her own right, as ready money, jewels, household goods, and the like, the husband hath an immediate, absolute and actual property devolved to him by the marriage, which never can revest in the wife or her representatives. (r)

[225] Such chattels also as are given to the wife after the marriage shall belong to the husband, and he shall be entitled to them, although they had not come to his possession at the time of her death. (s) if a legacy be left to a wife, to be paid twelve months after the testator's death, and the wife die within that period, her husband is entitled to it, for an immediate interest was vested in him, and subject to his release before the time of payment. (t)

Thus it hath been held, that

Such are the legal consequences of the unity of husband and wife; but courts of equity, although they recognise the rule of law which considers the husband and wife as one person, yet, in some cases, will treat their interests as distinct. (u) If property be given generally to the wife, it shall vest in the husband, both in law and equity; nor shall it be supposed to be for her separate use, though she live apart from the husband. (v) But where it is given to the separate use of the wife, she shall be entitled to it in equity independently of her husband. (w) And though it were always clear that she was thus entitled to such property, if trustees were interposed, yet it was formerly a doubt, whether she could take it where none were appointed. (x) It is now however settled in the affirmative. It has been held, that where A. devised lands in fee to his daughter, a feme covert, for her separate use, without naming trustees, it should be a trust in the husband,

for it makes no difference whether the trust be created by the act of the party, or by the act of the law. (y) So, where a bond was bequeathed to a wife for her sole and separate use, and no trustees nominated, it was held to be completely vested in her in equity. (≈)

And equity will not only raise a trust where the gift is expressly for the separate use of the wife, but will infer it from words not technical, or from the circumstances under which the gift is made, or, as it seems, merely from the nature of the subject: Thus, where an estate was given to a husband, for the livelihood of his wife, he was considered as a trustee for her separate use. (a) So where diamonds were given to the wife by the husband's father, on her marriage, it was held, that they were a gift to her separate use, and that she was in equity entitled to them in her own right. (b) And, where a foreigner made the wife a present of trinkets, though not [227] expressly for her separate use; Lord Hardwicke, C. seemed to think they should be so construed. (c)

Gifts, likewise, from the husband to the wife, although the law does not allow the property to pass, shall, without prejudice to creditors, be supported in equity whether trustees be interposed, or not. (d) Thus, where the husband transferred one thousand pounds South Sea Annuities in the name of his wife, she was held entitled to them, as given to her separate use. (e)

So trinkets given to the wife by the husband in his lifetime, were decided to be her separate estate. (ƒ) And where a husband allowed his wife to make profit of all butter, poultry, fruit, and other trivial matters arising from the farm, beyond what was used in the family, out of which she saved

(y) Bennet v. Davis, 2 P. Wms. 316. Darley v. Darley, 3 Atk. 399. Com. Dig. Baron and Feme, D. 1. (2) Rolfe v. Budder, 1 Bunb. 187.

(a) Darley v. Darley, 3 Atk. 399. (b) Graham v. Londonderry, 3 Atk. 393.

(c) 1 Fonbl. 98. Graham v. Londonderry, 3 Atk. 393.

(d) Lucas v. Lucas, 1 Atk. 270. (e) Ibid. 271. Graham v. Londonderry, 3 Atk. 393.

(ƒ) Graham v. Londonderry, 3 Atk. 393.

one hundred pounds, which the husband borrowed, on his death, the Court of Chancery allowed the agreement, as a reasonable encouragement of the wife's frugality, and admitted her to come in as a creditor for that sum. (g) So where the husband agreed that the wife should take two guineas of every tenant beyond the fine paid to the husband for the renewal of a lease, this was allowed to be the wife's separate money. (h) But, in all such cases, to entitle the wife to such an allowance, there must be a sufficient fund for the payment of debts. (i) Nor will the court, in any case, permit a gift of the whole of the husband's estate, while he is living, for that [228] would not be in the nature of a mere provision, which is all she is entitled to. (k)

But, if the husband and wife live together, and he provide her with clothes and other necessaries, and she demand not but suffer him to receive the rents and profits of her separate estate, or her pin-money, or if she accept payments short of what she is entitled to on his death, neither she nor her representatives shall have an account of such separate estate farther back than a year, for she shall be presumed to have waived her right to the antecedent produce. (1) Yet, under particular circumstances, it may be otherwise; as where the wife had three hundred pounds per annum pin-money, and the husband, for several years before his death, paid her only two hundred, but promised her that she should have the whole at last, she was held entitled to all the arrears. (m)

