either that in the circumstances it was fair and reasonable 1-the facts for instance that the husband was a wastrel,2 or that the wife was separated from him,3 would be facts that would induce the court to protect the married woman; or that it was made with the consent of the husband, and not secretly so as to defraud him of his marital rights. This point of view is very clearly illustrated by the decree in the case of Flecton v. Dennys in 1594.* It appears that Walter Dennys had sold to the plaintiff the lease of a parsonage impropriate which belonged to his wife. But his wife, who had acquired the lease as the executrix of her late husband, had, long before her second marriage, conveyed the lease to trustees. She had done this partly to provide for "the preferment of her kindred and servants in performance of her former husband's will," and partly in order that, if she married again, "her second husband should have no power to make away or incumber the said lease." Walter Dennys tried to prove that this conveyance had been made after the contract to marry, and was therefore in fraud of his marital rights. But it was proved, that so far was this from being the case, that Dennys had known of it and approved it before the marriage had taken place, and had impliedly ratified it after the marriage. The court therefore upheld the assignment. And, as it appeared that Dennys had had a good deal of property with his wife, the court in substance ordered that the trustees should hold the lease for the wife and that she should have the sole power of disposing of it. Further, it ordered that, as "it is alleged that the said Mrs. Dennys hath been hardly forced to sell away her jointure, and to discharge the bonds and assurance for the same, and that she wanteth competent maintenance for a gentlewoman of her estate, this Court thinks it convenient, if that be true, that she should have out of the leases which were hers, and are assigned as aforesaid, some

1See Povy v. Peart (1590), To:hill 98.

2 Fleshward v. Jackson (1623-1624), Tothill 94.

3 Georges v. Chancie (1639), Tothill 97; the Ecclesiastical courts sometimes assumed jurisdiction in such cases, and were occasionally assisted by the Council, Dasent ix 39, 96, 107, 144, 148 (1575-1576).

4 Monro, op. cit. 656-659.

5"It is therefore thought meet and so ordered by this Court, that the said grantee, or any of them, shall not, without the special licence and order of this Court thereunto first had, make any grant, assignment, charge, or incumbrance of the said lease, to any person or persons, whereby the profit or commodity, which the said Mr. Dennys and his wife, or either of them, may or ought by the said trust to have or take during her life of the things demised by the said lease, may be taken away or impaired, so that in the opinion of this Court she (and so consequently her husband) is by the said trust to have the use and commodity thereof during her life: but the disposition of so much of the said term, which shall be to come after his death, resteth now in her power during her life, though she be covert, and the said assignees or grantees ought by the said trust to convey and assure the same, according to her appointment and disposition," at p. 658.

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meet and convenient portion for her maintenance, answerable to the calling of Mr. Dennys, and unto her estimation and countenance, which she had before she was his wife.”1 We see here in germ the ideas which later will give rise to the doctrine of the wife's equity to a settlement; so that it is not surprising to find that in 1638-1639 this equity was practically recognized. But, when this result has been reached, it will not be long before the court will cease to look at the reasons for a settlement on a wife for her separate use, and will begin to recognize that in all cases where such a settlement is made the wife has complete proprietary capacity in respect of the property settled.

This result had not been completely reached at this period; but it is quite clear that by means of a trust of this kind, a proprietary capacity could, in a suitable case, be conferred on a married woman; and that she could even receive a present from her husband." It followed that a married woman was capable of performing legal acts in relation to this property, and that she was capable of acting as an independent party in legal proceedings in the court of Chancery. Thus, although in some cases the old idea that she could not, while under coverture, dispose of her property still lingered on, in other cases her dispositions seem to have been upheld. She was allowed to make a will of her separate property, to make a present of it to her husband," and


1Cp. Castillian v. Castillian (1612), Monro, op. cit. 164-166, where the circumstances and the conduct of the parties are carefully considered. These rules of law are alluded to in Butler's Hudibras Pt. III. canto i ll. 1187-1194

"How would'st th' have us'd her and her money?

First turned her up to alimony,
And laid her dowry out in law
To null her jointure with a flaw,
Which I beforehand had agreed
T' have put on purpose in the deed,
And bar her widow's making over

T' friend in trust, or private lover."

2" The defendant sues in the Ecclesiastical Court for a portion due to his wife, this Court orders an injunction to stay proceedings there, till he shall make a competent jointure," Tanfield v. Davenport (1638-1639), Tothill 114-115; but that the equitable rule was as yet uncertain can be seen from the fact that in 1637 an aggrieved wife makes her application to the ecclesiastical court, S.P. Dom. 1637-1638 32, ccclxxiv 31; and in 1638 to the king, ibid 575-576, cccxcv 86.

