until the contrary do appear; and if after her death he doth consent, he can never afterwards dissent; and if immediately upon the death of the wife, he discourses and deals with the executor whom she hath appointed, as executor, as in recommending to him a painter for escutcheons, a goldsmith for rings, or the like, this is a good assent, and makes it a good will; and though after such assent given, he do upon the sight of the will dislike it, and oppose the probate, or enter a caveat, such disagreement shall not hurt the will: and when there is an express agreement or consent that a wife may make a will, a little proof will be sufficient to make out the continuance of that consent after their death; but it is necessary to prove a disagreement made, in a solemn and formal manner, in express words, and not by implication. Gibs. 461, 462.

But by lord Hardwicke, in the case of Henley and Philips, [53] July 17, 1740. Though a feme covert has power of disposing of a sum of money or any other thing, by a writing purporting to be a will; yet after the wife's death, the proving it in the spiritual court will not give it the authority of a will, but it will still be considered as an instrument only, or an appointment of such sum or other thing in pursuance of the power; and before it is proved in the spiritual court as a testamentary conveyance, the husband ought to be examined there as to his consent; nor till then will it have the effect and operation of a will. 2 Atk. 49. (4)

And when such a will was brought to the prerogative court to be proved, and a prohibition was prayed for the husband upon this suggestion, that the testatrix was a feme covert, and so disabled by the law to make a will, it was granted; because though the husband may by covenant depart from his right, and suffer

(4) Per Sir W. Wynne in Curgenzen v. Watkins, Arches, 21st Nov. 1788, MSS. Cas. 73. The ecclesiastical court has a complete jurisdiction over a legacy given under the will of a married woman, though the court of chancery has a concurrent jurisdiction. Probate of a will was refused to the executor, as being the will of a married woman, and therefore invalid; and administration was committed to her husband, whose interest as such was denied by the executor, but whose marriage in Ireland was held to be proved by circumstantial evidence, though attempted to be impugned under 19 G. 2. c. 13. Ir. as having been celebrated by a popish priest. Steadman v. Powell, 1 Add. Rep. 58. Will of the sovereign] The court has no jurisdiction over the will of a sovereign, under which a direct claim is made on the reigning sovereign through the king's proctor: and application to the court for its process, calling on the latter to see a testamentary paper of king George the Third propounded, was rejected. 1 Add. Rep. 255. Qu. If the will of a deceased sovereign raised a question merely and exclusvely between subject and subject? See id. 263-265. 4 Inst. 335.

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his wife to make a will, yet whether he hath done so or not, shall be determined by the common law. Gibs. 462. (n)

If a woman have a lease, an estate by extent, the next avoidance of a church, or other chattel real; these are not devested out of her into her husband by marriage, but in case she overlive him, they continue to her as before, no alienation or alteration having been made by the husband, who had power to dispose of them by gift in his lifetime, though not by his will: yet such a woman in her husband's lifetime cannot of or for these things, without her husband's assent, make an executor or will; but she dying before him, they would by the operation of law accrue to him. Went. 198. Law of Test. 33.

Another kind of goods, or rather interest, a woman may have, to wit, debts or things in action, which, as the former, are not devested out of her by marriage into her husband, nor yet can she thereof make an executor without her husband's assent, although they be one degree farther from the husband than the said chattels real; for that though the husband do overlive the wife, he shall not be intitled to them, as to the former. But if the wife makes him executor of these, as she may; or if after her death, he takes out administration of her goods, then he is thereby intitled to them. Went. 199. Law of Test. 33, 34.

But it is said, if a woman hath pin-money or a separate maintenance settled on her, and she by management or good housewifery saves money out of it, she may dispose of such money so saved by her, or of any jewels bought with it, by writing in nature of a will, if she die before her husband, and shall have it herself if she survive him, and the same shall not be liable to the husband's debts. Swin. a. 95. Viner, Baron and Feme, R. a. 16. (0)

And although a feme covert is so entirely under the power of her husband, that she cannot make what in propriety of speech is a will, yet she may make what is called an appointment. And the usual way is, for the intended husband to enter into a bond before marriage in a penal sum, conditioned to permit his wife to make a will, and to dispose of money or legacies to such a value, and to pay what she shall appoint, not exceeding such a

(n) Vid. infra, Jenkin v. Whitehouse.

