
    *Wm. Spann v. Wm. Stewart, Sarah G. Wright, and others.
    Where administration was granted to husband and wife in right of the wife, and the administration bond was signed by both, the wife is not bound by the bond; and after the husband’s death, she is not liable for his devastavit during the administration; and so much of the estate as remains unchanged is subject to partition between the wife and the other distributees, the wife’s interest therein surviving to her. But as regards such part of the estate as the husband had wasted, the wife is not entitled to a share thereof — and on a bill filed by the security to the administration bond,'against whom a judgment at law had been obtained for the whole estate, relief was granted to this extent, and credit given . him on the judgment for her share of so much of the estate as had been wasted. [*38ü] '
    
    This case was heard before Chancellor Johnston, at Sumter, February, 1833. It presented the following facts — Sarah E. Screven married Dr. Thomas W. Wright, prior to 1824. About that year her mother, A. Screven died intestate, leaving Sarah E. Wright her only surviving child, but leaving grandchildren, and possessed of a considerable personal estate, consisting of Bank stock, slaves, furniture, &c., to one-third of which Sarah E. Wright was entitled, as distributee of her mother. On the 9th day of January, 1824, letters of administration were granted to her and her husband, and the administration bond was signed by her as well as her husband, with the plaintiff as security.— Wright, in February, 1824, sold the bank stock, furniture, &c., and received the money, which amounted to $3,800 including interest. Dr. Wright died about the year 1825, intestate, and on the 17th February, 1826, administration de bonis non was granted to the plaintiff Stewart. He obtained a decree against J. Mayrant, jun., administrator of Wright, for the whole of A. Screven’s estate, and after exhausting Wright’s estate, a considerable balance remained unsatisfied. To recover this balance, suit was brought at law, against Spann, the security of the administration bond, and judgment obtained, on the plea of non est faclvm— Before any writ of inquiry was executed, this bill was filed to restrain Stewart from proceeding at law, and to subject Sarah E. Wright, to the demand, in exoneration of her security.
    On the hearing, the plaintiff’s counsel conténded,
    1. That Sarah E. Wright was bound for all acts done during coverture, respecting the administration, whether done by herself or her husband, and to indemnify the plaintiff to the whole extent, he being her security : or, in other words, that the plaintiff was entitled to credit, on the decree against the administrator of Wright, to the extent of Mrs. Wright’s distributive share of Mrs. Screven’s estate ; *and that a decree should go against her for the balance due on the administration, after exhausting Dr. Wright’s estate.
    2. If not entitled to a decree for this, then that the plaintiff should be indemnified by crediting or enjoining the administrator’s judgment, to an amount equal to the entire distributive share of Mrs. Wright, whether reduced into possession by the husband, or remaining in action at his death.
    
      3. Or, that he should be indemnified, by credit or injunction, for so much of her share as the husband had reduced under his marital rights; and that this extended to one-third of all the personal estate of the intestate, which he had converted into actual cash, or received in negro hire.
    4. Or, failing in this, that his indemnity should extend to all the interest which had accrued on one-third of the cash received by Dr. Wright, and the hire of the slaves of the intestate during coverture.
    The Chancellor decreed against all these claims, and dismissed the bill as to Sarah E. Wright, but retained it against Stewart, administrator de bonis non, till an account.
    The defendant appealed from this decision, and now moves this Court for a reversal of the decree, discharging Sarah E. Wright; and relies on the same grounds he took on the Circuit.
    
