to disaffirm his consent thus given. The will thus made, by the wife in form, seems to be, in fact, more the act of the husband than of the wife. But such are the decisions of the English courts. The will of a married woman, when presented for probate in the ecclesiastical courts, is treated as a mere nullity and would not even be propounded for probate. But where it is alleged to have been made with the assent of the husband the ecclesiastical courts assume jurisdiction. 5. There are many other exceptions to the testamentary incapacity of married women in the English law. Thus, if the wife be executor, and as such entitled to personal chattels, not yet reduced into possession, she may dispose of the same by will, without the assent of the husband, since he had acquired no vested interest in them. But if the wife had reduced such chattels to which she was entitled as executor, to possession, the right of the husband attaches, and the wife could not dispose of them by will.5 6. So too, if the chattels come to the separate use of the wife, during coverture, or are secured to her separate use, independent of all control of the husband, she may dispose of the same by will during coverture. Lord Thurlow here said, "I have always 'Tucker v. Inman, 4 M. & G. 1049, 1076. Tindal, Ch. J., here defines many of the exceptions to the testamentary disability of married women. 'Tindal, Ch. J., in Tucker v. Inman, supra. 'Tucker v. Inman, supra; Scammel v. Wilkinson, 2 East, 552; 1 Wms. Ex'rs, 48; Lord Thurlow, Chancellor, in Hodsden v. Lloyd, 2 Br. C. C. 534, 543. Fettiplace v. Gorges, 1 Ves. jr. 46. Lord Eldon, in Rich v. Cockell, 9 Ves. 375. Savings out of an allowance made by the husband for the separate maintenance of the wife are, in equity, treated as her separate estate of which she may dispose by will. Brooke v. Brooke, 25 Beav. 342. But savings out of pinmoney, are said to revert to the husband, if not applied to that particular use, but the distinction seems to be without much foundation. Jodrell v. Jodrell, 9 Beav. 45; Howard v. Digby, 2 Cl. & Fin. 634; Wood, V. C., in Barrack v. M'Culloch, 3 Kay & J. 114. And the wife may dispose of the assets or accumulations of property conveyed to trustees for her separate use, whether the same be real or personal estate. 1 Jarman, 34, 35. thought it settled, that from the moment in which a woman takes personal property to her sole and separate use, from the same moment she has the sole and separate right to dispose of it." .... "Upon the cases, I have always taken this ground, that personal property, the moment it can be enjoyed, must be enjoyed with all its incidents." 7. So too, where by any sufficient instrument executed by husband and wife before marriage, the separate control of the wife's personalty is secured to her during the coverture, or she retains a special power to dispose of her estate, real or personal, by will, she may exercise that power during the coverture, independent of any assent on the part of the husband.7 8. The nature of the required consent on the part of the husband, in order to the validity of the wife's will, it may be of some importance further to explain. It is said, that a general assent on his part to his wife making a will is not sufficient. It should be shown that he has consented to the particular will.8 And it is said the husband shall be examined in regard to his consent at the time of the probate. He may therefore revoke his consent at any time before the probate, either before or after the decease of the wife.10 The consent of the husband may be either express or implied; but if once given it cannot be impliedly recalled, it should be done in a formal manner. And if after the decease of the wife the husband assent to the will even by implication, as by expressing gratification at her selection of an executor, or by recommending him to particular places to procure suitable preparations for the burial, he cannot, after he has thereby induced the executor to act under the instrument, be allowed to recall his assent,10 Rich v. Cockell, 9 Ves. 375; Hodsden v. Lloyd, 2 Br. C. C. 534. Henley v. Phillips, 2 Atk. 48. 10 1 Wms. Ex'rs, 48; Anony. 1 Mod. 211; Brook v. Turner, 2 Mod. 170, where the exceptions to the consent of the husband are very fully explained. 9. It is said therefore that the assent on the part of the husband is nothing more than a waiver of his right to be administrator of his wife's goods, whereby, after the payment of her debts, he is allowed to retain the balance himself. It can therefore only give validity to the will in the event of the husband surviving. And as his consent is required to the particular will, it does not pass subsequently acquired property.11 10. By the English law no contract will be sufficient to enable a wife to pass the legal title of her real estate, by an "1 Wms. Ex'rs, 49. See also, Stevens v. Bagwell, 15 Ves. 139, 156; Price v. Parker, 16 Simons, 198. The husband's consent to the wife's disposition of her personal estate, including choses in action, may be given after her death, or by contract, before. Wagner v. Ellis, 7 Barr, 413. But to render a testamentary disposition of her estate by the wife valid, as against the husband's interest, his consent to the particular will must be given; and it is said should be given, at the time the will is proved. George v. Bussing, 15 B. Monr. 558; Cutter v. Butler, 5 Foster, 357. This case contains a most thorough and learned discussion of the law upon this question, by Mr. Justice Bell, the present chief justice of the court, the substance of which is embodied in the following propositions: A married woman, by