#### James Russell, Administrator &c. *versus*Nathan Brooks. Same *versus*Same.

Where a husband lived in a different town from his wife, and in adultery with another woman, but occasionally visited his wife, and afterwards died insolvent, it was *held,*that his administrator was entitled to recover money received and promissory notes taken by the wife, previous to the death of the husband, in a trade carried on by the wife separately.

The *first*action was *assumpsit*for money had and received to recover the amount of money which had come into the bands of the defendant as administrator of Eleanor Swan.

The plaintiff claimed it as administrator of Joshua Swan, the husband of Eleanor.

At the trial, before *Morton*J., it appeared, that after their marriage, Joshua and his wife lived together in Lexington until the year 1815, when Joshua removed to Boston. He resided in Boston until some time in the year 1818, when he went to the State of Georgia. He returned to Boston in 1819, and after a short stay, went to Alabama, where he died in August, 1821. While residing in Boston from 1815 to 1818, he lived in adultery with a woman there, but passed Sunday with his wife at Lexington as often as twice a month. He became insolvent in the year 1819. For many years before their separation, Joshua and his wife were engaged in manufacturing articles of fur, but some time before the separation he entered into a different kind of business, and the former business, in which the property claimed in this action was acquired, was continued by the wife until the death of the husband. In 1818 the wife lent 300 dollars, for which three notes were given, payable to Francis Bowman or bearer. These notes were paid a short time before the death of the wife. This money, with some small sums received as interest on similar notes, amounting to 438 dollars, was in the wife’s possession at the time of her decease, and came into the hands of the defendant as administrator.

In 1815 the wife put into the hands of one Bridge 1000 dollars, with directions to invest the same in seven ner cent. *70stock, which he did, taking the certificate in his own name When he received the interest, he paid it over to the wife ; and when the United States paid off this stock, he received the amount; which since the death of the wife he paid over to the defendant. The defendant objected, that Bridge was not liable to be compelled to testify to these facts ; but the objection was overruled.

*Oct.*1827.

The husband left no property at his death, except what was in the hands of the wife, but was indebted upon judgments to the amount of 310 dollars, and upon bills of exchange to the amount of 4488 dollars. These bills were purchased at a discount by Bowman, who had been the agent of the wife, after her death and just before administration was granted to the defendant.

The jury were instructed to return a verdict for the plaintiff for such sums as were paid upon securities given in the life time of the husband and had come into the hands of the defendant ; to which instruction the defendant excepted. The jury returned a verdict for the plaintiff; but if the instruction was wrong, or if the testimony of Bridge was improperly admitted, a new trial was to be granted.

The *second*action was *trover*for certain articles of house hold furniture and certain promissory notes. This property had been acquired by the wife after the separation, except a part of the furniture.

The jury were instructed to find a verdict for the plaintiff for all the articles which were in possession of the wife at the time of the death of the husband and which had come to the defendant’s hands since her death. A verdict was returned accordingly. The defendant excepted to the instruction.

*Hoar*and Brooks, for the defendant,

said that the property in question had been acquired by the wife trading for herself, as well by the express permission of the husband (as appeared by the deposition of Bridge), as by permission implied from his living in adultery with another woman; and that her administrator was entitled to retain it, or at least so much of it as was not wanted to satisfy the judgment debts. They cited *Planning*v. *Style,*3 P. Wms. 337 ; *Mangey*v. *Hungerford,*2 Eq. Ca. Abr. 156, *in marg.;*2 Roper’s Hush, and Wife, *71167 ; *Cecil*v. *Juxon,*1 Atk. 278 ; *Draper*v. *Jackson,*16 Mass. R. 480 ; *Philliskirk*v. *Pluckwell,*2 Maule & Selw. 393 ; Nun v. *Wilsmore,*8 T. R. 521 ; *Weller*v. *Baker,*2 Wils. 423 ; *Lavie*v. *Phillips,*3 Burr. 1779 ; *Dumond*v. *Magee,*4 Johns. Ch. R. 322.

*April term*1828.

*Stearns*and *Russell, contra,*

said it was not shown that the husband had renounced his marital rights, and therefore the property acquired by the wife before his death was his property. 1 Dane’s Abr. 336, 344; *Shuttlesworth*v. Noyes, 8 Mass. R. 229; *Barlow*v. Bishop, 1 East, 432 ; *Lamphir*v. *Creed,*8 Ves. 599 ; *Clayton*v. *Adams,*6 T. R. 604; Bac. Abr. Baron and *Feme, D;*2 Roper, 109 ; Bayley on Bills, 35 ; Com. Dig. Bar. and *Feme, W; Abbot*v. *Blofield,*Cro. Jac. 644 ; *Rawlinson*v. *Stone,*3 Wils. 5; *Palmer*v. *Trevor,*1 Vern. 261.

The Court held in the action of *assumpsit,*that the husband was entitled to the earnings of the wife before his death.

In the action of *trover,*they said the property of the chattels was in the husband at the time of his death, and the defendant having refused to deliver them to the plaintiff on demand, converted them to his own use.1

*Judgment on the verdicts.*

1

 Where a husband, immediately after the marriage, deserted his wife and married another woman, and never returned to his wife or contributed in any manner to her support, it was held that personal property, acquired by her during such desertion, became her separate estate, which she might dispose of by will or otherwise. , *Starrett*v. *Wynn,*17 Serg. & Rawle, 30.

A wife may become a sole dealer or trader, by permission of her husband, even without deeds; and she becomes entitled to all her earnings as her sep arate estate. *M‘Grath*v. *Robertson,*1 Desaussure, 445. See *Gore*v. *Sumersall,*5 Monro, 512; *Keith*v. *Woombell, 8*Pick. 211; *Commonwealth*v. *Manley,*12 Pick. 17C