WIDOW IS BOUND TO BURY HER DECEASED HUSBAND. WHETHER THE persona conjuncta with him, and her interment being a personal benefit to him, the Court said—" If this be so, we do not see why the contract for the burial of the husband should not be the same as a contract by the widow for her own personal benefit. Her coverture is at an end; and so she may contract, and her infancy is no defence if the contract be for her personal benefit.” REVIVAL OF WIFE'S LIABILI TIES. SECTION II. REVIVAL OF THE WIFE'S LIABILITY TO PERSONAL EXECUTION. DURING marriage, the wife, as we have already seen, was protected by her coverture from personal execution in respect of debts contracted by her dum sola (c); unless, indeed, it appeared that she had separate property. When, however, her coverture is put an end to by the death of her husband, she is again subject to a demand and to personal execution for those debts which, having been contracted by her before marriage, have remained undischarged and unsatisfied during the coverture. Thus, in Woodman v. Chapman (d), where an action for debt was brought against a widow, it appeared that the debt had been contracted by her before her marriage with her late husband. The point was taken that his representatives alone were liable for it. But Lord Ellenborough held that the debt survived against the widow upon her husband's death. This rule appears hard, especially in cases where the wife, by the very fact of matrimony, has surrendered all her property to her husband, whose representatives, it thus appears, cannot be charged for her debts. (c) See supra, p. 40. (d) 1 Camp. 189. Causes of action survive against the wife, which accrued during the coverture in respect of her real estate; or for any personal wrongs done by her when sole (e). If an action had been brought against the husband alone for a debt of the wife incurred by her dum sola, and he died before judgment, the action would abate; and it would be necessary for the plaintiff to begin again. But if the action had been brought against husband and wife together, the same consequence would not arise upon her husband's death before judgment. For in such a case I understand that by the practice of the common-law courts the plaintiff, by entering upon the roll a suggestion of the husband's death, might prosecute the suit against the surviving wife to judgment (f). If this be so, it furnishes a reason for joining the wife as a defendant in all actions brought against the husband in respect of debts contracted by his wife dum sola. (e) See note by Lord Campbell to the above case of Woodman v. Chap man. (f) See remarks of Tindal, C. J., in Gaters v. Madeley, 12 Mee. & Wel. 855. REVIVAL OF WIFE'S LIABILI TIES. CHAPTER VII. RIGHTS ARISING FROM THE DISSOLUTION HUSBAND'S RIGHT OF ADMINISTRATION. SECTION I. HUSBAND'S RIGHT OF ADMINISTRATION. On the death of the wife, the law compels the Spiritual Judge (in whom this jurisdiction resides) to grant administration of her estate to her husband, and to him alone, unless he renounce or decline it. It would appear at one time to have been doubted whether the Ordinary might not refuse administration to the husband, and elect to grant it to the wife's next of kin (a). But Mr. Justice Williams, in his valuable work on Executors and Administrators, lays down the law as follows (b):-"This right (the husband's right of administration to the wife) belongs to the husband exclusively of all other persons (c); and the Ordinary has no power or election to grant it to any other (d). The foundation of this claim has been variously stated: by some it is said to (a) Toller's Ex. & Adm., 3rd Ed., p. 83. (b) Vol. i., page 315. arises who will then be entitled to letters of administration de bonis non of her estate. (c) Humphrey v. Bullen, 1 Atk. 459. (d) Sir George Sand's case, 3 Salk. 22. be derived from the statute 31 Edw. 3, on the ground of the husband's being 'the next and most lawful friend' of his wife (e); while there are other authorities, which insist that the husband is entitled at common law, jure mariti, and independently of the statutes (f). But the right, however founded, is now unquestionable, and is expressly confirmed by the statute 29 Car. 2, c. 3, which enacts, that the Statute of Distribution (22 & 23 Car. 2, c. 10,) shall not extend to the estates of femes covert, that shall die intestate, but that their husbands may demand and have administration of their rights, credits, and other personal estates, and recover and enjoy the same as they might have done before the making of the said Act.'' This right of administration to the wife is not an ecclesiastical, but a civil right of the husband, though it is a right to be administered in the Ecclesiastical Court (g). It would appear that it is only where there are choses in action of the wife unrecovered at her death, that the husband can gain any object by taking out administration to her. For we have seen that all her other personal property passes to the husband by virtue of the marriage: —that is, jure mariti. Property received by the husband in this his representative character, as administrator of his wife, is liable to her debts; whereas property acquired by him jure mariti is his absolutely. This distinction, although artificial, is intelligible; and seems to follow as a necessary consequence from general rules. As the wife's administrator, (e) 3 Salk. 22; Elliott v. Gurr, 2 Phillim. 19. (f) Com. Dig. Administrator, (B. 6); Watt v. Watt, 3 Ves. 247. Others have supposed that the husband is entitled, as next of kin to the wife; Fortre v. Fortre, 1 Show. 351; Rex (g) Williams on Exors., ubi supra. HUSBAND'S RIGHT OF AD- HUSBAND'S RIGHT OF AD MINISTRATION. assets. therefore, the husband is answerable to the amount of her And a creditor in respect of a debt due from her before marriage (for during the coverture she cannot have contracted any obligation) may in such a case and to this extent recover from the husband. Thus, in Heard v. Stanford (h), the defendant's wife had dum sola given the plaintiff a promissory note for 50%. She afterwards married, bringing her husband a fortune of 7007.; part of which he received during the coverture, and part consisted of a chose in action recovered by him after her death, as her administrator. Lord Chancellor Talbot, upon a bill filed against the husband by the promisee of the note, decreed an account of what he had received since his wife's death, as her administrator, but declared that he should be liable for so much only. HUSBAND'S RIGHT TO ARREARS OF RENT. SECTION II. HUSBAND'S RIGHT TO ARREARS OF RENT OF WIFE'S BEFORE the 32 Hen. 8, c. 37, if a husband did not, during the coverture, recover arrears of rent which had become due to his wife before the marriage, he could not after her death compel payment of them. This was an inconvenience; and was remedied by this Act, which gives the husband and his executors and administrators an action of debt for such arrears, with liberty to distrain for the same in like manner and form as if his wife were still living (i). (h) Ca. Temp. Talb. 173; 3 P. Wms. 409. (i) Co. Litt. 351, b.; Com. Dig., 4th Ed., tit. "Bar. and Fem.," p. 84; 1 Rop. 206. |