mit." The court found upon examination of the will in question that it was apparent that its primary purpose was to provide for the widow and unmarried daughters of the testator by giving them the use of the entire estate during the widow's life, and that therefore the fact that his will contained an invalid direction or disposi. tion as to what should be done with the property or its income after the death of the widow did not prevent the court from giving effect to the testator's intention respecting the use of the property during her life. The circumstances of this case and the conclusions reached therein are substantialy identical with the circumstances and conclusions of Culross v. Gibbons, 130 N. Y. 447. Numerous other cases might be cited all affirming that when a disposition is made of property to be used by designated persons during their lives or for their support during their lives, and the provisions made for the disposition of the property thereafter are invalid, that the court will presume that it was the primary object of the person making the attempted disposition of the property to provide for its beneficiaries during their lifetimes, and that this object was in no way connected in his mind with the subsequent disposition of the property, and hence that the invalidity of such disposition cannot affect the preceding and valid estates or interests: Brown v. Richter, 76 Hun, 469; 27 N. Y. Supp. 1094; Mulry v. Mulry, 89 Hun, 531; 35 N. Y. Supp. 618; Finch v. Willis, 17 Misc. Rep. 428; 41 N. Y. Supp. 227.

GERNERD V. Gernerd.

[185 PENNSYLVANIA STATE, 233.]

HUSBAND AND WIFE-ACTION BY HER FOR THE ALIENATION OF HIS AFFECTIONS.-Where a wife has been freed from her common-law disabilities, and may sue in her own name and right for torts done her, she may maintain an action against one who has wrongfully induced her husband to leave her.

HUSBAND AND WIFE-ACTION BY WIFE AGAINST FATHER OF HER HUSBAND FOR ALIENATING HIS AFFECTIONS.-A father has the right to advise his son, and, if he acts with proper motives and in good faith in doing so, cannot be regarded as an intermeddler; but a father who, maliciously and with a view to separating his son and the latter's wife, aids, advises. and assists, and by promises or threats, procures his son to leave his wife, is liable to an action by her.

STATUTE OF LIMITATIONS IN ACTION FOR ALIENATION OF HUSBAND'S AFFECTIONS.-Though a husband is procured to desert his wife by words spoken of her by his father, her action for the injury thus sustained by her is not in form and substance an action of slander, and therefore is not barred by the statute of limitations applicable to actions for that offense.

Action by a wife to recover damages for wrongfully inducing her husband to separate from her. The defendant was the father of the plaintiff's husband. The evidence tended to prove

that the defendant, by constantly disparaging plaintiff and exhibiting an unfriendly manner toward her, and by threats, and perhaps by promises, induced the son to leave her. The de fendant called the plaintiff offensive names, indicating that she was uncleanly, unfit to have been married by a decent person, incompetent to perform household duties, and that she was Irish and was also a glutton and a negro. The trial court refused to give any of the instructions asked for by the defendant, and on behalf of the plaintiff instructed the jury that: "A wife may maintain an action for the loss of the society, consortium, companionship, aid, and assistance of her husband, against one who wrongfully and maliciously, wickedly, and unjustly induces and procures, advises, aids, and assists her husband to abandon her or drive her away," and that if the jury find that the defendant "maliciously, wrongfully, wickedly, unlawfully contrived, with the express purpose the plaintiff and her said husband to separate in their domestic relations, and to deprive the said plaintiff of the care, society, aid, and companionship of her said husband, and did advise, aid, and assist, and by promises and threats, procure and cause the plaintiff's husband to become alienated in feeling and affection, and caused the said husband to leave plaintiff and refuse to live with her, then the plaintiff is entitled to recover." Verdict for plaintiff for two thousand five hundred dollars, of which five hundred dollars were afterward remitted. The defendant appealed.

R. E. Wright and Evan Holben, for the appellant.

Edward Harvey and E. J. Lichtenwalner, for the appellee.

