If a wife, possessed of a term for years, marry an alien, her husband obtains no right to dispose of this term. (a)'

The husband has the same power over leases, in trust, for the benefit of the wife, unless given to her separate use, as over leases granted directly to her, and to the profits arising from them, unless the term be settled as a jointure, or for maintenance of the wife after his death. 2 Ch. Ca., 86; Free., 82; Bulst., 118. There see the case where a femme sole conveyed her land by leases to trustees for herself, and married and received the rents; part of the avails she let out, and took bonds and other securities, and died. (b) The question arose, whether the husband must hold this estate as her administrator, as he did her choses; or in his own right as husband. It was ad. judged that he held such terms and their avails, as husband, and need not inventory the same. This case is cited in Hob., 3. There are cases in which a different doctrine is holden. Cro. Eliz., 466; Tath., 155; 2 Free., 61.2

(a) 10 Mod., 104.

(b) Vern., 7, 18.

spect of the joint interest of the husband and wife in the term, would, with their principal, the term, survive to the wife. Bac. Abr., tit. Bar. and Fem. (D.), a. 17; Rop, Bar. and Fem., c. 5, § 2. It seems unnecessary to dwell at length on the subject, as the married women's acts have generally swept away the husband's rights to the rents and profits of the wife's realty.

1 In support of this position see 1 Cruise on Real Property, 263. Nor can he be a tenant by the curtesy. 7 Rep., 25; 1 Vent., 417.

The alienage of a husband does not prevent the vesting in him, upon the death of his wife, of the entire estate of the land conveyed in fee to himself and wife subject only to the paramount right of the people upon office found or escheat. Wright v. Saddler, 20 N. Y., 330. See statutes generally in regard to effect of alienage on real property rights.

2 Roll. Abr., 343. It is true that at common law the trust of the wife's term may be sold by the husband, as well as the term itself, and it is a matter of no importance whether it be the trust of a present, actual and vested interest in the term (Pr. in Ch., 418; Tudor v. Samyne, 2 Vern., 270; Bates v. Dandy, 2 Atk., 207), or of a contingent or possible interest, provided the interest be a legal one, i. e., such an interest as, upon the determi nation of the previous estate, or the happening of the contingency, will immediately come to the possession of the wife, unless, perhaps, in those cases where the possibility or contingency is of such a nature that it cannot happen during the husband's life-time. Co. Litt., 46, B. Hutt., 17; 1 Salk.,

Cro. Eliz., 287, Poph., 4, are authorities to prove that a husband's lease for a term of years belonging to his wife, for a certain number of years, to commence immediately on his death, is valid.

A femme lessee for twenty years, marries. The husband leases the farm for ten years, and dies before the expiration of the ten years. The executor of the husband has the rent for the residue of the ten years, and the wife for the residue of the term. (a)1

The chattels real of the wife are not only liable to be disposed of voluntarily by the husband, but they may be taken on execution by a creditor of the husband. Her choses cannot be taken on execution, except her mortgages, which may be taken; choses being a species of property, which, upon the principles of the common law, cannot be sold. (b)

It is said that if the husband charge the chattels real of the wife, that this shall not bind her. (c)

If a femme sole be owner of chattels real, and be dispossessed thereof, and then marries and dies, the husband, never having obtained possession thereof, during the coverture, is not entitled to it, but it belongs to the administrator of the wife, as her choses do.'

A possibility in the wife, to a chattel real, does not vest in the husband. The wife owns a term of years, but is dispos(a) 1 Vent., 259.

(b) Pr in Chan., 418.

(c) 1 Roll., 346.

326. But it is an exception to this rule, at least in equity, that, if a future or executory interest in a term, or other chattel, be provided for the wife, with the husband's consent, he cannot dispose of it from her, as it would be the height of absurdity and injustice that he should thus be permitted to defeat his own contract. But this supposes the provision to have been made before marriage, for, if it be made subsequent to the marriage, it is a mere voluntary act, and void against an assignee for a valuable considera. tion. Doyly v. Perfull, 1 Ch. Cas., 225; Turner's Case, 1 Vern., 7; Pitt v. Hunt, id., 18. But a settlement made by a stranger upon the wife after her marriage is good, unless the husband expressly dissents from it. Picquet v. Swan, 4 Mass. C. C. Rep., 443.

1 Bac. Abr., tit. Bar. & Fem., and see note 1, page 27.

22 Kent's Com., 134; 1 Cruise Dig., 263.

sessed, and marries and dies before possession obtained; this possibility does not survive to the husband, but goes to her administrator. So too, where the husband marries a wife, owner of a term for years, and who had disposed of it to J. S., for a term, if he, J. S. live so long; here is a possibility in the wife, that J. S. may die before the term ends; and if he do, the wife and husband being both dead, the term will not go to the husband's executor, but to the wife's. (a)'

If the wife be possessed of chattels real, as executrix, the husband is not entitled to them, although he survive her.

When a term of years is granted to a trustee for the use of a femme sole, and she marries and dies, the husband is not entitled to the use, but the administrator of the wife: neither can the husband, during the coverture, grant away the use or charge the term with encumbrances. (b) The only benefit that he can have is the usufruct during coverture.'