(o) [Prec. Chanc. 44.] And in Fettiplace v. Gorges, 1 Ves. jun. 46. [3 Bro. C. C. 8.] Ld. Thurlow C. held that a wife having personal property secured to her sole and separate use, took it with all the incidents of property, and might therefore dispose of it and its produce by will, without the consent of her husband. [S. P. Rich v. Cockell, E. 1804, 9 Ves. 375. So if it were left during her coverture to her sole and separate use. Tappenden v. Walsh, 1 Ph. R. 352.; and other cases, id. 353. So if a power was given to her in form of a bond. Moss v. Brander, 1 Phill. Rep. 254.

value; and in such case, if after the marriage, and during the coverture, she makes any writing purporting her will, and disposes legacies to the value agreed, though in strictness of law she cannot make a will without her husband; yet this is a good appointment, and the husband is bound by his bond to perform what is appointed. Swin. a. 94. 1 Vern. 244. (5)

And in 1 Mod. 211. it is said, that the husband may bind himself by covenant or bond, to permit his wife by will to dispose of legacies, and this will be such an appointment as the husband will be bound to perform (p); yet it doth not operate as a will, neither ought it to be proved in the spiritual court; for the property passeth from him to her legatee, and it is his gift: And therefore if the legatee dieth before the wife, such legacy is not lapsed; for this in strictness is only the execution of a trust, and the executor or administrator of such legatee shall be intitled.

But in the case of Jenkin v. Whitehouse, M. 31 G. 2. by lord Mansfield Ch. J. In a cause of Ross v. Ewer, in chancery, July 5. 1744 [3 Atk. 160. 356.], there was a power to a feme covert to appoint by will. And the lord chancellor held clearly, though such will operates as an appointment, that it must be [55] proved in the spiritual court; and he would not proceed, till the will was so proved. He said, it was not material for him in that case to consider of the precise form in which it was to be proved, whether by a strict probate, or by granting administration with the appointment in nature of a will annexed; and therefore that point was not entered into: but the fact, that the paper was her will, in case she had power to make one, must be established by the ecclesiastical court; for such an appointment is in the nature of a will, and attended with all the consequences of a will. And as to the point, that money disposed under the execation of a power by such a will should not lapse; this was fully considered, and contradicted, in the cause of The Duke of Marlborough v. The Earl of Carlisle and others, Nov. 26. 1750. The cases that have been cited in this cause shew, that admin

(5) A feme covert was executrix of her son, who also devised a bond "to her sole and separate use." Per. Cur. Clearly she is not only executrix, but the bond is devised to her sole and separate use, which, in a court of equity, vests the interest in her as much as if the son had vested it in trustees for her separate use; for equity has frequently decreed a husband to stand as trustee for the separate use of his wife. Lady Suffolk's case, who married Serj. Maynard; Sir Jos. Hern's wife; Seymour v. Dilkes, Nov..17. 1718; Rolfe v. Budder, Bunb. Rep. 187.; and all the cases shew that the personal property, when it can be enjoyed separately, must be so enjoyed with all its incidents, and the jus disponendi is one of them. Fettiplace v. Gorges, 3 Bro. C. C. 10. 1 Ves. jun. 46.

(p) Marriot v. Kingsman, Cro. Car. 219.

[Will of

feme covert executrix.]

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istration may be granted, with the appointment annexed; which proves it to be testamentary: For nothing can be annexed to an administration, but a testamentary disposition; which is proved and established by the ecclesiastical court in that form. (q) But if the question be, whether the wife had a power to make an appointment in the nature of a will, and thereby to deprive the husband of any benefit, which by law would devolve upon him in consequence of her death; that is a question proper to be considered at law: and if she had no such power, this court will grant a prohibition. 1 Burr. Rep. 431.

