We think it unnecessary to notice the first and second exceptions which relate only to the sufficiency of the pleadings. His Honor had the right to allow or require the amendments, whether they were necessary or not, and after they were made at last, the pleadings sufficiently made the issues which were submitted to the jury.
3d Exception. The defendant's counsel requested the Judge to charge the jury "that the testimony to charge the defendant as executor de son tort must be sufficient to warrant a *Page 381 conviction of felony, viz: taking, stealing and conveying away the personal property of the deceased, had it been done by any other person not under her direction."
The judge properly declined this, but told the jury that it must be proved that she took more of her husband's goods than was necessary for the support of herself and family up to the grant of administration, that it must have been done fraudulently and with the intent to defraud his creditors. We think if there is any error in this it is one of which the defendant cannot complain.
His Honor submitted three issues to the jury:
1. As to the notes declared on.
2. Did defendant fraudulently appropriate the cotton and bacon mentioned, and
3. What was their value;
And upon the jury finding the two first issues for the plaintiff directed a judgment to be entered for the value of the notes, not to exceed the value of the goods appropriated, as found by the jury.
It is now suggested that the pleadings and evidence disclose two defenses which (if found as facts by the jury or upon a reference) the defendant should have the benefit of:
1. That the value of the year's provision assessed to her should be deducted from the assets found to have been received.
We think this should be, unless it shall appear that the year's provision was paid from some other source. Such an allowance has priority to all debts. It is not a debt owing by the deceased, and consequently does not come within the rule that an executor de son tort, cannot retain for a debt to himself. It is a provision which the law makes for the support of the family during the first year after widowhood. Moreover, a retainer may be justified by obtaining administration, and the marriage with the administrator was equivalent to that for this purpose. *Page 382
2. The other defence goes to the whole demand, viz: that the defendant before suit brought by the plaintiff married the rightful administrator, whereby she transferred and paid over to him all the assets of the estate, and became released from all further liability by reason of the same.
The fact of the marriage appears to be admitted by the pleadings. Recent legislation has so changed the law respecting the effects of marriage on the contracts and property of the parties to it that any laborious discussion of what they were would be unprofitable. Moreover as in the view we take of the case the personal representative of the administrator should be a party, and as the questions which are now suggested do not appear to have been considered below, and were not fully argued in this Court, we prefer to express no opinion on any question further than may be necessary to confine our inquiry within certain limits.
We suppose it to be clear that if one who has made himself an executorde son tort by taking possession of the property of a deceased, accounts with and pays over to the rightful administrator before suit brought by a creditor, such payment is a defence to the action of the creditor. 1 Williams on Ex'r 235. Padget v. Priest, 2 Y.R. 97; Curtis v. Vernon, 3 Y.R. 587.
If a man being a creditor in his own right marries his feme debtor his debt is released forever. 8 Co. 136; 1 Thomas Coke 435, note D; Dyer 140.
If however the debt be to the husband as a trustee, it cannot be that as between the debtor and the cestui que trusts, the debt is extinguished. Bacon Abrid. 9, Release B. Cro Eliz. 114; Moore 236, pl. 368; Leon 320.Dorchester v. Webb, Cro. Car. 372; Cotton v. Cotton, 2 Vern. 290.
How far it would cast any liability upon the husband after the termination of the marriage by his death, and whether that liability would be primary or secondary as between his representative and the feme, we have not found *Page 383 determined. It may be that it would depend upon whether he actually received from his wife the very assets of his intestate which she had appropriated, or other property into which they had been converted; or it may be affected by the fact that he obtained by her other property sufficient to pay the debt. Carmichael v. Carmichael, 2 Phil. C.C. (Eng. ch. Rep.) 101; Cotton v. Cotton, ub. 2 Tern. 270; Powell v. Bell, Pre. chap. 255.
These questions are left open.
This case therefore is remanded in order that the personal representative of King may be made a party, and that it may be ascertained what property King acquired by his marriage with the defendant, and if necessary that accounts may be taken of the administration of the deceased Ivey, both by the defendant, and by King, and that such further proceedings be had, c.
The findings on the issues will stand in the mean while.
PER CURIAM. Case remanded and order accordingly.