The preliminary question, touching. the competency of the testimony of John James Stewart, is first to be disposed of. He has been examined in chief, on behalf of the defendants, W. J. Stewart and Mary Steivart; and he has evidently a direct interest in right of his wife, in support of the defence set up by those defendants, and of their claim to the twenty-three bank shares. It is admitted, that if the claim could be supported, his wife, as one of the next of kin to Catharine Stewart, would be entitled to a distributive share of the stock; and it is well settled, that the husband cannot be a witness for or against his wife. His testimony must, therefore, be suppressed.
If a husband \vife’Vand dies without administenng on her property, has completed the admimstrabón, and the wife’s next tei^such^adtT'trustee1* for the represenhusband?f thBWhen we come to look into the merits of the case, it is perceived, at once, that the title of the defendant, Mary Stewart, as administratrix de bonis non, to the shares in question, in opposition to the claim of the plaintiffs, must rest entirely upon the force and effect to be given to the two ante-nuptial instruments stated in the pleadings and exhibited in proof, and upon which the counsel have commented so largely. If those instruments be placed out of view, the plaintiff, as executrix of the husband, is entitled to call upon the administratrix de bonis non of the wife, to account for the bank shares, because, upon the death of Catharine Stewart, her husband became entitled to administer upon her personal estate, and to take to himself all her personal property, in action as well as in possession. If a husband dies before he administers, or before he has completed the administration of his wife’s estate, though the right of administration may, perhaps, in that case, belong to the wife’s next of kin, yet such an administrator will be regarded by this Court as a trustee for the representatives of the husband, and be held accountable to them for the personal property ofthe wife. These are well established rules, that do r r v # e 3 not seem to admit of doubt or dispute, (Squib v. Wyn, 1 P. Wms. 378. Cart v. Rees, cited by Lord Ch. Cowper in that case. Lady Aiscough’s case, also cited ibi. Elliot v. Collier, 3 Atk. 526. 1 Ves. 15. 1 Wils. 168. S. C. Humphrey v. Bullen, 1 Atk. 458.)
1. The marriage article executed by Catharine Hopkins, on the 13th of February, 1809, on the eve of her marriage, is said to have been procured from her by fraud, practised by her trustee, and to have been executed also without the knowledge or consent of William R. Stewart, her husband, and, consequently, to have been made in fraud of his marital rights. I do not think it will be necessary to examine the facts or the law in respect to either of these allegations, because, assuming the instrument to have been fairly procured, and validly made, it does not appear to create any obstacle to the admission of the plaintiff’s claim.
If a wife, ha - ving a power of appointment by marriage articles, which contain no pro* vision for the disposition of heii separate property on her death, dies without making any appointment, the property goes to the husband^ assurvit'or, as ifno such power of appointment had bees* created..This ante-nuptial article, recited the fact of her intended marriage with W. R. Stewart, and that she was desirous of making a provision for the support and benefit of herself and her children, free from the control of her intended husband, or of any husband, she might, thereafter, marry, over the same. It then granted and assigned all her estate, real and personal, in law and equity, to Schieffelin, in trust, for her future use and benefit, free from any control of her said husband, or any other person she might thereafter marry; and in trust, that he should lease or sell the same, as to him should seem most advisable for her interest, and pay the proceeds to her or her assigns, without being accountable to her husband; and should reconvey the estate as she, with the assent of her husband, should nominate and appoint.
The recital speaks of an intended provision for her and her children; but the granting part of the deed is confined, and the trust, specially created, is limited exclusively to her own use and benefit; a provision for her children was left to rest upon the voluntary execution of her own power of appointment; and she never made any appointment. The object of the provision was, to free the property and its proceeds from the control of her husband, during the coverture ; and there was no disposition of the property in the event of her death. She had, indeed, the power of appointment; and she might, with the assent of her husband, have made a disposition of the property to meet that event; but she did not exercise the power, or appoint the uses to which the property should be applied after her death ; and the property remained in the same state at her death, as if no such power of appointment had been created. It follows, therefore, as a plain and necessary consequence, that the rights of her husband at her death, as survivor, were the same as if no such settlement had been made. I believe it has been the invariable practice, and that the uniform course of the precedents will show it, that when it *246is intended in a marriage settlement to exclude the right of the husband to her personal property, in the event oi his surviving her, and, in default of her appointment, an express provision to that effect is inserted in the deed. The case of Bailey v. Wright, (18 Ves. 49.) which was cited upon the argument, affords a clear illustration of the rule and practice on this subject. By the marriage settlement, in that case, the fortune of the wife was settled in trust; and in case of her death, in the life of her husband, to pay according to her appointment, by deed or will; and, in default of such appointment, in trust for her next of kin, or personal representatives. The wife died without appointment, and the husband was held to be excluded, as not being within the intention of the limitation. If there had been no such words of limitation, it would never have been made a question, whether the property did not devolve upon the husband, by due course of law.