      Blanding, for the appellant,
    insisted on the following positions. 1st. That Mrs. Wright is bound by the administration bond. 2d. That if she is not bound by the bond, she is liable for the devastavits of that administration. 3d. That if not so bound, her third part of the estate had been converted by her husband to his own use by her consent, and she has no equity to call it back. 4th. The husband having received the interest and hire of her estate while he supported her, she cannot make his estate liable for the same.
    1. Mrs. Wright as only daughter of the intestate was exclusively entitled to the administration. 31 Ed. 3 C. 11; 3'Bac. Ab. 54, tit. Ex’or & Adm’or F. Raym, 498 ; P. L. 492, Sec. 16; and this right is so perfect that if the Ordinary refuse to grant it, a mandamus lies, 4 Bacon, Ab. tit. Mandamus, *D. Having the right she had the legal capacity, with the consent of her husband, to administer. 2 Roper Husb. and Wife, 97; and this consent being given, her right and legal capacity became perfect. It is admitted that the common law rule is that a feme covert cannot bind herself by bond ; but the Act of 1789, P. L. 493, declares that every administrator shall enter into bond with security, and differs herein from the British statute, 22 and 23 Cai\ 2 C. 10, 3 Bac. ab. 46, Exo’r and Adm’r, which merely requires that the Ordinary “shall take sufficient bond with security,” but does not direct from whom they shall be taken ; and hence it has been decided that the husband shall take the letters in the name of his wife, but give the bond himself. The husband has no right but through her, and if she refuse to administer, he cannot, and the right passes to the next of kin. Under our Act which requires every administrator to enter into the bond, either there can be no administration by the wife, although by law entitled to it and legally competent to act, or she must join in the bond. The last clause of the 16th Section of the Act of 1789 proves that it was not intended to deprive a feme covert of administration, for it provides, that where a widow administratrix marries, her letters may be revoked and one of the next of kin joined with her. A feme covert then, since the Act of 1789, may administer, and it follows that she may give a bond. And such has been the practice throughout the State, but especially in Charleston, where the Ordinary’s Office was first established, and filled by an eminent lawyer.
    The Chancellor, however, says, that the argument proves too much, that infants and idiots may administer. With deference be it said, there is a distinction in the cases — for an infant or idiot has not the legal capacity to administer, 3 Bacon Ab. 14, Ex’or and Adm’or, B. 3. Nor is there anything unreasonable in requiring a married woman to join in the bond, for she is always entitled to a part of the estate, and the question bad been agitated, whether she was not liable for the devastavit of her husband — whether the letters were granted before or after marriage. The Act settled the question, and at the same time gave the devastavit, which was but a tort, before the character of a specialty. And a good ^reason for requiring her to join in the bond, is that thereby the security is protected from being called on by her, for her estate wasted by her husband, with her own consent, and the bond, so far as the security is concerned, becomes the act by which her interest in the estate is vested in her husband, and cuts up the enquiry where there was that legal reduction into possession by which the marital rights would attach.
    2. But suppose the wife’s bond void — is she bound for the devastavits of her husband, who administered in her right with her consent ? In this view of the case, the Court must reform the bond by considering her name as stricken out of it, and the letters of administration, by striking out his. For if we are governed by the law of England, the letters should have been granted to her, and the bond given by him. The reason why she is liable for her husband’s devastavits is obvious. On his death she is sole administratrix ; persons having claims against the estate must sue her alone; and who would pretend that she could plead plene ad-ministravit, that her husband, as her agent in the administration, had consumed the whole estate ? If the demands are legal ones, she must be charged at law for the waste of her husband; if they are equitable, she must be charged in equity, as administratrix. Beyond'this it is admitted the legal and equitable creditors have a further claim : i. e. if she be insolvent, her husband’s estate may be charged, in equity, (not at law) with their demands, so far as his estate has been benefitted by the estate he has rendered insolvent. This is the clear legal reasoning, and it is supported by authority. See the whole doctrine stated in 1 Roper’s Husband and Wife, 193.