236 FELL, J. The right of a husband to maintain an action against one who has wrongfully induced his wife to separate from him seems not to have been doubted since the case of Winsmore v. Greenbank, Willes, 577, decided in 1745. The right of a wife to maintain an action for the same cause has been denied, because of the common-law unity of husband and wife and of her want of property in his society and assistance. There was certainly an inconsistency in permitting a recovery when her husband was a necessary party to the action, and she had no separate legal existence or interest, and the damages recovered would belong to him, but the gist of the action is the same in either case. There is no substantial difference in the right which each has to the society, companionship, and aid of the other, and the injury is the same whether it affects the husband

or the wife. Where the wife has been freed from her commonlaw disabilities and may sue in her own name and right for torts done her, we see no reason to doubt her right to maintain an action against one who has wrongfully induced her husband to leave her. Generally, this right has been recognized and sustained in jurisdictions where she has the capacity to sue, notably in the cases of Bennett v. Bennett, 116 N. Y. 584; Foot v. Card, 58 Conn. 4; 18 Am. St. Rep. 258; Seaver v. Adams, 66 N. H. 142; 49 Am. St. Rep. 597; Westlake v. Westlake, 34 Ohio, 621; 32 Am. Rep. 397; Haynes v. Nowlin, 129 Ind. 581; 28 Am. St. Rep. 213; Warren v. Warren, 89 Mich. 123; Bassett v. Bassett, 20 Ill. App. 543; Price v. Price, 91 Iowa, 693; 51 Am. St. Rep. 360; Clow v. Chapman, 125 Mo. 101; 46 Am. St. Rep. 468; Mehrhoff v. Mehrhoff, 26 Fed. Rep. 13. The New York and Indiana cases cited overrule the 237 earlier cases in those states in which a different conclusion had been reached. The only decisions in which we find the right denied are Duffies v. Duffies, 76 Wis. 374, 20 Am. St. Rep. 79, and Doe v. Roe, 82 Me. 503, 17 Am. St. Rep. 499. Of late years, the right of the wife to sue has generally been maintained by text-writers. It is said in Bigelow on Torts, 153: "To entice away or corrupt the mind and affection of one's consort is a civil wrong, for which the offender is liable to the injured husband or wife." And in Cooley on Torts, 228, note: "We see no reason why such an action should not be supported, where by statute the wife is allowed for her own benefit to sue for personal wrongs suffered by her." In Jaggard on Torts, page 467, many of the cases on the subject are referred to, and the conclusion is thus stated: "On the other hand, it has been insisted that in natural justice no reason exists why the right of the wife to maintain an action against the seducer of her husband should not be coextensive with the right of action against her seducer. The weight of authorities and the tendency of the legislation strongly incline to the latter opinion." The same proposition is stated in 1 American and English Encyclopedia of Law, second edition, page 166, and in 1 Bishop on Marriage, Divorce, and Separation, section 1358.

The defendant in this action was the father of the plaintiff's husband, and the case was one to be carefully guarded at the trial. The intent with which he acted was material in determining his liability. It was his right to advise his son, and in so doing in good faith, and with a proper motive, he should not be regarded in the same light as a mere intermeddler. A clear case of want of justification on the part of the parents should

be shown before they should be held responsible: Cooley on Torts, 265; Hutcheson v. Peck, 5 Johns. 196; Bennett v. Smith, 21 Barb. 439; Huling v. Huling, 32 Ill. App. 519; Tasker v. Stanley, 153 Mass. 148; Fratini v. Caslini, 44 Am. St. Rep. 850, note.

On the trial the plaintiff was held to distinct and clear proof that the defendant wrongfully and maliciously caused her husband to abandon her. Every right which the defendant could properly claim in this regard was carefully stated in a very clear and adequate charge.

The claim that the action was in effect an action for words spoken, and consequently barred by the statute of limitations 288 cannot be sutained. It was not, either in form or in substance, an action of slander, and the words proved were only one of the many means employed by the defendant to effect his purpose.

The judgment is affirmed.