The Court cannot take away the right of the husband to the personal estate of his wife, when it is not taken away by the settlement, or by the exercise of the power of appointment under it. When the settlement makes no disposition of the property, in the event of the wife’s death, and provides only for her dominion over it during coverture, the right of the husband, as survivor, is a fixed and stable right, over which the Court has no control, and of which he cannot be devested. The settlement cannot be extended, by construction, beyond the just and fair import of its provisions; and, clearly, the Court cannot create a settlement, or a disposition of property, in violation of the jus mariti,, when none has been made by the party. There is, then, nothing in the instrument in question, that barred the husband, in default of an appointment by the wife, to claim and appropriate to himself her personal estate remaining undisposed of at her death. Whether he succeeds to her property jure mariti, or as her next of kin, as many of the books have expressed it, does not seem to be at all mate*247rial; and any question as to the accuracy of the expression, is rather matter of verbal criticism, than of substantial use. The husband is hqr next of kin, by relation of marriage ; and he takes in consequence of being her husband, and by reason of that relation. It is in this sense only, that he is spoken of, as her next of kin. When the wife’s next of kin are mentioned in settlements, the words are understood to 7 e be used in the ordinary and popular sense, and it is evident the husband is not intended. It is sufficient, in this case, to observe, that when the wife’s choses in action, or other personal property, over which she has control by settlement, is left undisposed of after her death, the husband, who survives her, must, of course, take it, and with as good a right and title in law, as the heir takes the undevised estate of his ancestor.
. , . nage; and m case of her her ’personal Pr0Perty> relation, The husband is next of kin to his wife, by re-2. The deed said to have been executed by the husband, on the 11th of February, 1809, has been assailed on several grounds. It is stated to be a nudum pactum, without any consideration to support it; and that it was never accepted by the trustees, to whom the deed was made. It is further urged, that it was never duly delivered, but was retained by the husband, without any intention to deliver it; and that it was, therefore, never executed, in point of fact, or in contemplation of law. I am inclined to the opinion, that this is the proper and necessary conclusion, from a view of the testimony in the case. But I have not thought it material, to enter into a critical examination of the proofs on this point, as to the delivery of the deed, in order to illustrate and confirm that opinion ; for, assuming it to have been duly executed, and for a valuable consideration, it does not afiect the claim of the plaintiff.
The covenant was made with two trustees for Catharine Hopkins, with whom the marriage was intended; and it recited, that “it was his wish and intention to secure to her her real and personal property, so that she might as fully enjoy, it to all intents and purposes, after *248marriage as before. He, therefore, covenanted "with the two trustees, that his wife, during coverture, should have to her own use all the personal property belonging to her at jler marriage, or which might come to her during coverture, by devise or otherwise, and that she might convey away the same, according to the forms of law, by testament or otherwise; and that, during coverture, she should enjoy the right of dower in the estate of her former husband, and the rents and profits of any real estate to which she might be entitled, as fully as if she had remained sole, he thereby releasing all his marital rights in and over the same, and covenanting to make other assurances, to carry more fully into effect the intent of the covenant.”
The whole of the provisions in this instrument, refer to the use and enjoyment of her property by the wife during coverture, and to her exercise of power over it. There is no provision for the disposition of the property after her death, other than a power of disposition given to the wife, which in this case she never exercised. At her death, the covenant had fulfilled its object, and its provisions were exhausted. The succession to that property remained precisely as if no such covenant had been made. Nothing can be clearer to my mind than this construction and operation of the covenant. The words, at the latter end of it, releasing all his marital rights in and over the same, refer to, the immediate antecedent provision, relative to the rents and profits of her real estate, according to the maxim, idem semper antecedenti proximo refertur. And if that release was to be construed to apply to every part of the covenant, it could have no greater operation and effect than the provisions in the covenant, and ought to be construed to be only a release of his marital rights during coverture. If A. was to give to B. a lease for life of a farm, with all the powers and privileges incident to a lease for life, and was to add, at the end of the lease, a release of all his powers and privileges to the same, the release never could be *249construed to bar tils interest in the reversion. The whole instrument would be taken together in ascertaining the construction to be given to the release, and it would strike every one as manifestly unreasonable and unjust, to give to the release a greater and more extended operation than the interest which had been previously created, and to which it applied. It would make the instrument inconsistent and repugnant with itself. It appears to me, therefore, that the right of the husband as survivor, and of the plaintiff as his executrix, to the bank shares standing in the name of his wife at her death, rests upon solid grounds of law, clear and unaffected by either of the ante-nuptial instruments, Which have been set up by the representative of the wife.
There are other views of this subject, which have been taken by the counsel, that are not destitute of interest, but on which I need not dwell. The stock in question, was purchased by the husband in the name of his wife, with • money belonging to her, which had come to his possession, at a time when there was no subsisting or acting trustee under her settlement, and before there was any pretence of an actual delivery by the husband of his covenant. It is difficult, therefore, to perceive how the money or stock could be affected by either of those instruments. There is, also, much weight of argument against the admission of the claim by the administratrix de bonis non, from the fact, that during the joint lives of the husband and wife, the dividends on the stock were received by the husband, and after her death, by him, for upwards of three years, as her administrator, and applied to his own use, without any objection on the part .of her next of kin. An acquiescence to that extent, is entitled to great consideration, in a case accompanied with the present circumstances. But I think it unnecessary to press these difficulties into the case, for it is sufficient to say, that neither of these ante-nuptial instruments constitute a bar to the claim of the plaintiff.
I shall, accordingly, declare, that those instruments do *250not furnish any valid and sufficient objection in equity, to the right of the plaintiff, as the executrix of the husband, to the stock in question ; and that the defendant, as administratrix de bonis non of the wife, holds the same as trustee for the plaintiff, as the legal representative of the husband; and I shall direct the shares to be transferred to the plaintiff, and the dividends in arrear paid to her, and that the costs of the defendants, respectively, except the costs arising on taking the suppressed testimony, and including the costs of the directors of the Bank of America, as well as the costs "of the plaintiff, be paid out of the fund.
Decree accordingly.