1803. ADAIR v. SHAW. in which it was considered by Lord THURLOW, that where an administration was taken out during the coverture, the wife would not be responsible for waste during the coverture: I have looked into the words attributed to Lord THURLOW in that case: I have looked into the cases mentioned as giving authority to that dictum, but I can find none to warrant it. On the contrary, it seems to me that all the cases clearly lay down, that though the waste during coverture is the act of the husband, yet it is an act for which the wife, after the determination of the coverture, is responsible,(a) because, according to the language of the cases, it was her folly to take a husband that would so misconduct himself :(b) indeed, no action would lie against the representatives of the husband for the debt, because he was not the debtor: the judg (a) Vid. Infra. This point saved by the decree. (b) In Wentw. Off. Ex. c. 17, p. 205, it is said, "There may "perhaps be a difference where a woman made executor taketh "husband after the death of the testator before either proving or "refusing to prove the will, and where she is made executor dur66 ing the coverture; as there is in case of a descent of her land "to the heir of a disseisor;* for when there is upon her, such a "state of election, she, marrying before her resolution or deter"mination, doth upon the matter deliver it into the husband's "hands; not so where it first findeth and falleth upon her in the "state of coverture." And to elucidate the difference, the author adds, "If the husband were indebted to the testator, this making "of the wife executor is as I take it, a release in law, as "well as if she were the debtor, but if after the testator's death, "she do marry such a debtor, it is a devastation." In the same book, 206, and also in Godolph. Orph. Leg. part 2, c. 10. s. 1, it is said, That if administration be taken by the husband in the name of the wife against her consent, she may renounce after his death: that is, as is to be collected from Dyer, 166 b. if she do not intermeddle, the wife, upon whom the right of administration devolved during coverture would seem according to these authorities to be liable for the acts of her husband only in case of administration being taken with her assent given in the first instance, or 1803. ADAIR V. SHAW. ment must be against the assets of the testator, and the devastavit is a mere consequence of that judgment. When I look at the nature of the case of Beynon v. Gollins, I must say that what fell from Lord THURLOW (if indeed he did say what is attributed to him) was delivered without much consideration at the moment: for the great question in that case was, whether the defendant Gollins should be responsible in respect of acts which he had done affecting the real and not the personal estate. The note in Brown is clearly The case of erroneous in many points, and the note in Mr. Dickins's Beynon v. Gol. book(a) is directly contrary, and equally erroneous, according to my recollection of the case.(b) That note is a subsequently by matter in pais, as by her intermeddling; and the principle of liability mentioned in the books (viz. that it was her folly to take a husband who would misconduct himself in respect to the assets) would seem to be applicable only to the case of a wife, on whom the right to the administration devolved before marriage, and when she was in a state to make an election. (a) 2 Dick. 697, under the name of Beynon v. Gollins. (b) When this case was first mentioned in argument at the bar, his lordship stated, from his recollection, the true circumstances of the case to have been these: "Mrs. Beynon was entitled to a large sum charged on the real and personal estate of her father, part "of which, viz. a sum of 800/. was settled on the marriage of Mrs. "Beynon, which 800l. was a debt out of the assets of her father: "the assets were possessed by her husband and her, as administra"trix de bonis non of her father, and were administered by the "husband to every extent except payment of that debt, and then "he became bankrupt. There was a large real as well as personal 66 property, and the husband, together with Gollins, who was the "trustee in Mrs. Beynon's settlement, sold the real estate: and "the wife and her infant son, after the death of the husband, filed "their bill against the purchaser of the real estate to charge it with "this sum of 800%. The bill was dismissed as against all the pur"chasers, and was retained against Gollins, in consequence of his "having been a trustee for this 8007, and having concurred in a sale "which had conveyed the real estate, discharged of this demand. "Then Gollins insisted that the personal estate of the father was lins, as report ed in 2 Bro. and 2 Dick. is erroneous. 