the assent of her husband, may make a will of real or personal chattels, or choses in action, in which the husband has an interest, or of personal property, of which he is sole owner, and her bequests will be valid. Such a will operates, as to the husband's interest, or property, as a gift from him. The assent of the husband, once given to the wife's will, after her decease, is binding and cannot be revoked. The probate of the will is conclusive, in regard to the capacity of the testator, being a feme covert, to make the will, and of the husband's consent. In Mississippi, where by statute married women have no power to devise their personal estate, it is held they may do so, the same as any other person, by consent of their husbands. Lee v. Bennett, 31 Miss. 119. But in Pennsylvania, it is held, the husband must assent to the particular will, and that a general license to make a will is not sufficient. Kurtz v. Saylor, 20 Penn. St. 205. The will of a feme sole is annulled by her subsequent marriage; and is not revived by the death of the husband, the wife surviving. Garrett v. Dabney, 27 Miss. 335. A married woman, by consent of her husband, may bequeath her choses in action to him. Burton v. Holley, 18 Ala. 408. ordinary will, but it will operate only as an appointment of an use, and the equitable interest only will pass under the instru ment, but the legal title must be obtained from the heir.12 11. And where the husband is civiliter mortuus, as where he is banished for life, by act of parliament,13 or where he is attainted,11 the wife may make her will and dispose of her estate, both real and personal, the same as if the husband were dead. And the same rule holds in regard to the wife of an alien enemy,15 or of a felon convict, transported for life.16 12. The law of the American states, in regard to the separate estate of the wife being exclusively under her control and subject to any disposition on her part, the same as if she were sole, is fast verging toward the rules of the Roman Civil Law. It is held in some states, that the husband has no claim, as husband, upon the personal estate of the wife, after her decease.17 In most of the more important and commercial of the states, the wife's right to dispose of her estate, by will, both real and personal, is recognized to the fullest extent by statute. 13. In Massachusetts, it was settled under former statutes, that a feme covert may dispose of her estate by will, where it was conveyed to trustees for her sole use, whether before or during coverture.18 14. In many of the states, either by general statutory provis 12 Churchill v. Dibbin, 8 Sim. 447, in n.; Dillon v. Grace, 2 Sch. & Lef. 463. We shall have occasion to discuss the right of married women to convey real estate by virtue of a power in another place. See 1 Jarman, Eng. ed. 1861, 33, and notes. 13 Countess of Portland v. Prodgers, 2 Vernon, 104. The court were of opinion "the wife might in all things act as a feme sole, and as if her husband was dead." 14 Newsome v. Bowyer, 3 Peere Wms. 37. 15 Deerly v. Mazarine, 1 Salk. 116.⚫ 16 Re Martin, 2 Roberts. 405. But banishment or transportation for a time will not have this effect. Co. Litt. 133 a; 1 Jarman, ed. 1861, 35, n. 17 Heirs of Holmes v. Adm'rs of Holmes, 27 Vt. 765. 18 Holman v. Perry, 4 Met. 492. ions, including all persons above a certain age, who are compos mentis, which is construed to extend to married women, or by special statutory provisions to that effect, the testamentary capacity of married women is maintained to the fullest extent.19 15. In New York, married women were expressly excepted from the statute conferring general testamentary power. The surrogate therefore had no power under the former statute to permit the will of a married woman to be proved.20 But in this state a married woman might formerly make a valid will, by the written authority of her husband, which was taken away by the Revised Statutes.21 But these restrictions are removed by later statutes. The will of a married woman made as authorized by the law of her domicil will be valid as to her personalty in this state.22 16. There seems to be some difference of construction, in the different states, in regard to testamentary capacity, where the statute is general, without naming married women. In some of the states they are held to be excluded, by way of construction,23 and in others the opposite construction obtains.24 19 The statutes of the following states are believed to confer full testamentary powers, either expressly or by clear implication, with the qualification in some instances that the husband shall not be wholly deprived of all estate by curtesy in the wife's real estate, and in some few cases securing to the husband a certain proportion of the personal estate, unless where the will is made with his assent. New Hampshire, Vermont, Massachusetts, Ohio, Connecticut, New York, and some others. 1 Jarman, Perk. ed. 35. In the following states the testamentary right of married women has been wholly denied or greatly restricted. Virginia, South Carolina, Delaware, Pennsylvania, Missouri, Mississippi, Indiana, Rhode Island, New Jersey, and Kentucky. Ib. But in many of the latter, this disability has been either removed or greatly modified, by later statutes. See also, Marston v. Norton, 5 N. H. 205; Allen v. Little, 6 Ohio, 65; Fisher v. Kimball, 17 Vt. 328. 2 Rev. Stat. 56, sec. 1; id. 60, sec. 21; Moehring v. Thayer, How. App. Cas. 502; s. c. 1 Barb. Ch. 264; Wadhams v. Am. Home Missionary Society, 12 N. Y. App. 415. 2 Rev. Stat. 60, sec. 21. 22 Matter of Stewart, 11 Paige, 398. 24 Allen v. Little, 5 Ohio, 65. |