The Orphans Legacy, Part 2 · Chapter 10
CHAP. X. Of a Woman under Coverture made Executrix, or making Executors.
1. Whether the Husband may fix an Executrixſhip on his Wife without or againſt her conſent?
2. Whether ſhe may aſſume or accept the Executrixſhip without or againſt his conſent?
3. The difference between the Common and the Canon, or Spiritual Law in this point.
4. How the Wife may be ſaid to be an Executrix without her Husbands conſent.
5. In what caſe a Wife may make an Executor without her Huſbands conſent.
6. In what caſes ſhe may make her own Husband, or any other her Executor.
1. IF the Husband of a Woman appointed Executrix in a Will, would have his Wife to take upon her the Execution of the Will, to which ſhe will not aſſent, but refuſe the Executrixſhip when her Husband would have her to take the Execution thereof: In this Caſe the Executrixſhip is not to be faſtned on her againſt her will; aPanor. in c. Jo. de Teſt. extr. nu. 3. & Olden. de Execut. ult. vol. tit. 7. in fine. & alii.but Adminiſtration is to be granted to the next of Kin, as in caſe of Inteſtation. But if the Husband, though the Will be not Proved, doth Adminiſter as in the Wifes Right, though againſt her mind and will, ſhe will hereby be ſo bound and concluded, as that during his life ſhe may not decline or avoid the Executrixſhip: bOffic. Exec. c. 17.But not ſo after his death, for then ſhe may in this caſe refuſe.c1 Eliz. Dyer, 166. B. where is cited 3 H. Rot. 112.
2. As a Wife named or appointed Executrix in a Will may not be compelled unto the Execution thereof, without her own and her Husbands conſent: ſo neither ſhall ſhe aſſume or accept ſuch Executrixſhip without her Husbands conſent and approbation, becauſe it is in his power to oppoſe and hinder it.†Offic. Exec. ubi ſupra.
3. That the Wife appointed Executrix in a Will, may neither aſſume nor be compelled to the Executrixſhip without her Husbands conſent, is true Doctrine only at the Common Law; dBryan Chief Juſt. 2 H. 7. 15.for by the Canon or Spiritual Law, which doth not, like our Common Law, diſtinguiſh between Women married and unmarried in ſuch matters, it is otherwiſe. e2 H. 7. 15. b.For there the Wife may ſue or be ſued apart and alone without her Husband; and therefore in that Court the Husbands diſaſſent, denial, or refuſal would be of ſmall force to hinder the committing of the Executrixſhip to the Wife, ſhe not refuſing. But by the Law of England the Wife is ſo under the Husbands power, f33 H. 6. 31. 43. 39 Ed. 3. 1.that ſhe is not capable of contradicting in pleading or doing other Acts; inſomuch that ſhe could not take Lands nor Goods by Gift or Conveyance without her Husbands Aſſent. g27 H. 8. 24.And therefore the Husband may expreſs his diſaſſent as to his Wifes Proving the Will wherein ſhe is made Executrix.
4. If a Woman Sole be made an Executrix, and ſhe marry before ſhe intermeddle with the Eſtate, and then her Husband doth Adminiſter; this is ſuch an acceptance as will bind her, and ſhe can never afterwards refuſe it. hBrook. tit. Execut. 147.Likewiſe, if once the Wife Adminiſter, though without the Husbands privity and aſſent, and though no Will Proved; This will go far to conclude them both for ever after from pleading, That ſhe neither was Executrix, nor Adminiſtred as Executrix. The Law is the ſame, if once the Will be Proved, and the Execution thereof committed to the Wife, though againſt her Husbands mind and conſent.
5. A Wife or a Woman Covert, being Executrix to another, and in that Right having Goods moveable, may thereof make her Teſtament, and without her Husbands conſent; iFitzh. Abrid. tit. Execut. nu. 20. & Brook. eod. tit. nu. 11. & Perk. tit. Deviſe, cap. 8. fol. 97.becauſe ſhe hath not ſuch Goods meerly to her own uſe, but as repreſenting the perſon of another; and therefore ſuch Goods as ſhe ſo hath as Executrix, are not her Husbands, but are to be diſpoſed of for the uſe of the Teſtator. And not only ſo, but of theſe Goods ſhe may make her Husband her Executor, kBrook. ibid. & Apolog. for proceed. in Courts Eccleſiaſtical, part. 1. c. 3. pag. 22. in fin.or any other perſon without his Licence; unleſs inſtead of making an Executor thereof, ſhe bequeath the Goods whereof ſhe is Executrix, by Deviſe or Legacy; lPlowd. in caſ. inter Bransby & Grantham. fol. 525.for even with her Husbands conſent ſhe cannot bequeath ſuch Goods; or unleſs ſhe is not only Executrix but Legatary alſo, and hath accepted of the Things bequeathed not as Executrix but as Legatary, for thereby they are inveſted in her Husband, mTract. de Rep. Angl. lib. 3. cap. 6.for which reaſon they cannot be given from him without his Licence and Conſent. nl. id quod noſtrum. ff. de Reg. jur.Thus alſo for the continuation of this Executorſhip, the Wife may make her Executors and her Will as touching ſuch Goods, Debts, or Credits, without her Husbands Conſent, to whom no benefit could redound by the Adminiſtration of theſe Goods which his Wife hath in right of another; for thoſe Goods would go and be to the next of Kin to A woman Covert Executrix may conſent to a Legacy. If there be two Executors, whereof one a Legatee, he may conſent to his own Legacy, and take it without the others aſſent. 11 H. 4. 8…. Roll. Abr. tit. Deviſe.the Teſtator, taking Adminiſtration de bonis non Adminiſtratis, in caſe the Wife ſhould die inteſtate. oPlowd. in Caſ. inter Greisbrook & Fox.And therefore her Husband not being capable of advantage by ſuch Goods, cannot be thereby prejudiced. And ſo it is but Reaſon that the Wife ſhould appoint her Executors of ſuch Goods, and continue the Executorſhip thereof according to the mind of the firſt Teſtator, without the Licence or neceſſary conſent of her Husband; which Conſent indeed as touching all Goods and Chattels which the Wife had before Marriage, or ſince in her own Right, muſt be firſt had and obtained; otherwiſe her appointing of Executors as to them will be invalid and of no force.
6. A Woman (by the Common Law) may make her Husband Executor of ſuch things whereof ſhe was Executrix to another before, or of a duty due unto her before Coverture, or of a Rent being behind upon a Leaſe made unto her for term of life, or of other Leaſe, or of any thing whereof the poſſeſſion muſt be obtained by Action: but ſhe cannot make him Executor of that which ſhe hath in her poſſeſſion as in her own Right.pT. 12 H. 7. fol. 22. Apol. of proceed. in Courts Eccleſiaſtical, cap. 3. par. 1. pag. 22.