Howard v. Menifee

By the court, Sebastian J. The question, whether the bill of exceptions, according to the established rules, can be judicially noticed, is easily determined by the cases heretofore decided in this court. It is not necessary the paper should have been filed by the clerk to authenticate it as part of the record. That is sufficiently shown by the signature of the judge, and the filing of the exceptions is stated upon the record. It was made a part of the record, both by the order of the court and the agreement of thp parties, and this sastifies the rule adopted’ in Lenox vs. Pike, 2 Ark. Rep. 14, according to its intention. By the common law, the husband becomes entitled absolutely to all the wife’s personal estate, by marriage, and acquired the absolute dominion and right of disposing of it. This was the consequence of the destruction of the separate legal existence of the wife by marriage, by which her rights, capacity, and will was henceforth represented by the husband. His right, was the same to any acquisitions of the wife after marriage, which enured to his benefit, and to which his assent was presumed. Unquestionably therefore, the property sued for must be considered at law as belonging to the husband in his lifetime. There is however a qualification of the power of the husband over such property of his wife as is denominated her paraphernalia. This was something over and in addition to dower at common law, or the widow’s “reasonable part” of the personal estate of the husband, and consisted of such jewels, articles of luxury, or of personal ornament and decoration as were used by the wife and suitable to her condition. Though the husband could dispose of them in his lifetime, he could not alienate them at his death. 1 Peere Williams 730. The right of the widow to that portion of the estate was absolute and exclusive, except as to creditors. She took it as against the heir or legatee, and in the order of paying the debts of the estate, the personal and then the real estate was applied. For this purpose she might halve the assets marshalled in a court of equity, in exoneration of her paraphernalia, or to re-imburse the value when it had been subjected. Grulson vs. Corbett, 3 Atkins 370. Tipping vs. Tipping, 1 Peere Williams 729. 2 Peere Williams 542. From these and rqany other cases it is evident that the widow’s paraphernalia could be subjected by the creditors, and that if subjected, equity gave her a claim of re-imbursement from the personalty and real estate. The right of the administrators to subject the gold watch as assets for the payment of debts cannot be questioned. Considering the facts of the case, it was certainly paraphernalia, and this question is one of which the court is to judge. A watch worn by the widow has been so expressly considered, 2 Eq. Cas. Abr. 156. Her remedy is in equity for the value, should there be assets after the payment of the debts, and no action can be maintained in the present form. Her claim for the value of the other property mentioned rests upon a different ground. Although it legally vested in the husband, yet as it was the gift to the wife from a stranger, it is presumed to have been for her separate use, and equity regards it as her separate property and upholds the gift by making the husband trustee. In this case it is clear, from well settled principles that the property passed to the administrator, clothed with the trust, and he is liable in equity for the value. An action at law in this form cannot be maintained. The legal title would protect-him from damages for a conversion, and as the administrator took, not for the creditors, but for the widow, he is to be considered as a trustee for her, and liable for the value of the property converted, when the proper remedy shall be resorted1 to. Judgment reversed,