feme coverte may have chattels during the coverture: and by the law of Holy Church a wife shall have the moiety of all the goods, which belonged to her husband at the time of his death and by the law of Holy Church she may have good action for that: therefore as it seems to me when the husband assents to the testament made by his wife, it is not inconvenient that the husband shall himself have an action as executor, as well as a stranger might, if he had been made executor by licence of the husband wherefore, &c. Martin [J. C. P.] I assert the contrary and, as it has been said, a feme coverte has no chattels, and cannot ever have [any] during the coverture: and I say that where a testament shall be said [to be] a testament in fact, that is, by cause of chattels which belonged to the testator and if the testator cannot have [possess as owner] anything, I say that the testament is then void and to that which is said that by licence of the husband the wife may make her testament, and the testament is good, I say no for then there will ensue an inconvenience for if the wife by licence of her husband made her executors, by this [appointment of executors] then she must have given to them [the right] to have the administration of certain goods: which goods she [herself] could never have [possess] in her life; which would be inconvenient to give to one anything, which the donor herself could not have [possess]: and that the gift should be good and further to that which is said, that by reason that in the law of Holy Church, a woman shall have the moiety of the goods of her husband, it shall not be [held] contrary to reason that she shall be able to make her executors-I say that that shall not ensue for when an action is brought in our law, it is fitting that it be brought according to our law, so that it may be maintained by our law: [and if it be not brought according to our law], then [it is fitting] that it be quashed. Sic hic: by our law a feme coverte shall have no goods: nor can she have any action to demand goods: nec per consequens : Action against husband as executor of his wife. Will of feme coverte. make an executor: wherefore, &c. And then notwithstanding this, Rolf was awarded to answer further. Quod nota.-Year Book, 4 Hen. 6, 31. See additions and corrections. Debt against Jo. F. as executor of one Jane Billing. The said Jane was the wife of the said Jo. F. now the defendant. Judgment if action [will lie]. Choke. That is not [a good] plea for a feme coverte may make an executor, and in like manner she may make her husband executor, just as well as a stranger, if he will assent. For there are divers things which the husband cannot have after the death of his wife: as a bond, recognizance, et hujusmodi: of which it is quite lawful to the wife to make her executors to receive such [things] to the use, &c.: and when they have received such duties, they shall be charged with them as executors: wherefore although the wife had not goods at the time of her death, still her executors may have by matter ex post facto: therefore, &c. Prisot [C. J. C. P.] It seems [to me] that it is not [a good] plea. For if certain goods were taken out of the possession of the wife before the coverture, now the executors shall have good action of the goods carried away in vitâ testatoris and when they are recovered, they shall be charged with them as executors and such an action the defendant may have as executor of his wife, and not as the husband. ***-Year Book, 39 Hen. 6, 27. In Chancery the case was this. A woman made a feoffment in confidence when she was sole, and then she married, and during the coverture, in her lifetime, being dying, she made her will that her feoffees should convey to her husband, to him and to his heirs for ever, and after her death the husband sued a subpoena. Whether the will is good, or not, that is the question. Tremaile. I contend the will is good, and that the feoffees shall be compelled to make an estate according to the will: for just as the wife may make executors with the assent of her husband, so may she make her will with the assent of her husband that her feoffees shall convey to her husband, and conscience [equity] wills it,** &c. Vavisour. There is a great diversity between your case and this case; for there are divers cases in which the wife, with the assent of her husband, may make executors; as if a bond be made to the wife when she was sole, during the coverture, with the assent of her husband, she may make executors; and in that case the executors shall have action of debt on the bond; because the husband can by no means have an action upon it after the death of his wife, his interest being determined by her death. So of that apparel which in our law is called paraphernalia, she may with the assent of her husband make her will of that and it shall be good; and they are the goods of the husband. But in this case the law is otherwise: for the law will not suffer any thing done by her during the coverture to be good and if she during the coverture make a feoffment of her land, it is void: and this proves well that nothing done by her during the coverture concerning any inheritance