There can be no doubt that the complainants in this case are entitled, upon the general rule, to an account at the hands of the defendants. The bill was filed by William Donnington-, in his life-time, as administrator of his wife, for an account of her personal estate. He died, and the complainants have obtained letters of administration of the husband’s estate, and also, de bonis non, of the estate of his wife. On the death of a wife the husband may administer on her estate, and in that character take to himself, for his own benefit, jure mariti, *247all her personal property; and in case he dies before he shall have fully administered on such estate, his representatives are entitled to the property. If letters of administration upon the wife’s estate are granted to the next of kin of the wife, they are deemed as trustees only for the representatives of the husband. Elliott v. Collier, 3 Atkyns, 526; Watt v. Watt, 3 Ves. jun. 244; Stewart v. Stewart, 7 Johns. Ch. 229 ; Squib v. Wyn, 1 P. Wins. 378; 2 Kent’s Com,. 135. All the cases agree on this subject, and as a general rule it was not denied on the argument. It has indeed been made a question, not whether the husband is entitled to the separate estate of his wife, but in what character, whether as next of kin of the wife, or as husband. If he be entitled, it is not of much importance to discuss in which of these characters he takes. The better opinion, however, certainly is, that he takes as husband ; for, strictly speaking, he cannot be said to be of kin to the wife. This subject, with a reference to the cases, will be found fully discussed and settléd in the case just cited from 7 Johns. Ch. 229.
But this rule, it is equally clear, must and will be controlled by any legal instrument which shall make a different disposition of the wife’s estate. Prior to his marriage, the complainants’ intestate and his wife did enter into articles respecting her separate estate, and the whole case turns upon the true construction of that instrument.
The father of Mrs. .Donnington died a few years prior to her marriage, and left to his family, consisting of his wife and two children, a very considerable estate. The marriage agreement was signed by these parties just before their marriage;, and while there are some general expressions in it which look like a total abandonment of all claim on the part of the husband to any interest in the estate, yet it manifestly was intended to guard against the husband and his creditors only during the coverture. There is no disposition made of the property in the event of the wife’s death before her husband, but that is reserved for the future appointment of the wife, and she died without making any such appointment.
*248The instrument is dated on the 18th day of December, 1880, the day before the marriage was solemnized ; and after stating that Nathaniel Mitchell died intestate, leaving certain real estate, which is therein described, to his family, as well as personal property, which had never been divided,- and that a marriage was about to be solemnized- between the parties, it was further recited, that William Donnington, the intended husband, had agreed that if the marriage should take place, then, notwithstanding the marriage, the said William Donnington, his executors, ad- . ministrators or assigns, should not intermeddle with or have any right, or title,- or interest in the same, (using very strong word's,) but that the same should remain to his intended wife, or to such uses as should be therein afterwards expressed. The said Wil- ' liam Donnington covenants that all the said estate shall be reckoned and1 taken as a separate and distinct estate, and be no way liable to him-or to the payment of his debts, but shall be disposed of as therein-after mentioned. Caroline M-. Mitchell, the intended wife, then conveys all her estate to her mother upon certain trusts, and it is to these trusts that we are' especially to look. The whole instrument, as- well in-the recital as the covenants on the part of the husband-, point to these for the future direction of the estate. -By this trust it is declared, that all the said estate, ' and the income thereof, shall go to such persons, and for such uses, as the said intended wife shall at any time during her life direct, either by her last will and testament in writing duly, executed according to law, or by any other writing whatever signed with her hand in the1 presence of two or more witnesses. The disposition- of the property after the wife’s death, remained to be made by the wife, either by will or other writing, and none such was ever made. Who, then, is entitled to the personal estate — -for that alone can be the subject of enquiry here — the next of kin of the wife, or the husband 1 The wife has an estate in the hands'of trustees,, undisposed of. It belonged to her at her Meath, and must, in the absence of any disposition of it,go to her husband. The rights of the husband, it will- be seen, are not suffered to be taken away, unless by express terms, and *249liis rights are as complete in property placed in trust as in any other. The case of Stewart v. Stewart, in 7 Johns. Ch. 229, before cited, is very much like the present, and it was held to have been only a provision during covertute, and that the husband was entitled, at the death of the wife, to the estate. That was a conveyance to trustees, subject to the future disposition of the wife by will or other writing, and no such writing was ever executed. There were in that case two important facts mili tating against the construction placed upon the writing by the court, which do not exist here. The recitals declared that the intended wife desiied to provide for herself and her children, but this was not in the granting part of the deed, and further, the husband released all his marital rights over the property. See also on this subject, Clancy on Right of Women, 11, and 626, note D.; Bailey v. Wright, 18 Vesey, 49; Hawkins v. Hawkins, 10 English Cond. Ch. Rep. 2.
It would have been very e ;¡: Síí $ e n t i o n of the parties, to have declared the trus^B=^®)Wí»íi*t4íe next of kin, or in some other manner to have shown a determination to exclude the husband. No such trust having been declared, nor indeed any disposition whatever made of the property after the death of the wife, 1 can consider this instrument only as a provision during coverture, leaving the rights of all parties, on the death of the wife, to be settled by the law. It leaves the estate as if no settlement had been made.
Some objections were stated on the argument to the settlement, which did not, I confess, strike me as being well founded ; but it is unnecessary to examine them, because, taken as a valid deed, it no way, in my opinion, impairs the rights of the husband.
I shall direct an account to be taken by a master, of the personal estate of the wife, and of the rents and profits of her real estate to the time of her death.
Order accordingly.
[An appeal was taken by the defendants from the decree in this cause, which is still pending undecided.1