in Stevens v. Gaylord, says, "as soon as the debtor is appointed administrator, (if he acknowledges the debt) he has actually received so much money and is answerable for it. This is the result with respect to an executor; and the same reason applies to an administrator, as the same hand is to receive and pay; and there is no ceremony to be performed in paying the debt, and no mode of doing it, but by considering the money now in the hands of the party in his character of administrator." In that case, and also in the case of Winship v. Bass, the sureties in the bond of an administrator in the one case and of an executor in the other, were here held responsible for the amount which the administrator and executor actually owed the estate at the time of their respective appointments, in the same manner as though it had been actually received. (F) IN RESPECT TO THE WIFE'S INTEREST, &c. 1. PHILLIPS V. MEDBURY, 7 Conn. Rep. 567. in a will marry upon good. Per Daggett, J. At common law, restraints upon marriages A condition in wills are not declared void; but were introduced into chance that a wid ry from the canon law. An unreasonable restraint, therefore, ow shall not upon a young person, imposed by a devisor in terrorem, have forfeiture of been in many cases deemed of no effect; and that the devise a legacy is shall notwithstanding take effect: but this power is never exercised in relation to real estate. Its exercise is limited to personal estate, which is, in the case of legacies subject to the control of chancery. Nor is it applied to a widow. A condition, there. fore, that a widow shall not marry, is unlawful. An annuity during widowhood-a condition to marry or not to marry is good; Scott v. Tyler, 2 Bro. Ch. Rep. 487, 8. 2. WINTERCAST V. SMITH, 1833, 4 Rawle's Penn. Rep. 177. Where a legacy was left to a married woman, whose husband Ifa wife is had deserted her; and from whom she was subsequently diver ced from the bonds of matrimony: she then demanded the legacy, which the executors refused on the ground that the husband VOL. V. 36 fore are the hus band reduc es a legacy to his posses sion, the wife alone was entitled to it, although he had never claimed it; and it was is entitled to uncertain whether he was living. The court held that she was recover it. entitled to recover. So in the case last cited, where the testator directed his lands to be sold; and the proceeds of such sale to be divided among his children; but before the sale, a judicial sale of all the right of one of the children was made by the sheriff; and held, that nothing passed to the purchaser: for the legatee had no interest in the land; his claim was to be raised out of it. So, in the principal case the legacy is a close in action; and the husband is debarred from claiming it by the divorce. money or of the hus is otherwise 3. OSGOOD V. BREED, 12 Mass. Rep. 525. A feme cov A feme covert, with the assent of the husband, may dispose of ert may dis pose of her money, or other chattels by will, because he alone is interested in the question in respect to her authority; and having assented chart-ly by will, with and joined in the disposition, shall be estopped from denying it. the assent But it is otherwise in respect to her lands; these she cannot deband; but it vise, even though the husband assent, because this is not a mode of conveyance which the law regards as sufficient to disinherit herlands. the heir. And the mode of conveyance by deed executed by the husband and wife, to pass the wife's lands, not only in respect to the husband, but in respect to her and her heirs ; is founded on immemorial usage in Massachusetts. But such an usage has not prevailed in respect to wills, so as to give the feme power to dispose of her lands by devise.