is good. For the writ of Cui in vitâ, is Cui ipsà in vitâ contradicere non potuit: and therefore that proves well, that her act and her will is void during the coverture, &c. Jaye ad idem. If this will shall be good, the inheritance of the wife shall not during the coverture be saved from alienation by the husband: for the feoffment prior to the coverture is to this intent that the alienation of the husband shall be ineffectual: and besides if the will shall be effectual, that will be prejudicial to the heir: quod Suliard concessit. The Chancellor [John Morton, Bishop of Ely]. The will cannot be good for she may neither gain nor lose land during the coverture without her husband and inasmuch as she cannot do that at common law, and there is no act done by her which is not void, the law of conscience says also that her will shall be so, and ineffectual, &c. Tremaile. A fine levied by hus Will of feme coverte. Will of feme coverte. band and wife is good. Vavisor. The reason is because she shall be examined openly in Court by the judges, and her intention is proved by matter of record, &c. But the opinion of all these at this time, except Tremaile, was, that the will was void. Year Book, 18 Ed. 4, 11. A feme coverte by the assent and desire of her husband makes a will and devises the moiety of her husband's goods, and made her executor, who proves the will by the assent and desire of the husband, and note that this is good (a). Aliter videtur if the husband prohibits the proof of his wife's will after her death: for then all is void for the husband may countermand it.-5 Ed. 2; Brooke's Abridgement, Devise, 31. (a) See Fitzherbert's Abridgement, Devise, 24. The husband brought an action to recover the goods, traversing the assent. "Mulier etiam, sui juris, testamentum facere potest. Si vero fuerit in potestate viri constituta, nihil sine viri sui authoritate facere potest, etiam in ultimâ voluntate de rebus viri sui. Veruntamen pium esset et marito valde honestum, si rationabilem divisam uxori suæ concessisset, scilicet usque ad tertiam partem rerum suarum, quam viva quidem obtinuisset, si maritum suum supervixisset. Quod plerique mariti facere solent, unde meritò commendabiles efficiuntur."-Glanville, lib. 7, c. 5. "Mulier vero, quæ sui juris extiterit, testamentum facere potest, sicut alia quævis persona, &c. Si autem fuerit sub potestate viri sui constituta, testamenti factionem non habebit absque viri sui voluntate, propter honestatem: tamen receptum est quandoque, quòd testamentum facere posset de rationabili parte, quam habitura esset si virum supervixisset, et maximè de rebus sibi datis et concessis ad ornamentum, quæ sua propria dici poterunt, sicut de robis et jocalibus."—Bracton, lib. 2, c. 26. See Fleta, lib. 2, c. 57. See also Lyndwood's Commentary on Archbishop Strafford's Constitution, "De Testamentis."-" Mirum est quòd nostris diebus mariti nituntur uxores suas à testamenti factione impediri. Habent enim pro se opinionem, quòd uxor nulla bona habet unde testari posset, sed omnia ad maritum pertinent, sic que sine mariti licentiâ uxor non potest condere testamentum: quæ opinio quoad bona propria ipsius mariti forsan posset procedere, &c."-Lyndwood Provinciale, 173. "Licet in rebus dotalibus maritus sit dominus, non tamen sic in rebus paraphernalibus. Nam res paraphernales sunt propriæ ipsius mulieris, etiam stante matrimonio. Et dicuntur bona paraphernalia, quæ uxor habet extra dotem : et quòd de illis bonis maritus non est dominus, sed remanent sub dispositione uxoris." -Lyndwood, 173. Breach of trust. There was a case in Chancery, that a man was enfe- Feme coverte. offed to the use of a woman, who took husband, and they (the husband and wife) sold the land to a stranger for a certain sum of money: and the wife received the cash: and the husband and wife requested him, who was enfeoffed to the use of the wife, to convey the land to the stranger, and he enfeoffed the stranger: and afterwards the husband dies, and the wife brings subpoena against him, who was enfeoffed to her use and he showed the whole matter: and thereupon the plaintiff demurred [and demanded] judgment, &c.: and the case was argued in the Exchequer Chamber before the Chancellor and the Judges of the one and the other Bench. Starkey for the plaintiff. The defence is by no means sufficient, for that which was done by the wife was void: for if she had been seised of the land, and the husband and wife had made a feoffinent, after the death of her husband she would have cui in vita, inasmuch as a feoffment made by the wife during the coverture is void and in like manner here in conscience, this sale made by the husband and wife was wholly the act of the husband and not of the wife, &c., ad quod tota curia concessit, &c. And the Chancellor [George Nevil, Bishop of Exeter] said, that the wife non potest consentire during the coverture; that what took place by dread and coercion could not be called consent : and all that a feme coverte does, it shall be said by dread of her husband: and they [the Court] took no regard to the wife having received the money, because she could have no advantage from it but only the husband, &c. |