In like manner shall she be entitled to all arrears, if she lived separate from her husband. (n)

But, if A. proposing to give a married woman money for

her separate use, and to secure it, give her a note for a certain sum, as received, promising to be accountable, it shall be assets in the hands of the executor of the husband. So, [229] likewise, if a married woman deposit money in A.'s hands to be kept for her separate use, it shall be considered as part of the husband's estate. (≈) But see Nash v. Nash, 2 Madd. Rep. 133.

SECT. III.

Of the wife's paraphernalia.

THE wife, also, may acquire a legal property in certain effects of the husband at his death, which shall survive to her over and above her jointure, or dower, and be transmissible to her personal representatives. (a)

Such effects are styled paraphernalia; a term which, in law, imports her bed, and necessary apparel, and also such ornaments of her person as are agreeable to the rank and quality of the husband. (b) Pearls and jewels, whether usually worn by the wife, (c) or worn only on birth-days, or other public occasions, (d) are also paraphernalia.

To what amount such claims shall prevail is a point which cannot admit of specific regulations. It must be left, on the [230] particular circumstances of the case, to the discretion of the court. (e)

In the reign of Queen Elizabeth, jewels to the value of

(2) Hodges v. Beverley, Bunb.

188.

(a) 2 Bl. Com. 435. 3 Bac. Abr. 66. Off. Ex. Suppl. 61, 62. 11 Vin. Abr. 178.

(b) Com. Dig. Baron and Feme, F. 3. 1 Roll. Abr. 911. Swinb. part 6, s. 7.

(c) Lord Hastings v. Sir A. Douglas, Cro. Car. 343.

(d) Graham v. Londonderry, 3 Atk. 394.

(e) 3 Bac. Abr. 66. Lord Hastings v. Sir A. Douglas, Cro. Car.

343.

five hundred marks were allowed, in the case of the wife of a viscount. (f) A diamond chain, of the value of three hundred and seventy pounds, where the lady was the daughter of an earl, and wife of the king's sergeant at law, in the reign of Charles the first, was considered as reasonable. (g) Jewels and plate bought with the wife's pin-money, to the amount of five hundred pounds, which bore a small proportion to the husband's estate, were regarded in the same light. (4) And Lord Hardwicke, C., held the widow of a private gentleman to be entitled to jewels worth three thousand pounds, as her paraphernalia, and that the value made no difference in the Court of Chancery. (i) By the custom of London, a citizen's widow may retain some of her jewels as paraphernalia, but not all. (k)

If the husband deliver cloth to the wife for her apparel, and die before it be made, she shall have the cloth, as of this species of property. (7) If the husband present his wife [231] with jewels, for the express purpose of wearing them, they shall be esteemed merely as paraphernalia, for if they were considered as a gift to her separate use, she might dispose of them absolutely, and so defeat his intention. (m)

The husband, if inclined to so unhandsome an exercise of his power, may sell, or give away in his lifetime, such ornaments and jewels of the wife, but he cannot dispose of them by will, any more than he can devise heir-looms from the heir. (n) In case of a deficiency of assets for payment of debts, the widow shall not be entitled to such paraphernalia (o) not even if they were presents made to her by the

(ƒ) 2 Leon. 166. Bindon's case, Moore, 213.

(g) Lord Hastings v. Sir A. Douglas, Cro. Car. 343. S. C. Jon. 332. Roll. Abr. 911. 11 Vin. Abr. 179, S. C.

27.

(h) Offley v. Offley, Préc. Chan.

(1) Northey v. Northey, 2 Atk. 77. (k) 11 Vin. Abr. 180. Nels.

Chan. Rep. 179.

(7) 1 Roll. Abr. 911.

(m) Darley v. Darley, 3 Atk. 398. (n) 2 Bl. Čom. 436. Graham v. Londonderry, 3 Atk. 394.

(0) 2 Bl. Com. 436. Tipping v. Tipping, 1 P. Wms. 730. Tynt v. Tynt, 2 P. Wms. 544. Snelson v. Corbet, 3 Atk. 369. Bindon's case, Moore, 216. 3 Bro. P. C. 187.