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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. Foy 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 al• though 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 équity 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 huisband 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 existence 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. Jac 661; 1 Ro. Abr. 348 ; (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 relation 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 å
(a) These cases seem only to shew that the conversion cannot
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 assentand 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. Woolaston,
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 upoa 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 thc 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. C. 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; Danielv. 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
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 ca. pable 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.
without any imputation of fraud have been conceived that the testator meant to give an estate tail in the residuum ; upon the sixth codicil particularly, it is not clear that the testator did not intend by the use of the words, “his issue in “ tail male," to confine the generality of the preceding words, referring to the uses expressed in the will. But without insisting on this construction, it appears that the plaintiffs knew of this will; they were aware of their right under the will: the claim by C. Crymble was openly made, and yet they never interfered to prevent the transfer; the suit was then compromised, and the securities handed over, and not one shilling converted to the use of Mr. Shaw; there is not the slightest evidence of fraud on his part. It is a principle of law that the husband shall not be answerable for his wife's debt, unless judgment has been had dur. ing the coverture ; and the same principle seems to reach debts of the wise contracted in a separate capacity, though during the coverture ; now the law recognizes the separate capacity of a feme executrix; she may administer without the assent of her husband, she may receive the assets into her own custody, and her receipt for a debt paid bona fide shall be binding, 1 Com. Dig. Administration, D. : there fore in such a case no remedy will be against the husband at law, unless pursued to judgment during the coverture : 1 Lutw. 670; Bacon v. Berkley; and if this be true in case of a debt, a fortiori, the husband shall not be charged at law with a devastavit committed by the wife, for that is a mere tort. Powell, J. S. C, P, 673,
It is not sufficient even to get a devastavit returned ; there must be judgment against the husband and wịfe during the coverture, to charge the husband afterwards; 1 Ro. Aúr. Baron & Feme, G. pl. 5, Then equity will not carry relief further than the law, except in some particular instances. In Heard v. Stanford, Cus. Temp. Tulb. 173, where it was sought to charge the husband (who had got a considerable fortune with his wife)