    No one can doubt as to her liability to creditors, whose claims are at law. But the complainant here represents the distributees of Mrs-. Screven, and, it is said, must come into equity, and that there a different rule may prevail. She survived her husband — administration had been granted with her consent — it survived, and she could not renounce it. Had the distributees filed a bill against her alone, charging her with the whole estate, could she reply that *the husband, acting in her right, had destroyed the whole estate, and that they must look to his estate ? Suppose to this it is answered, that his estate is insolvent, are the distributees without redress ? This is the case before the Court. The security to the administration bond has the right to stand in the place of the distributees, and whomsoever they can charge he can charge. This doctrine is laid down in Adair v. Mann, 1 Sch. & Lef. 251 ; 1 Hop. Husb. and Wife, 194.
    But it is said, that there is a distinction, and but three classes of cases must be regarded : 1st, where the wife administered dum sola. 2d, where the right accrued to her dum sola, and administration was granted during coverture. 3d, where the right and administration both arose under coverture. In the first case, no one ever doubted she was bound by the bond, and consequently bound to relieve her securities. In the two last cases, the distinction is without a difference — see Roper’s Husband and Wife, 193, 194. The case of Beynon v. Collins, 2 Brown C. C. 323, merely settled the question, whether Collins, the trustee in the settlement, having sold the settled estate and paid the money over to the husband, was liable to the wife on the husband’s insolvency. So that all that Lord Thurlow said on this point is extra-judicialor, as Lord Redesdale calls it, “a sort of dictum.” But this dictum is in accordance with Lord Redesdale’s opinion, and that laid down by Roper, who says that if her ¡administration by the husband is without the consent of the wife, and she ¡does intermeddle, on his death she may renounce. Bellew v. Scott, 1 .’Strange, 4+0, a return that the husband and wife wasted as executor and .executrix was held good, and the judgment was against both. All the .eases .show that she is administratrix during her husband’s life-time, and imay .continue so, whether she can renounce or not. What would be the .effect .of a renunciation ? Had a suit been brought in the husband’s life-itime, .the judgment would have been against both. Her renunciation, ■therefore, after his death, can have no other effect than to release her from the administration, not from acts already done.
    Has Mrs. Wright’s share of Mrs. Screven’s estate passed into the hands of her husband, with her consent, so that she cannot call it back from his security ?
    Spann was no party to any of the suits in which Mrs. Wright established her rights .against her husband’s estate, and as against his security •the case is the same .as if for the first time she was now making her claim ; and the plaintiff is .entitled to all the equities of the administration of her husband, and the ease will be argued as if she was now plaintiff against that administrator. He administered with her consent, and before the act of 1824, which renders void a sale by an administrator unless by the order of the Ordinary, he .converted all the estate by actual sale, into cash, except the slaves, and their hire he received, and there were no debts to be paid ; and this constitutes her claim against his estate. Can she call back her share of his estate from his administration ? If she can do it now, she could have demanded a settlement against him in his lifetime, and if it is an equity now, it was an equity then. Murray v. Elibank, 10 Yes. 90, the Lord Chancellor says, “the husband, when he .can, is entitled to lay hold of the wife’s property, and this Court will not interfere.” And Mr. Clancy, (page 122]) says “if.he has once acquired the possession of the property, although it should be of an equitable nature, .this Court will leave him in the full enjoyment of it.” So that the wife’s claim only attaches on that part of her personal estate which the husband can acquire in no other way than by suit in Equity. Now could not Wright have held his wife’s third part of this money? No suit in Equity was necessary, and in such suit he must have been both plaintiff and defendant. But again. — If the husband and wife, being administrators, and he does an act which amounts to a devastavit, it vests the legal estate in him. — So that Mrs. Wright, as administratrix, could not now recover the property. See Jones v. M’Neil, 1 Hill, 96 ; 1 Bos. & Pul. 293. In Arnold v. Bidgood, Oro. Jac. 318, the husband was possessed of a lease in right of his wife, executrix, which he sold, and it was held, that it passed to the grantee. See also 2 Black. Rep. 801. And so if the husband alter the nature of .the debt to the wife, executrix, *he alone may bring an action to recover it. See the cases collected in 1 Roper, Husband and Wife, 186. The debt due in this case was Bank stock, which the husband converted into money.
    4. The interest on Mrs. Wright’s third part of the estate, should be discounted. If she had filed a bill for a settlement, would the Court have ordered the interest to be settled ? 1 Roper’s Husband and Wife, 212.
    