1803. ADAIR V SHAW. perfect authority for charging Mrs. Shaw; but I believe no such decision took place as that attributed by Mr. Dickens to Lord THURLOw, and no such dictum was pronounced as that in Brown. That was in reality the case of a debt, and the debt was proved under the commission of bankruptcy, so that it might be considered as recovered, and the question was, whether the wife was discharged by the bankruptcy of the husband; for the action against him was gone, except so far as there was a debt which might be proved under the commission; and having been proved under the commission, the right of action was satisfied; that was the effect of the case, and the present point could not have arisen in it, except by way of argument. Besides, no action at law could have been maintained in that case, as it was the case of a legacy. Lord THURLOW could not have directed an account to be taken against the wife, because, as I apprehend, the bankruptcy of the husband discharged "first answerable for this sum of 8001. and that Mrs. Beynon was "responsible in the first instance; and the question was whether "he could have the benefit of the personal estate, so as to throw "the demand against her: the determination of the court was, "that he was responsible to the son, but not to her; and therefore "the interest of the 800l. was not given to her against Gollins, but "he was made to answer for the principal, so far as it had not "been recovered under the commission as a debt out of the estate "of Beynon, the husband-for there had been proof of the debt 66 by Gollins against the estate of the husband, which had been admitted, and a dividend made on it." His lordship observed, "That decision goes no further than this, that Gollins could not "throw the child on an insolvent fund, but that having concurred in "a sale of part of the estate charged, he was bound to answer it; "the abstract question was not at all before the chancellor. See Co. Lit. 290. b. not. 1, where this case is cited by Mr. Butler. upon a discussion how far purchasers are bound to see the application of the purchase money; the facts, as far as were necessary to be stated in that point of view correspond with the above. the demand: at least it has been so contended; and the debt having been proved against the estate of the husband, it was pro tanto recovered from the husband and could not be demanded against the wife. I therefore think (and the case of Bellew v. Scott, Str. 440, and the cases there cited(a) seem all to shew) that Mrs. Shaw must be held responsible to creditors for waste committed by her husband. 1803. ADAIR V. SHAW. The law has no form of ae the assets of the husband of a feme executrix are charge, able for a de vastavit committed by him during the coverture. The difficulty which would be in the way of a creditor proceeding against the husband is, that he could bring no action tion by which at law by which the assets of the husband would be affected; he could bring no action as for a debt of the husband's, that is to say, the law gives no form of action in that respect. If before the statute, the husband had promised by parol to pay the debt, I apprehend an action would have lain on that, because then a new form of action would be given; the statute now requires the promise to be in writing, but previous to the statute, a mere parol promise would have been sufficient, because there was a sufficient consideration for it; however that is not the nature of the present demand: the demand now made is made by the personal representative, and by the persons who are entitled as cestui que trusts under the will of Charles Crymble; and it is made, with respect to the latter, in the only way that it could be made, in a court of equity, where the only remedy is against the trustees of those assets, a But equity will relieve in such case, on the principle that the pro But it is objected that a court of equity cannot alter the principles which govern in a court of law, and that if person is not chargeable by the common law, he is not chargeable in a court of equity. That is going too far: for that position would put an end to all executions of trust, the husband's and to all proceedings founded upon a breach of trust; bound by a possession matters which are not cognizable at law, but are cognizable trust. (a) See Mr. Nolan's edition perty came into 1803. ADAIR υ. SHAW. in equity. The only thing to be inquired in a court of equity is, whether the property bound by the trust, has come to the hands of persons who were either bound to execute the trust, or to preserve the property for the persons entitled to it; and the whole jurisdiction of courts of equity in the administration of assets is founded on the principle, that it is the duty of the court to enforce the execution of trusts, and that the executor or administrator who has the property in his hands, is bound to apply that property in the payment of debts and legacies, and to apply the surplus according to the will, or, in case of intestacy, according to the statute of distributions. The sole ground on which courts of equity proceed in cases of this kind is the execution of a trust: and if we advert to the cases on the subject, we shall find that trusts are enforced, not only against those persons who rightfully are possessed of the trust property as trustees, but also against all persons who come into possession of the property bound by the trust with notice of the trust; and whoever so comes into possession is by a trust with considered as bound, with respect to that special property, to the execution of the trust. All persons coming into possession of property bound notice of the trust, are chargeable in equity as trustees. If the assets had remained The law has nothing contrary to this in the administration of assets. In the present case, if the property (such as it was, consisting of bonds, &c.) which was handed over to Charles Crymble the younger, had remained in the hands of Francis Shaw at the time of his death, and were now in specie, in the hands of his executor, the plaintiff could bring an action of detinue or trover; but in consequence of the property having been converted in the life-time of Shaw, the mode of action at law is wanting; the law has not provided a form of action by which the right, which the law acknowledges, can be enforced, |