executor in his own right; (a) for we find it laid down, in Off. Ex., 295-297, that administration by the husband, in such case, binds the wife, and that without her consent. So, too, a gift or release, by him alone, is good. (b) So, too, it was held by the court, that a man, possessed of a term for years, in right of his wife as executrix, had power to convey the same. (1) (a) Godw., 110. (b) 3 Wils., 277; 2 Bl., 801. v. Miller, 3 P. Wms., 441. Such was the civil law, Cooper's Justinian, 102, 103 with reference to gifts causa mortis and gifts inter vivos. With respect to the extent to which such gifts of personal property will be permitted, the following extract from the very able note of REDFIELD, J., appended to the case of Meach v. Meach, 24 Vt., 600, presents a clear and comprehensive view of the present state of the law, as it respects its interference with the statute of wills, and the extent to which the Courts have deemed it advisable, and within their power to go, to control such interference. The learned judge remarks that, though as far back as the times of Justinian, efforts were made to limit the operation of such gifts, having been required to be made in the presence of five witnesses, and not to amount to the disposition of more than three-fourths of the donor's estate, if to the prejudice of the heirs; yet that, it still "maintains its hold upon the jurisprudence of most of the European States, and is evidently a good deal extending its operations in the American States." And with respect to the statute of wills, "one cannot but feel that it was never properly intended to apply to a general disposition of a large estate, to the utter subversion of the statute of wills; and still, when we attempt to limit its operation, we encounter embarrassments not readily disposed of." Reference is made to the case of Moore v. Darton, 7 Eng. Law & Eq. R., 134, where the Vice-Chancellor, apparently without hesitation, sustained the remission of a debt of £500, made by simply giving a receipt for the debt to a third person (a servant attending the deathbed) expressing, in brief terms, the desire that, the debt should be canceled, to show that, it has not been limited to small or trifling amounts. It would appear further, that, no cases are to be found, except a case in Pennsylvania, "where any attempt has been made to limit its operation, on account of the comparative or absolute extent of the property disposed of." To establish a principle of limitation, which shall be applicable to all cases, appears to the learned judge, to be a work of insuperable difficulty. Where A, a few days before his death, and in his last sickness, deeded to his sister a farm on which she and her husband had resided for some years previous, and still resided, and at the same time told her, that there was personal property on the farm, naming some of it, that would be of no use to him, but might be to her, and that he would give it to her, the farm and personal property then being 14 or 15 miles distant, it was held, that this was not a valid gift causa mortis. Huntington v. Gilmore, 14 Barb., 243. (1) If a married woman be executrix or administratrix, the husband has a joint interest with her in the effects of the deceased, such as devolves the administration [*193] *In Wentworth's Office of Executors, 200, it is said. that, when the wife has debts due to her, she cannot, by making an executor, deprive her husband of the benefit that might accrue to him by being administrator. But it is otherwise of goods which she holds as executrix; for no benefit could accrue to him in that case, for they go to the next of kin of the wife's testator. It seems to me that the soundness of this doctrine, as expressed in the first clause, is very questionable; for the husband's right, secured by the statute, is no other than the right of a statute residuary legatee, after debts are paid. If there be no will, it certainly is not a marital right at common law. If the wife, before marriage, commits a devastavit, the husband, during the coverture, is liable. (a) If the devastavit were committed after marriage by husband and wife, it would be natural to suppose that the husband would be liable, after the death of the wife; but we are taught that he would not, unless judgment had been obtained against both, during the coverture (b) Where a recovery is by husband and wife, in right of his wife as executrix, and the wife dies, nothing survives to the husband, for the judgment belongs to the administrator, de bonis non, of her testator. (1) (a) Cro. Car., 603; Moor, 761. (b) Cro. Car., 519; 2 Ver., 118; Sid., 337. on him, and enables him to act with regard to it for all purposes, with or without the consent of the wife. Ld. Raym., 369; Com. Dig., Adm'r, D; 1 Salk., 30; 4 Term Rep., 617. It is therefore held, that he may surrender or dispose of a term which was vested in her in the capacity of executrix or administratrix, and such surrender or disposition shall be binding upon her. H. Bl. Rep., 810. So a gift or release of any part of the personal property of the deceased, by the husband alone, shall be equally available. Salk., 117. But the wife has no right to administer without the husband; and such acts as have just been mentioned, if performed by her without his concurrence, will be of no validity. Salk., 306; Went. Off. Ex., 207, 208. Should the husband die, the interest never having been divested, will survive to her; but if she die, it will not survive to the husband, for it belonged to him merely in her right as representative of the deceased. Went., 208; Com. Dig., tit. Baron and Femme; 1 Dyer's Rep., 331. It then follows, of course, although in some cases the wife may not make a will, that she may, by a writing in the nature of a will, continue the executorship, with respect to the property thus vested in her en autre droit, without the assent of the husband. 