if they had been laid out in land he would have been, under the construction of the codicils, entitled to the absolute dominion thereof. They further stated, that C. Crumble had in the year 1790, filed a bill for an account of those assets, of which bill, as well as of his own rights under the will, the plaintiff Charles Adair was fully conusant, yet never interfered to prevent Mrs. Shaw from paying over the residuum to C. C. the younger; that she was advised and believed the whole interest therein vested in C. C. under the limitations in the will and codicils, and therefore had acceded to his demand, had settled amicably with him, and obtained a release from him in 1793, which was insisted on as a bar to the plaintiff's claims. After this answer was put in, Francis Shaw died, and in 1801 the cause was revived against his executors, charging that the assets had come to his hands, and had been applied to his use, and praying that his executors should admit assets of their testator sufficient to answer the plaintiff's demands, or that an account thereof might be taken. The executors set out the debts and assets, but insisted that Anne Shaw alone had administered the assets of C. C. the elder, and had paid then over, and inasmuch as Francis Shaw was not joined with his wife in said administration, and never intermeddled therein, they insisted he could be chargeable only as the husband of said Anne, and as liable to her debts; and that no judgment or decree having ever during the coverture been obtained against him for such debt, his assets could not now be made responsible. It was admitted that Mrs. Shaw had not estate sufficient to answer the assets of Charles Crymble the elder, and Charles Crymble the younger had died insolvent. As to the fact, whether Francis Shaw had or had not acted together with his wife, there was evidence on both sides: the instrument conveying the residuum to C. Crymble the 1803. ADAIR V. SHAW. 1803. ADAIR V. SHAW. younger, was executed by Francis Shaw only: the bond taken by the ordinary for due administration was in the name of, and executed by Anne Shaw alone. The Solicitor General, Mr. Saurin, and Mr. Joy for the plaintiffs. The right of the plaintiffs to have the residue of Charles Crymble's personal estate laid out for their benefit pursuant to his will is not now to be controverted, and is not denied by the defendants; but they insist that as against them the plaintiffs have no right to seek relief, the fund having been paid over, by compulsion as it is alledged, and with the knowledge of the plaintiffs to Charles Crimble the younger, and under the impression and belief that he was entitled to it. But as to the compulsion, all the circumstances of the case shew that the bill filed by Charles Crymble was merely in collusion with his mother, who was bound to know that he was not entitled to the dominion over this fund besides, the payment was not made in pursuance of any decree, but under a voluntary compromise; and although the plaintiffs had known of this misapplication (which is not proved) they were not bound to interfere, their interest being only in the event of Charles Crymble dying without male issue: and the release given by Charles Crymble, being a part of the same collusive transaction, cannot avail. The great questions in the case then are, first, whether Francis Shaw, the husband, was not answerable, and whether his representatives are not now answerable in equity for the devastavit of his wife committed during the coverture; and next, in case of the insufficiency of the husband's assets, whether the wife surviving him shall not be obliged to make good the deficiency. It may be admitted that after the coverture ceases, an husband is not answerable either at law or in equity for the debts of his wife contracted before marriage: but though the ecclesiastical law so far recognizes the separate exist. ence of the wife as to grant administration to her, yet, as by our law, the wife has not during the coverture a separate existence or power of acting alone, so soon as the administration is granted, her acts become in law the acts of her husband. In like manner as if the goods of a third person be converted by the wife during coverture, the law does not allow it to be said that they were converted by her. Berry & ux v. Nevis, Cro. Fac 661; 1 Ro. Abr. 548; (a) and the analogy between trover and devastavit is very close. Therefore, although for a devastavit committed before coverture the husband is chargeable only as her personal representative, yet if committed during the coverture, the law considers it as constructively the act of the husband, and the devastavit is suggested as having been committed by him. And although an action of debt suggesting a devastavit, being founded on the original demand, can be maintained only against the person standing in the rela tion to the testator of personal representative, and not against one who has no such privity, and the husband of a wife administratrix being, after the coverture ceases, a stranger to her testator, therefore at law there is no proceeding against him for a devastavit committed during the coverture: this arises merely from the form of the proceeding at law. It does not follow that there is no relief in equity. These positions are true even where the wife was executrix before her marriage; but the argument applies â (a) These cases seem only to shew that the conversion cannot be laid ad usum ipsorum. But the conversion may, like any other tort or trespass, be laid to have been done by the wife if she has in fact committed it. 1803. ADAIR V. SHAW. 1803. ADAIR V. SHAW. fortiori, where the wife's taking administration was with the assent of the husband; which is the present case :—not an administration cast upon the wife, but taken voluntarily and by one not next of kin, and taken under the direction, and at the expense of the husband. But further, the devastavit also was the proper act of Mr. Shaw, as appears not only from the parol evidence, but by the instrument by which it was committed, having been executed by him solely. At all events the act done was with his assent-and if he would be liable on a constructive assent, much more shall he be so here. The case too is much stronger when it is considered that this was only a qualified administration, an administration not warranted by the statute, but allowed ex necessitate: it was not determined until the case of Walker v. Ioolaston, 2 P. Wms. 576, that such an administrator could maintain an action to recover debts: he is on a footing with an administrator durante minori ætate, who holds as a trustee for the infant executor when he shall come of age, and can only sell bona peritura. But however the question might be decided at law as to the liability of the husband in such a case, there can be no doubt upon it here.-Anciently, before this court assumed its present power over testamentary causes, this relief was given in the ecclesiastical court: 1 Ro. Abr. 919; Executor, F. pl. 2, 3: and whatever authority the ecclesiastical court had then, this court has now; and that such relief is given by this court is plain from the cases-1 Eq. Abr. 60, 61, Powell v. Bell; Beynon v. Gollins, 2 Bro. Č. C. 324; Bachelor v. Bean, 2 Vern. 61; Sanderson v. Crouch, 2 Vern. 118; Norton v. Sprigg, 1 Vern. 309. But independent of these authorities, there is sufficient ground to charge both Shaw and his wife in equity as trustees for the parties entitled to the surplus, after paying the debts; and as such having joined in the act of transferring the assets, both are liable: 3 Bro. C. C. 112. Trover might have been maintained against Shaw for the conversion of these securities; and therefore his personal representative is liable in this court for the value of the property converted. Garth v. Cotton, 3 Atk. 751; Hambly v. Trott, Cowp. 371; Dy. 255. b. anon. As to the question whether the wife, having survived her husband, is not bound to make good the deficiency (if any) of his assets; she is liable, not so much for the act done by her, which in contemplation of law is the husband's, as for her folly in delegating to another the power to commit a devastavit. She is clearly liable at law, as to creditors. Mounson v. Bourne, Cro. Car. 519; Daniel v. Horsy, 2 Lev. 145(a). And the reason given there will apply as well to the plaintiff's demands against the fund, viz. "that "it was her folly to take such a husband as would make a 66 devastavit." Mr. Burston, Mr. Macartney, and Mr. Ball for the defendants, Mrs. Shaw and the executors of Mr. Shaw. It does not appear that Mr. Shaw was at all concerned in taking out this administration; he did not join in the bond to the ordinary, and according to the rule of the civil law, the wife had a separate capacity in which she was capable of the office. Then a bill was filed against Shaw and wife to compel a transfer of the securities in which the assets were vested, to Charles Crymble, who insisted that he had a right to the absolute ownership of them, and there is language in the codicils to this will from whence it might (a) Ib. 261. 1803. ADAIR V. SHAW. |