By marriage, the husband acquires the usufruct of all the freehold estate of the wife, that is to say, of all her lands, tenements and hereditaments, which she has in fee simple, fee tail, or for life, during the coverture. This estate is a freehold estate in the view of the law, being an estate for life, since it may by possibility last during his life; and having no certain determinate period. (c)3

(a) Co. Litt., 351; 1 Roll. Abr., 345; 2 Show., 282; 1 Atk., 92; 2 id., 67, 420; 2 P. Wms., 639; 3 id., 11; 1 Brown, 269.

(b) Cro. Eliz., 466.

(c) Co. Litt., 351.

19 Mod., 43; id., 104.

So if a future or executory interest in a term, or other chattel, be provided for the wife, with the consent of her husband, he cannot afterwards dispose of it. Bac. Abr., tit. Bar. and Fem., c. in note.

In general, the husband's usufruct of the wife's realty is now abolished by statute. As to common law rule, see Bac. Abr., tit. Baron and Fem., 1 Roper on Husband and Wife, chap. 2d (2d edit.); Bailey v. Duncan, 4 Monr., 260; Weller v. Baker, 2 Wils., 423; Kenney v. Udall, 3 Cow., 590, where, under some circumstances, this right of the husband will be taken away.

The husband may convey his estate by the curtesy. Trask v. Patterson, 29 Me., 502. The conveyance by the husband of the fee of his wife's estate passes his life estate and no more. Miller v. Shackleford, 3 Dana (Ky.), 291.

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The fee of the land, however (where the estate is a fee), still remains in the wife; and any injury to the inheritance by trespass, as by cutting down trees, burning fences, pulling down houses, is considered as in injury to her. If an action be brought for the purpose of recovering on account of such injury, it must be brought as well in the name of the wife, as in the name of the husband; but the usufruct is the husband's; and for an injury to that, as the destruction of crops growing on the land, the husband alone is entitled to redress.'

In Palmer, 313, it is holden, that if a wife survive her husband, she shall have an action of trespass for a trespass committed upon her land during coverture. This must be understood with some qualification. If the trespass be of such a nature as to injure the freehold, as pulling down a house or cutting down trees, she is entitled to an action; but if it be an injury done to the emblements, she can have no action for this, for they do not belong to her

A wife is lessee for life. The lessor afterwards leases to the husband and wife the same lands for their lives. joint-tenants; for the title of the wife accrued

They are not before that of

the husband, and the title of joint-tenants must accrue at the same time. (a) The husband holds the lands during coverture, in the right of his wife only, and after her death the second. lease accrues, by way of remainder, for the term of his own life. A remainder must be created, when the particular estate is created; but the wife's estate was created before, and it would not commence in future, on the wife's death, for it is a freehold estate.

On the death of the husband, in the life-time of the wife, the fee of her land remains in the wife: neither his heirs nor executors have any interest therein; but the emblements growing (a) Co. Litt. 299.

11 Ch. Pl., 63; Babb v. Perley, 1 Greenl., 6. So tenant by the curtesy cannot commit waste, though he is entitled to reasonable estovers. White v. Cutler, 17 Pick., 248; Cook v. Cook, 11 Gray, 123; Armstrong v. Wilson, 60 Ill., 226.

* 1 Chit. Pl., 641: Com. Dig., tit. Bar and Fem., 2 a.

So where the husband and wife are divorced causa præcontractus, and the husband has sown the land previous to such divorce, he will be entitled, at

upon the land belong to his estate. Although they adhere to the freehold, yet they are viewed in this case as personal property, and vest in his executors, who have a right to enter upon the land for the purpose of gathering the emblements. When a husband is seized of land in right of his wife, and she dies without issue by him born alive, so that the husband has no estate by curtesy therein, and the land descends to the heir of the wife, if the husband has sown or planted the land he is enti. tled to the emblements. (a)

Where husband and wife are joint-tenants for life, and the husband SOWS, and dies before severance, who is entitled to the emblements? the husband's executor or the wife? Respecting this question, the authorities are contradictory. The principle which governs in the case of emblements, I apprehend, must settle this question without difficulty. In all other cases, if the tenant sow, and his interest in the estate is determined before severance, and this could not be foreseen by him, or was not done by his own act, the tenant has the emblements, and not the owner of the land. If tenant at will sow, and the lessor determine the estate, and the tenant at will die, his executor has ingress, etc., to take the emblements, and not the lessor; but if tenant at will, by his own act, had determined the estate, the lessor would have been entitled. (b) If tenant for years sow, and his estate determine before severance, the reversioner has the emblements, for this he might have foreseen. If tenant for life sow, and die before severance, his death is the act of God, and the tenant could not have foreseen it; and, in that case, the executor of the tenant for life has the emblements. In this case

the husband sows; he could not have foreseen his own death,

(a) Co. Litt., 351; Doct. & Stu., 1 Dial., cap. 7.

(b) Co. Litt., 55; Cro. Eliz., 61; 1 Roll. Ab., 727; Noy., 149; Cro. Car., 515; Godb., 189; Stiles, 270.

common law, to the emblements; for, although the divorce is the act of the parties, yet the sentence which dissolves the marriage is the judgment of the law, et judicium redditur in invitum. Oland's Case, 5 Rep., 116, a.

See, also, Mattocks v. Stearns, 9 Vt., 326, arguendo. A lease by a husband of lands which he holds in the right of his wife, will operate so far in the tenant's favor as to entitle him to the emblements. 1 Tyler's Vt., 409: 2 Kent's Com., 131; Rowney's Case, 2 Vern., 322.