The question presented is, can Mrs. Wright, a feme covert, maintain an action in her own name as administratrix without being joined by her husband? It appears from the record that Mrs. Wright was appointed administratrix at the November Term, 1817, of the Probate Court. It is believed that we have no statutory regulation on the subject of married women suing in their own names excoptingthe 91 h section of the act of the Congress of 1840, entitled “An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights'of parties.” The section is as follows: “That the husband may sue either'alone or jointly with Iris wife for the recovery of any effects of the wife; and in case he fails or neglects so to do, she may, by the authority of the court, sue foii such effects in Tier own name.”
It is not believed that the section just cited embraces this case, because, when taken in connection with the preceding section, it appears manifestly to relate to the wife’s separate property defined and secured by the act. If, however, it could be so construed as to bring a right accruing to her in her representative capacity within its provisions, she should have averred and proved the fact of her husband’s refusal or neglect to join her in the suit. The fact that a suit was pending for a divorce is not of itself Sufficient to constitute the exception under which she could sue apart from her husband. (McIntyre v. Chappell, 2 Tex. R.. 378.)
The fact of Mrs. Wright having been legally appointed administratrix cannot be inquired into in this collateral way. She has been appointed by a court of competent jurisdiction, and the record does not inform ns of any legal impediment existing at the time, for she is not shown to have been a feme covert when administration was committed to her; and the. judgment of the Probate Court on her capacity is not void, if voidable. Her capacity to receive the administration has not been questioned. It is her right to sue without joining her husband with her in the suit that is the. matter in controversy. At common law a wife could be an'executrix, administratrix, or guardian with the assent of her husband, but it scorns clear that she could not without his assent. It is not believed, however, she could sue as such without his being joined with her; nor could she be sued on her bond without making the husband a party defendant. The cases referred to by Judge Whipple to sustain her competency to be a guardian were cases where she had been sued on her bond, and her husband was in every case sued with her. (2 Doug. Mich. R., 434.) In the ecclesiastical courts she could sue as a feme sola.
Our statute of 1848, to regulate proceedings in the County Court pertaining to the estates of deceased persons, in the 2-1th section makes the following provision: “That wherever a married woman may be appointed executrix or administra-trix, and shall wish to accept and qualify as sue!), she may, jointly with her husband, execute such bond as the law requires, and acknowledge the same *144■before the chief justice of the court where the will was proved or the letters were granted, and such bond shall bind her estate in the same manner as if she were a. feme sole; and whenever an executrix or administratrix may be a married woman, she and her husband shall act jointly in all matters pertaining to her said representative capacity.” This act was not in' force when the administration was committed to Mrs. Wriglit, but it was when the suit was brought; and I presume that it cannot be doubted that in all proceedings after it went into operation it formed the rule of action. If so, she could not act in anything pertaining to the estate without the husband being joined with her.
Note 5G. — "When in consegueneo of any unauthorized act of the husband, in violation of the marital rights of the wife, it becomes necessary for her to sue a third person, there is no necessity that she should be joined by her husband, nor that she should obtain the permission, of the court to sue alone. (O’Brien v. Hilburn, 9 T., 297.) But see Murphy v. Coffey, 33 T., 508; Jackson v. Cross, 36 T.. 193; Kelley v. Whitmore, 41 T., 647. Kote 57.—Towner v. Sayre, ante, 28.Judgment reversed.