2 Bl. Com., 408; Off. Ex., 189; 3 Bac. Abr., 10. (1) King v. Holton, Cro. Car., 603; see, also, Gratz v. Philips, 1 Penn. Rep., 333; The authorities, as to her power over the property, appear to me to be wholly irreconcilable. It is stated, in the Office of Executors, 294, that a femme covert may administer, with the consent of her husband: in the same book, 293, that refusal by the husband that she should administer is of no avail. It is also stated, in Perkins' Grant, 7, that a femme covert executrix may administer without her husband. It is laid down in 2 Wms. Abr., 319, in a case from H. Bl., 334, that a femme covert may act in auter droit, as executrix, without her husband; and the [*194] court seems to recognize the doctrine that she may administer and prove the will, notwithstanding the refusal of the husband. On the other hand, we find it laid down, in Off. Ex., 297, that a wife, without her husband, cannot dispose of the testator's goods, nor release a debt, without payment. (a) This seems to imply, indeed, that she can, where there is a payment. In Off. Ex., 203, it is laid down as good law that the wife could not take upon her administratorship without the consent of her husband. In 3 Wilson, 277, we find the doctrine that the wife cannot administer without the consent of the husband. (1) (a) 1 Salk., 306. Chaplin v. Simons, 7 Monr., 339: see, also, Knox v. Picket, 4 Desaus. Ch. Rep., 92; Moore v. Henderson, id., 459. If an executrix marry, and she and her husband, on being sued by a creditor in equity, admit assets, the assets become a debt due from the husband, and may be proved under a commission of bankruptcy against him. In re McWilliams, 1 Scho. & Lef., 172. It may be doubted whether it is necessary to obtain a judgment against husband and wife, during coverture, for a devastavit committed after marriage, in order to hold the husband after the death of the wife. If the doctrine is well founded, that the husband becomes, on the marriage, vested with all the powers of his wife executrix, and she cannot exercise any of them without his consent, why is not the devastavit that of the husband alone? In one American case it is directly decided that the husband is responsible, after the death of the wife, for the correctness of her fiducial conduct during the marriage. Phelps v. Richardson, 4 J. J. Marsh., 215. (1) The weight of the authorities cited in the text seems to be against the power of the wife to administer without the consent of her husband, and such, also, is the opinion of an eminent writer on this branch of the law. Toller on Executors, 31; and Bac. Abr., tit. Executors and Administrators. OF DULY CELEBRATING A MARRIAGE; AND OF THE AGE TO CON- ALL well-regulated governments require that the contract betwixt the sexes to marry should be duly celebrated; and, until there has been a celebration of the marriage, there is not, in point of law, a husband possessed of any marital rights, or a wife who is entitled to the privileges of a wife: That is, if A and B agree to marry, but never do, although they live together as man and wife, A gains no right to the person or property of B; neither would B, on the death of A, be entitled to dower, or any advantages in A's estate. Previous to the Reformation, the business of celebrating marriages had fallen into the hands of the clergy, under the idea that marriage was a sacrament, the managing of which exclusively belonged to ecclesiastics. At the Reformation, the doctrine that marriage was a sacrament was considered by the Reformers not well founded; but the clergy of the Church of England continued, as officers, to celebrate marriages. It is plain they could not do it by virtue of their clerical character, as they preached the gospel and administered the sacraments; but, being undisturbed in this practice, sanctioned by constant usage, it was considered the common law of the land that a marriage could be duly celebrated by those only who were infra sacros ordines; and thus it remained until the establishment of the commonwealth in England, when parliament enacted a statute declaring that marriages * should be celebrated by a justice of the peace. At the [*196] restoration of kingly government, under the reign of Car. II, the clergy were restored to their office of celebrating marriages; and, by 26 Geo. II, a statute was passed, regulating this subject, in which it was enacted that all marriages, had contrary to the requirements of this statute, were absolutely void, to all intents and purposes, with some particular exceptions. There is nothing in the nature of a marriage contract that is more sacred than that of other contracts that requires the interposition of a person in holy orders, or that it should be solemnized in a church. Every idea of this kind, entertained by any person, has arisen wholly from the usurpation of the Church of Rome on the rights of the civilian. She claimed the absolute control of marriages, on the ground that marriage was a sacrament, and belonged wholly to the management of the clergy. The solemnization of marriage by a clergyman was a thing never heard of among primitive Christians, until Pope Innocent III ordered it otherwise. The only ceremony in practice among them was, for the man to go to the house where the woman resided, and, in the presence of witnesses, to lead her away to his own house. It is a mere civil transaction, to be solemnized in such a manner as the legislature shall direct, whether by a clergyman or any other person. Moor, 170. (1) (1) The doctrine that the contract of marriage rests upon the same footing as any other contract, so far as its valid inception is concerned, is probably the doctrine of both the common and civil law. The consent of parties, without any peculiar forms or ceremonies, is all that is required to its valid celebration. The Roman lawyers (says Ch. J. KENT, 2 K. C., 89), strongly inculcated the doctrine that the very foundation and essence of the contract consisted in consent, freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse constabit. Nuptias, non concubitas sed consensus facit. The common law requires no ecclesiastical sanction to render it valid, and considers it merely in the light of a civil contract. If it be made per verba de præsenti, and is not followed by cohabitation, or per verba de futuro, and followed by consummation, it amounts to a marriage, which the parties cannot dissolve, if they are competent as to age and consent, and is just as binding as though made in facie ecclesiæ. This is the established doctrine of the common law, and, subject to certain statute qualifications, has been adopted by most, if not all, of the United States. Bunting v. Leppingwell, 6 Coke's Rep., 29; Jesson v. Collins, 6 Mod. Rep., 155; S. C., 2 Salk. Rep., 447; Milford, Inh. of, v. Worcester, Inh. of, 7 Mass. Rep., 48; Fenton v. Reed, 4 John. Rep., 52; Jackson v. Winne, 7 Wend., 47; Hantz v. Seeley, 6 Binn Rep., 405; Mount Holly v. Andover, 11 Vt. Rep., 226; State v. Rood, 12 id., 396; and see note 1, page 310. It was held, in Caujolle v. Ferrié, 26 Barb., 177, that marriage is complete when there is a full, free and mutual consent by parties capable of contracting, although not followed by cohabitation. But a contract to marry, per verba de futuro, though followed by cohabitation, when they did not cohabit as husband and wife or hold |