3 Hawkyns v. Peterson (1605), Monro, op. cit. 49-51.

"A widow, before marriage, makes a conveyance to the use of herself to friends, because her husband shall not have benefit; the trustees assign this lease to one for valuable consideration, and though the husband joins, shall not prejudice her; but because the assignee came in upon a valuable consideration, shall keep it till he receive all disbursements, and the wife to have benefit of the same," FitzJames v. Hirsley (1590), Tothill 43; "money by consent of her husband, put forth for the use of the wife, and gives power, she will dispose thereof accordingly, but not allowed," Poole v. Harrinton (1638-1639), Tothill 136; and cp. S.C. ibid 97; cp. Hawkyns v. Peterson (1605), Monro, op. cit. 49-51.

5 Flecton v. Dennys (1594), above 313 n. 5.

6 Baskervile v. Simthorne (1614-1615), Tothill 95.


to sell land so settled to strangers;1 and perhaps even to make a binding contract.2 Similarly she could appear as plaintiff or defendant in litigation in the court of Chancery. Occasionally, indeed, the fact that her husband is beyond the seas or that she is living apart from him is given as a reason for allowing her to do so; 4 but in other cases no such reason is given, and it is fairly obvious that her capacity thus to sue or be sued is the consequence of the new proprietary position given her by equity. (2) As I have said, the court of Chancery did not get very much chance of interfering in questions of guardianship during this period. But we can see that, where there was property to protect, and where the case fell outside the purview of the court of Wards and Liveries, it was prepared to assume jurisdiction. Thus it was prepared to adjudicate upon the title of a child's relative to be guardian in socage; and it assumed jurisdiction to compel the executors of such a guardian to account for rents and profits taken during the minority. Further, it could order allowances to be given to children for their education during their minority. It is clear that when feudal wardship disappears the court will be quite ready and able to assume the rôle of the protector of the proprietary interests of infants; and that the way will be opened for the assertion of even more extensive claims based upon a supposed delegation of the king in his capacity of parens patriæ.9



The Administrative Jurisdiction.

The machinery of the court of Chancery was, as we have seen,1o as well adapted for the exercise of this jurisdiction as the machinery of the common law courts was badly adapted. It could examine accounts; and it could supervise and adjudicate upon the conduct of those who administered an estate as trustees, guardians, or executors. For the same reason it could adjust accounts between principal and surety, or surety and surety,

1 Bannister v. Brooke (1619), Tothill 158.

2" The defendant demurred, because she promised to pay money when she was covert baron, overruled,” Hamblin v. Sherringham (1582-1583), Tothill 74.

3 See Tothill 74, 93, 94, 95.

4 Castleton v. Fitzwilliams (1579-1580), Cary 100, 101; Plomer v. Plomer (16331634) I Ch. Rep. 68.

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5 Above 309-310.

6 Sweetman v. Edge (1577-1578), Cary 96-97.

7 Burgh v. Wentworth (1576), Cary 54.

8" Children allowed seven or eight pounds per centum for their education, where there is no allowance by the will," Bright v. Chappell (1629-1630), Tothill 6; executors ordered to put in good security to allow five pounds per centum for education, and to make good their portions," Barwick v. Barwick (1601-1602), ibid 52; "the defendant's wife being priviment enseint at her husband's death, the child could not be provided for by law, but the court ordered that the child should have sufficient allowance," Pope v. Moore, ibid 93.

9 Vol, vi c. 8.

10 Above 288,

between principal and agent, and between partners. Of trusts I have already spoken, and shall speak again later;1 and of the beginnings of the modern law of partnership and of principal and agent I shall speak in the Second Part of this Book.2 Of the subjects upon which the court is already beginning to acquire a certain number of rules are, (1) certain topics connected with the administration of the assets of deceased persons; and (2) one or two rules as to the contract of suretyship. At this point, therefore, I shall say something of these two subjects.


(1) We have seen that jurisdiction over wills, intestacies, and the administration of assets was divided between the common law courts and the ecclesiastical courts-with very inconvenient results. The machinery of the common law courts was quite incapable of being used for administrative work; and, during this period, the growing weakness of the ecclesiastical courts made them increasingly incapable of remedying the deficiencies of the common law courts. * Hence there was an increasing need for the court of Chancery to continue to intervene to remedy the defects of both sets of tribunals.5 The result of its interposition was to create our modern law as to the administration of assets. But as yet we are far from this result. We can only see the beginnings of some of our later rules in various encroachments on the sphere of (i) common law rules, and (ii) the rules laid down by the ecclesiastical courts.