      C. & W. Mayrant, contra,
    as to the first ground, contended, that a feme covert eanno't'execute a deed, and that her contracts are void in Law and Equity ; and cited and relied on the case of Edwards v. Spann, decided by this Court, in 1831; and 22 Car. 2, c. 10 ; 3, Bacon, Tit. Ex’ors & Adm’re, p. 6; Johnu John, 11 Yes. 531; 3 Bl. Rep. 620. As regards the liability of the wife, for the devastavit of the husband, they argued that the wife could not assent to the administration, and that she is not liable for a- devastavit unless she continues the administration after her husband’s death. 1 Sch. & Lef. 266. And on the question of reduction into possession, they insisted, that the decree against Wright’s administrator fixing the liability of his estate, concludes this question. On this question, they cited and relied on 2 M’C. Ch. Rep. 433 ; 3 Eq. Rep. 160.
   O’Neall, J.

We concur in opinion with the Chancellor, that the defendant Sarah E. Wright is not bound by the administration bond executed by her during coverture, and that she is not liable to account to the complainant for any devastavit committed by her husband, Dr. Wright, in administering- the estate of Mrs. Screven. The case of Edwards v. Spann, decided by this Court, May Term, 1831, is an authority directly in support of the Chancellor’s decision. We also agree with the Chancellor that the whole distributive share of Mrs. Wright in the estate of her mother, could not be considered as reduced into the possession of her husband during coverture. So much of the property of Mrs. Screven at the death of Dr. Wright as remained unchanged, was *liable to be partitioned between Mrs. Wright and the other distributees; her share or interest in it, was therefore an equitable chose in action which survived to her. The cases referred to by the Chancellor, and the cases of Schuyler v. Hoyle, 5 John C. R. 196; Blount v. Bestland, 5 Ves. 515; Wildman v. Wildman, 9 Ves. 174, and Baker v. Hall, 12 Ves. 497, fully sustain this position and conclusion.

But we differ with the Chancellor, in his conclusion that the complainant, the security of the administrator, is liable for the share of Mrs. Wright of that portion of her mother’s estate which was wasted and consumed by her husband. It seems to me that when the estate of an intestate is sold, and converted into money or notes and' obligations to the administrator for the proceeds, that so far as his wife may have an interest in the property thus changed, it is to all interests and purposes a reduction into possession. The money, or notes or obligations into which it is converted, is at law his own ; in equity, when they could be traced in specie, and the administrator was dead or insolvent, they might be followed at the instance of a creditor or a distributee who was a stranger to the administrator, as assets of the estate. But this is the utmost extent to which Equity could go in preserving the proceeds as the estate. The instant they cease to be capable of being traced, the administrator’s liability to account for them is all which can be looked to by either creditors or distributees. Could the husband during coverture have been compelled to account for his wife’s interest in the fund which he had wasted ? I apprehend he could not. For he had the right to receive it as husband, or even release it. If he could not be compelled to account for it, and having the actual possession, it is plain that there was nothing to survive to the wife in this respect. Her right pro tanto had been consumed, and consequently reduced into possession by the husband.

But be this view correct or not, and I think it is, both on reason and on the authority of the cases of Hix v. Cox, Marsh & Nail, and Spann v. Jennings & Spann executors, decided by this Court, (ante, 324,) still the complainant is not liable *for Mrs. Wright’s share of that part of the estate of her mother which was wasted by her husband, Dr. Wright. No case can be found in which the wife was held to be entitled to have an account from her deceased husband’s representatives for so much of her choses in action as were received by him and wasted : the utmost extent of her rights by survivorship is to the undisposed residuum. This was the case in Schuyler v. Hoyle, and Baker v. Hall. The fact that the husband is the administrator, and acting in a trust capacity, cannot alter the case. His devastavit arises, it is true, from his powers as administrator, but it is a personal wrong for which he is personally liable. It is the conversion of the testator’s or intestate’s goods and chattels, rights and credits to his own use. This is wrongful, as against the creditors and distributees, over whose rights he has no control. But over the rights of his wife, in action, he has the right to reduce them into possession, and as against her there can be no devastavit; for he has the right to receive her interest and apply it as his own. If Dr. Wright is not liable to account for the devastavit committed, so far as his wife’s interest in the same is concerned, it follows that the complainant is entitled so far to the relief which he seeks. For as security he is liable as far, and no farther, than his principal.

It is ordered and decreed, that the Chancellor’s decree be so far modified as to allow the complainant credit on the judgment recovered against him in the name of the Ordinary on the administration bond, for Mrs. Wright’s one-third part of so much of the personal estate of Mrs. Screven as was consumed and wasted by her husband, Dr. Wright, and in all other respects that his decree be affirmed.

Johnson and Harper, Js., concurred. 
      
       Not reported.
     
      
      
         The only property remaining unchanged was the negroes; and according to the doctrine of Spann v. Jennings (ante, 324) the marital rights would have attached on them if the wife had been solely entitled to them — the grounds of distinction between that case and this being that there the wife was solely entitled to the estate, and here jointly with others, and that here there was administration by the husband, whilst there there was none. R.
     
      
       Not reported.
     