* in respect to *Mr. Williams in his treatise on the law of executors and administrators thus states the doctrine, which, perhaps, is applicable to this country. Besides this case of a will made by a married woman by virtue of a power, there are other circumstances, under which a will made by her is valid, without the assent of her husband, viz. where personal property is given or settled, or is agreed to be given or settled, to the separate use of the wife. In such a case, it has been established since the case of Fetty place v. Gorges, 1 Ves. jun. 46; 3 Bro. C. C. 8. S. C., that she may dispose of it as a feme sole. to the full extent of her interest although no particular form to do so is prescribed in the instrument by which the settlement or agreement was made. The principle upon which that decision was founded is this; that when once the wife is permitted to take personal property to her separate use as a feme sole, she must so take it with all its privileges and incidents, one of which is the jus disponendi; Peacock v. Monk, 2 Ves. Sen. 191; Rich v. Cockell, 9 Ves. 369; Wagstaff v. Smith, 9 Ves. 520; 2 Roper, on Husband and Wi e. 132. See further on this subject, Mr. Belt's note to Fettyplace v. Gor ges; Hulme v. Tenant, 1 Bro. C. C. 16; Sockett v. Wray, 4 Bro. C. C. 487; Sturgis v. Corp, 13 Ves. 192; Essex v. Atkins, 14 Ves. 542; Heatley v. Thomas, 15 Ves. 596; Dalbiac v. Dalbiac, 16 Ves. 116; Bullpin v. Clarke, 17 Ves. 365; Power v. Baily, 1 Ball. & Beatty, 49; Greatly v. Noble, 3 Madd. 94; Stuart v. Ld. Kirkwall, ibid. 329; Aguilar v. Aguilar, 5 Madd. 418; Howard v. Damiani. 2Jac. & Walk 458; Acton v. White, 1 Sim. & Stu. 429; Braham v. Burchell, 3 Add. 263, (in Sir J. Nicholl's judgment,) and Mr. Fraser's note to Forse & Hembling's case, 4 Co. 4. EVANS V. KINGSBURY, 2 Rand. Va. Rep. 120; UPHAM V. Up- The chat the wife not sion by the she shall ro If the husband dispose not of the chattels real of the wife in tels real of his life time, and die before her, they shall not pass by his will, reduced in nor shall they go to his executor; for, not having altered the to posses property in his life time, they were never transferred from the husband, wife; but after his death, she shall remain in her ancient pos- main in her session. If, however, the husband mortgage the wife's term, ancient pos the equity of redemption will belong to him; aud a term of terms may be disposed of by lease, to commence after his death, if it be done bona fide and for valuable consideration. It is a conveyance in presenti though to commence in futuro, and being not a freehold it will take effect; though the husband may not devise such a term. .session. 5. which the If the hus between his vance his own money for a lot of LIVINGSTON V. LIVINGSTON, 2 Johns. N. Y. Ch. Rep. 139. METHODIST EPISCOPAL CHURCH V. JAQUES, ET AL. ib. 450. In this case the husband and wife agreed by parol, that he and by a should purchase a lot of land in her name and build a house up- greement on it; for which he was to be repaid out of the proceeds of the wife and sales of another lot and house belonging to the wife. Upon her himself ad death, chancery decreed that the house and lot out of husband was to be reimbursed, should be sold for that purpose, land and as both the new house and lot descended to her heirs. And in the latter case, upon similar principles, it was held that if the it; and the husband buy land with the wife's money, and take a deed in his conveyance own name he was but the trustee of the wife; and a purchaser name, chan of such estate with notice of the trust shall also be held to be cery will or trustee of the wife; to be allowed, however, such beneficial im- be repaid provements as he may have made upon the estate. So, builds a house upon is in her der him to out of her other real es tate, at ber decease. So on the other 61. b. And this rule prevails without regard to the circumstance, whether the property he in possession or reversion; Sturgis v. Corp, 13 Ves. 190; Headen v. Ros- lands pur her, 1 M Cl. & Y. 89; 2 Roper, on Husb. and Wife, 184. And when she has such chased in a power over the principal, it extends also to its produce and accretions, e. g. the bis own name, but savings of her pin-money; Gore v. Knight, 2 Vern. 535; Herbert v. Herbert, Prec. with her mo Ch. 44; 1 Eq. Ca, Abr. 66. 63. Nor does it make any difference whether the pro- ney, will perty be given to trustees for the wife's separate use, or, without the intervention make him the trustee of trustees, to the wife herself, for her own separate use and benefit; see the judg- of the wife. ment of Sir John Nicholl, in Braham v. Burchell, 3 Add. 263; for in the latter ease a court of equity would decree the hu-band to stand as a trustee to the sepa rate use of the wife; Tappenden v. Walsh, 1 Phillim. 352. and the authorities thero eited; Rolfe v. Budder, Bunb. 187. See also Parker v. Brooke, 9 Ves. 583; Ibid. 375. |