If in the case where a feme covert cannot make a testament without the husband's licence, the husband grants a licence to the wife to make a testament of a certain portion of his goods, and the wife so licensed doth make one testament, and afterwards another, and perhaps a third or fourth; the licence shall be understood of the last testament, and not of the first. Law of Test. 37.

But if a feme covert is executrix to some other person, and in that right hath divers goods and chattels; these are not devested out of her, because she hath them not merely to her own use, but as representing the person of another: and therefore in this case (Swinburne says) the wife may, for the continuation of the executorship, make an executor, and consequently a testament, without the consent or assent of her husband. Swin. 89. Law of Test. 34. (1)

But this rule, that a feme covert executrix may make her will of those goods whereof she is executrix, is restrained in two

cases:

The first is, where she doth not make an executor, but bequeaths the goods whereof she is executrix, by devise or legacy; in this case the will is void, because an executor may not dispose of the goods of the testator otherwise than to the use of

(q) That the will of a feme covert cannot be given in evidence till it has been proved in the ecclesiastical court, see also Stone v. Forsyth, 2 Doug. Rep. 707., where lord Mansfield says, if the ecclesiastical court will not grant probate, the proper course is to appeal to the delegates. Mr. Douglas, in note [† 150] ib. observes, that the regular course in cases like this, is for the spiritual court not to give probate of the will, but administration with the will as a testamentary paper annexed. [Probate per testes of a will made by a feme covert under a power is sufficient proof, without other proof; because as to that purpose the husband has made her a feme sole, and no prohibition will lie. Balch v. Wilson, Pre. Ch. 84.]

(r) See this doctrine agreed by Ld. Thurlow C. in Hodson v. Lloyd, 2 Bro. C. C. 543. et esq. But if an executrix use the goods of a testator as her own, and afterwards marry, and then treat them as the goods of her husband, she will not be allowed to object to their being taken in execution for her husband's debts. Quick v. Sir Wm. Staines, 1 Bos. & Pul. 293.

the testator, to the payment of his debts and performance of his will, and therefore may not give or devise the same by legacy; for that were to dispose of the testator's goods as if they were the proper goods of the executor, and to convert the same to the private use of the legatee and not the use of the testator. But when an executor doth only make another executor, the second executor doth stand chargeable and accountable for the distribution of the first testator's goods to the use of the same testator as did the former executor, and is not by the laws of the land reputed for the executor of the executor, but of the former testator, and so is not a legatee. Law of Test. 35, 36.

Swin. 90.

The second is, where she is not only executrix, but legatee also, and hath accepted of the thing bequeathed not as executrix, but as legatee; and in this case the will of the feme covert is also void. For she taking the thing bequeathed not as executrix, but as legatee, doth thereby make it her own proper goods, and consequently her husband's; and therefore cannot be given from him, without his licence or consent. If it doth not appear whether the wife took the thing bequeathed as executrix or legatee; it shall be presumed she took it as executrix. Swin. 90. Law of Test. 36.

And although a feme covert being executrix may make her testament, and appoint an executor of those goods which she hath as executrix, and not as legatee, without her husband's assent; yet the profit and fruit which arise out of those goods which she hath as executrix during the marriage, as calves, [57] lambs, and such like profit of kine, sheep, and cattle, do belong to the husband, and not to herself as executrix; and therefore she cannot make her testament of such fruits and profit, without her husband's approbation. Swin. 90. Law of Test. 36. H. 4 G. 2. King and Bettesworth. Mandamus to grant administration to John Cullom, or Joan his wife. Return; that by articles before marriage it was agreed, that the wife should have power to make a will, and dispose of her leasehold estate; that pursuant to this power, she made a will, and her mother executrix, who has duly proved the same. To this return it was

objected, that she might have things in action not covered by the deed, and the husband was in all events intitled to an administration to them. On the other hand, it was insisted, that with the consent of the husband she might make a will; and here is his consent by being party to the deed. But by the court; A general consent to make a will doth not seem sufficient, but there should be a consent to that particular will: besides, this is going beyond her power, which did not extend to the making an executor. This is rather an appointment, which in equity will controul the administration as to the leasehold estate, than a will: And as there may be other effects not covered by the deed,