NECESSARIES WHEN HUSBAND AND WIFE LIVE When husband forgives her. Whether when the husband is discharged she becomes liable. If, however, he be weak enough to forgive her, he becomes again liable (w). How far, when the husband is discharged by the wife's delinquency, she herself can contract liability in her own person is a point as to which light may be had by consulting the learned determination of Lord Kenyon in the great case of Marshall v. Ratton (x). Mr. Justice Buller appears to have been of opinion that as soon as the husband was released, the wife acquired a capacity of binding herself (y); which seems a reasonable inference. (w) Harris v. Morris, 4 Esp. 41; see also Norton v. Fazan, 1 Bos. & Pul, 226. (x) 8 Term. Rep. 547. (y) Cox v. Kitchen, 1 Bos. & Pul. 339. CHAPTER V. RIGHTS ARISING FROM THE DISSOLUTION THE dissolution of the marriage may be by the death of the husband; or by the death of the wife; or by parliamentary divorce. Each, therefore, of these contingencies we will consider in their order. And, first, supposing the dissolution of the marriage to be occasioned by the death of the husband, and assuming the operation of general rules (in other words, assuming that the husband dies intestate, leaving the distribution of his effects to the government of the law), the widow, as lawful relict of the deceased, is usually, unless she renounce, appointed his sole administratrix. But the Ordinary may grant the administration either to her alone, or to the next of kin, or to both together, at his discretion (a). When the husband dies intestate, leaving a widow and child, or children, or representatives by direct descent (a) Salk. 36; 11 Vin. Abr. 92; Stra. 552; Lovelas. 3. L Widow generally selected to admi nister. Her distributive share when there is a child. RELICT'S When there is no child.. When there are no next of kin. of such child or children, his widow, by the Statute of Distributions, is entitled to one-third of his personal estate (b). The phrase, "Thirds of personal estate at common law," though constantly occurring in legal arguments, judgments, pleadings, deeds, and formal documents, seems void of meaning. There is now no distribution of intestates' personal estates by the common law; and the phrase is still more incorrect if used to express the interest which the widow takes under the statute (c). When the husband dies intestate, leaving a widow only, such widow is, by the statute, entitled to a moiety or half of his personal estate. When the husband dies intestate, leaving a widow, but (as in the case of a bastard) no next of kin, the widow is not entitled to the whole of his personal estate; but one moiety or half belongs to her, and the other moiety or half goes to the crown (d). (b) 22 & 23 Chas. 2, stat. 2, c. 10, s. 6; 2 Black. Com. 515, 516. (c) Gurley v. Gurley, 8 Cla. & Fin. 741. In this case Lord Cottenham asked "What is the correct meaning of the expression, Thirds of personal estate at common law ?" To which Mr. Pemberton Leigh answered, "It has no meaning. And it does not correctly express the interest the widow would take under the Statute of Distributions." (d) Cave v. Roberts, 8 Sim. 214. On the death of the husband, his widow may claim paraphernalia; that is to say, such articles of personal apparel, personal ornament, and personal convenience, suitable to her rank and degree, as she continued to use during the marriage. These she may retain against all the world, except creditors when there is a deficiency of assets (a). And, even then, her necessary clothing is protected; for, in the words of an ancient judicial resolution, "She ought not to be naked, or exposed to shame and cold" (b). (a) 2 Black. Com. 436; Tipping v. Tipping, 1 P. Wms. 730. (b) 1 Rolle, 911, L. 55. If the husband deliver cloth to his wife for her apparel, and die before it be made up, she shall have the cloth. 1 Rolle, 911, L. 35; Com. Dig. PARAPHER- Articles of ap parel, and personal ornament and convenience. Claim to neces sary clothing good even against creditors. Neither can the husband by his will bequeath paraphernalia; though it appears he has the power, (if unkindly inclined to exert it), to sell them, or give them away (c). They are therefore not to be considered as belonging to the wife during the marriage for her separate use (d). For her right of property in them does not arise till she becomes a widow; but vests in her immediately on the death of her husband (e). As to personal ornaments, the husband's possession of them makes no difference, provided the wife wore them at intervals. And it is enough that she so used them (ƒ) on birthdays and public occasions (g). Nor is the question of value in this respect material, so long as the articles are suitable to her degree (h). But the widow cannot claim, as paraphernal, articles which are in fact family heir-looms (i). (c) 2 Black. Com. 436; Noy's Max. c. 49. (d) Graham v. Londonderry, 3 Atk. 393. (e) Cro. Car. 344; Com. Dig. Bar. and Fem., Paraph. (f) Northey v. Northey, 2 Atk. 77. (g) Graham v. Londonderry, 3 Atk. 393. (h) Cro. Car. 343; 1 Rolle, 911, 1. 45; Com. Dig. Bar. and Fem. Paraph.; Toller's Executors, 3rd ed. p. 230, where he says, "The value makes no difference in the Court of Chancery." If so, the articles need not be suitable to the widow's degree. See 2 Atk. 77. (i) Calmady v. Calmady, 11 Vin. Abr. 181, 21; 2 Atk. 124. In this case, a husband having a crocheat of diamonds which had belonged to his first wife, devised it to his eldest son, directing also that it should go in succession to the heir of his family as an heir-loom. He afterwards married a second time, and converted the crocheat into a necklace, adding to it several new diamonds, the value of which was greater than the original value of the crocheat. Upon his death, the eldest son claimed the article by force of the will. But the second wife insisted on retaining it as part of her paraphernalia. The Lord Chancellor Macclesfield doubted at first whether turning the crocheat into a necklace, adding new diamonds to it, and permitting the wife to wear it, did not amount to a revocation of the bequest to the heir. But he afterwards ordered the Master to examine and separate the old from the new diamonds, and decreed the former only to the heir, leaving the widow to enjoy the new diamonds. |