HUSBAND AND WIFE-WIFE'S ACTION FOR ALIENATION OF HUSBAND'S AFFECTIONS.-It has been settled by the weight of authority that a wife may, without joining her husband, maintain an action to recover damages for the alienation of his affections, and the consequent loss of his society, assistance, and support, if, under the statutes of the state under which she prosecutes her action, she is given power to sue for personal wrongs without Joining her husband: See monographic note to Clow v. Chapman, 46 Am. St. Rep. 474; Price v. Price, 91 Iowa, 693; 51 Am. St. Rep. 300; Seaver v. Adams, 66 N. H. 142; 49 Am. St. Rep. 597, and note. Compare Smith v. Smith, 98 Tenn. 101; 60 Am. St. Rep. 838, and note.

HUSBAND AND WIFE-ALIENATION OF HIS AFFECTIONS. Froof that a separation between husband and wife has been caused by the unwarranted interference of his relatives, accompanied by threats to disinherit him, is sufficient to enable a wife to maintain an action against, and recover from, such relatives for alienation of her husband's affection: Price v. Price, 91 Iowa, 693; 51 Am. St. Rep. 360. A parent may, in good faith and from worthy motives, in a moderate, temperate, and careful manner, advise his son as to his domestic affairs without incurring liability for alienating his affections, though his advice influences a separation between his son and the latter's wife; but such relation will not excuse gross injustice deliberately perpetrated against the rights of the wife: See monographic note to Clow v. Chapman, 46 Am. St. Rep. 477.

HUSBAND AND WIFE-ALIENATION OF HIS AFFECTIONS -STATUTE OF LIMITATIONS.-An action by a wife for the alienation of her husband's affections is not governed by that section of the statute of limitations concerning direct physical injuries to the person, but is controlled by that section which limits the time in which an action may be brought for an injury to personal and relative rights: See monographic note to Clow v. Chapman, 46 Am. St. Rep. 478.

WILLIAMS v. Tozer.

[185 PENNSYLVANIA STATE, 302.]

TRUSTS JUDGMENT AGAINST TRUSTEE.-A trustee cannot, by giving a judgment bond in a matter in which the trust estate is not interested, create a liability against it, and, if judgment is entered on such bond, an injunction to prevent the sale of the trust property thereunder should be issued at the instance of one of the beneficiaries of the trust.

Application for an injunction against the sheriff to prevent his levying upon property belonging to the estate of Sarah Tozer, deceased. She, by her will, devised certain property to her husband in trust for her son, giving the trustee power to collect outstanding bills and accounts and use the proceeds, so far as necessary, to carry on a coal business in which the deceased was engaged at the time of her death, and the surplus, to hold and keep invested in paying securities. The trustee executed a judgment bond to secure a certain indebtedness due from a firm of which the son was a member. The injunction was granted, and from the order granting it an appeal was taken.

Rodney A. Mercur, for the appellant.

F. Overton and H. F. Maynard, for the appellees.

805 PER CURIAM. Notwithstanding the able and ingenious argument of appellant's counsel, we are not convinced that the learned court erred in making absolute the rule theretofore "granted so far as it enjoins the sheriff from selling any property of or belonging to the estate of Sarah Tozer, deceased." That estate-represented by Ralph Tozer, trustee, one of the parties to the bond on which the judgment was entered by virtue of the warrant of attorney contained therein-was neither interested in the transaction in which the judgment bond was given, nor received any benefit therefrom. As trustee or otherwise, Ralph Tozer had no authority, express or implied, to bind the estate or subject the property or assets thereof to execution in favor of the plaintiff. The authorities relied on by appellant are inapplicable to the facts of this case.

Decree affirmed and appeal dismissed at appellant's costs.

TRUSTS-UNAUTHORIZED ACTS OF TRUSTEE-RIGHTS OF BENEFICIARIES.-Trustees are not allowed to deal with the trust estate for their own benefit: Miller v. Davidson, 3 Gilm. 518; 44 Am. Dec. 715, and note; monographic note to Nyce's Estate. 40 Am. Dec. 516. Acts in relation to the trust property, not justified by implication, and in excess or variance of the powers ex