(i) The common law rules dealt mainly with the devise," the position of the heir or devisee, and the relation of the executor or administrator to the debtors or the creditors of the estate. 8 In many cases equity was content to follow the law. It left most questions concerning devises to the common law courts.9 It followed the law as to the executor's personal liability for devastavit 10 and other wrongs 11 committed by him, as to his nonliability for the torts of the deceased,12 as to the independent powers of co-executors, 13 and as to the necessity of the executor's

1 Vol. vi c. 8.

3 Vol. iii 534-535, 585-595.

2 Pt. II. c. 4 I. §§ 4 and 5.

4 Ibid 594; for this reason the Council often intervened, see e.g. Dasent x 123 (1580), 351 (1580-1581); xxiii 286-287, 357 (1592); in a case of 1576-1577, ibid ix 272274, we see the Prerogative court, the Exchequer, and the Chancery all engaged in settling questions as to the administration of a single estate.

5 Above 288-289.

7 Vol. iii 574-576.

9 Pt. II. c. I § 4.

6 Vol. iv 465-467; Pt. II. c. I § 4.
8 Ibid 576-583, 584-591.
10 Cary 24.

11 Watts v. Kancie (1612), Tothill 77-an executrix who sold, free from incumbrances, a lease subject to a charge in favour of a devisee, was held to be personally liable for the amount of the charge; cp. Townley v. Shurborne (1633), ibid 88— liability for waste.

12 Holland v. Owen (1627-1629), Tothill 87—“ an executor shall not be charged with a trespass committed by the testator."

13 Bacon v. Bell (1597), Tothill 87-" two executors, the one dissents, yet the act of the other shall be good."

assent to complete the title of the legatee.1 But in a much larger number of cases it was obliged to correct the injustice of common law rules, and to supplement their deficiencies. By so doing it helped to define the duties of the personal representatives, it gave them a certain measure of protection, and it began to lay down certain rules for the administration of the estate.



In the first place, the court of Chancery helped to define the duties of the personal representative. It did not regard him as a trustee unless specially appointed to that office; but it subjected him to some of the same rules as those which it applied to trustees. Thus he must, as in the ecclesiastical courts, account for all benefits received; and, like a trustee, he could not plead the statute of limitation. Though entitled by law to the undisposed of residue, in equity that residue must be "disposed of to the testator's kinsfolk and to charitable uses." 5 Moreover, although the appointment by a testator of his debtor as his executor extinguished the debt at law," it did not necessarily have this effect in equity. In the second place, the court provided some protection against the harsh rules of the common law. gave co-executors some protection against each other's acts. Thus, in equity one executor could sue the other; one executor could prevent another from improperly releasing a debt due to the estate; one executor could compel the other to give security for the carrying out of a trust imposed upon them; 10 and if one of two co-executors, in compliance with a decree, paid debts and legacies, he could compel his fellow to pay a moiety. It also gave them some protection for acts done or proposed to be done Cupper (1583-1584), Choyce Cases 173; vol. iii 583.

1 Carter v.



2 Anon. (1602), Cary 21-" Nota que executor non poit estre a trust, unless he have an especial gift in the will, and that may then be in trust, otherwise the general trust of an executor is to pay debts and legacies; and of the surplus-age to account to the ordinary in pios usus.'

3 Beecher v. Haselwood (1579-1580), Choyce Cases 143-"the defendants demurred for that they are executors, and therefore not chargeable in law to accompt for goods received by the testator: but ordered to answer ; cp. vol. iii 592. Anon. (1639-1640), Tothill 89.

5 Brereton v. Roberts (1608-1609), Tothill 87.

7 Askwith v. Chamberlaine (1640), Tothill 53; S.C. Nels. 44.

6 Vol. iii 589.

8 Allen v. Story (1585), Okely v. Barnard (1596-1597), Tothill 86; in Mohun v. Blunt (1621), Monro, op. cit. 300-301, it was said "the executor complained of ought to answer the same; for that, however, in the eyes of the law, many of them represent but one person; yet every of them hath a several conscience to be rectified and reformed by this court.'

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9 Anon. (1488-1489), Cary 15, citing Y.B. 4 Hy. VII. Hil. pl. 8 (p. 5)—in that case the chancellor said "Sir jeo scay bien que chescun Ley est, ou de droit doit estre, accordant a Ley de Dieu; et le Ley de Dieu est, que un executor qui est de male disposition ne expenderait touts les biens, etc. Et jeo scay bien si issint soit, et ne fait amends, ou ratification (sc.) si il soit de pouvoir, ou n'est voulant a faire restitution si il soit de pouvoir, il sera damne in Hell, etc. Et a faire remedy pur tiel chose, come jeo entend, est bien fait accord al conscience etc.'

10 Cotton v. Causton (1579), Cary 79.
11 Rowe v. Billing (1634-1635), Tothill 89.

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