Johnson, Judge,
delivered the opinion of the Court:
The record in this cause being so confused, it is after much patient study, that I am enabled to come to a conclusion, as to what should be done in the cause.
The most important question meets us on the threshold: Should the demurrer to the bill have been sustained? The first ground of demurer is, “that it appears from the said bill, that the certificates and money mentioned therein, were reduced to the possession of the said Wm. O. Reid in his life time; and the said Reid was the husband of the complainant.” If this were an action at law, and the same allegations were made in the declaration, as are found in the bill, the demurrer would have been fatal to it. The doctrine is so universally recognized, that at law the earnings of the wife are absolutely the property of the husband, that it is Syllabus 1 necessary to refer to any-,authority on that subject. But' the ground of demurrer, “that there is no equity in the bill,” presents quite a different question.
[364]*364Can a married woman living with her husband, carry on a separate business even with her husband’s consent, and claim the accumulation from her earnings as . her own, and in a court of equity maintain her right to it?' If this can be done, certainly the complainant’s bill makes a strong appeal to a court of equity. Her husband was disabled from work; the wife, contrary to the usual course, was compelled to support her husband, and, as the bill shows, by her industry, frugality and economy, was enabled, after supporting her husband, to lay up about $4,000.00. All this was done with the consent of the husband; and it would be hard indeed, if under the rules of equity, that same husband, after being thus supported by his wife for years, and by his own promises, held out to her, induced her to toil in the hope of having as her own the accumulation of her earnings, by his will should wrest those earnings from her and give them to others, and leave her without support. The bill does not show, that there are any creditors, who might have claims against the husband. The rights of creditors other than the widow, do not appear to be involved in the cause; and the question is: under these circumstances will a court of equity give the wife her earnings as against the devisees of her husband ?
One of the earliest cases on the subject is Slanning v. Style, 3 P. Wms. 334. In that case the widow claimed to be paid out of her husband’s estate £100. It was proved in the cause, that her husband, “ whenever any person came to buy any fowls, pigs, &c., would say, he-had nothing to do with those things, which were his wife’s; and’that he also confessed, that having been making a purchase of about £1,000 value, and wanting some money, he had been obliged to borrow £100 of his wife to make up the purchase money, therefore now the widow claimed to be paid this £100.” “ To this it was answered, that there was no deed touching this agreement, nor any writing whatsoever, whereby to raise a separate property in a jeme covert, which was what the [365]*365law did not favor; that it was no more than a connivance or permission, that the wifeshould'take these things and continue to enjoy them during his (the husband’s) pleasure, which pleasure was determined by his death; besides this agreement was a voluntary one, for which a court of equity usually leaves a party to take his remedy at law ; and that in truth the husband’s borrowing this £100 of his wife was no more than borrowing his own money.”
But Lord Chancellor Talbot decreed, that the widow was well entitled to come in for this £100 as a creditor before the master ; observing, “that the courts of equity have taken notice of and allowed feme coverts to have separate interests, by their husband’s agreements; and this £100, being the wife’s savings, and their being evidence, that the husband agreed thereto, it seemed but a reasonable encouragement to the wife’s frugality; and such agi'eement would be of little avail, were it to determine by the husband’s death;” and there being no creditor of the husband, whose rights could be inter-ferred with, the money was decreed to be paid her.
We have examined a number of authorities upon the subject, and conclude, that where by the husband’s consent the wife earns money, with the agreement or understanding between them, that it is to bé hers, and the rights of creditors do not intervene, it will in a court of equity be given to her, as against the devisees or distributees of the husband. 1 Roper H. & W. 140, 172; 2 Story’s syllabus 2 Eq., § 1387; Basham v. Chamberlain, 7 B. Mon. 443; Conners v. Conners, 4 Wis. 131; Kee v. Vasser, 2 Ire. Eq. 553; Kinney v. Fellows, 15 Vt. 375; Borron v. Borron. 24 Vt. 375; Pinkston v. McLemore, 31 Ala. 308; Penn v. Whitehead, 17 Gratt. 503. We do not discuss or decide the question here whether or how far such an agreement between husband and wife would be valid, if it affected the rights of the creditors, as that qnestion does not arise in this cause. The bill, we think, shows a proper case for relief, and the demurrer for want of equity was properly overruled.
[366]*366Another ground of demurrer alleged is, thate< the bill is multifarious, in this, that the complainant seeks to’ recover certain money in her own right, and in the same bill seeks to recover as the widow of William O. Reid, deceased, and asks to have the will of William O. Reid declared null and void.”
It is not necessary to decide, whether the complainant could claim, both as the widow ¡nf Wm. O. Reid, and at the same time claim money as a creditor of the said Reid, as she set up no distinct claim for a distributive share of her husband’s estate in the bill; all there is said as to her right as distributee in the bill is, “but the said John Reid, Jr., holding himself bound to the literal execution of the terms and provisions of the said paper writing, claiming the same to be the last will and testament of her husband, William O. Reid, not only refuses to pay her said money, which has come to his hand, but controlled by the infamously false allegations of the said paper writing or pretended will, that her marriage with said William O. Reid was a nullity, for the reason therein stated, the said John Reid, Jr., also refuses to account for and pay over to her that part of the said money, to which she is lawfully entitled as the widow of said Reid.” And there is no distinct prayer for her distributive share made by the complainant, although that would not be necessary, if the bill had b een properly framed for that purpose, as there is a prayer for general relief. But it is said, the bill is multifarious, because it also asks an issue devisavit vel non, and Coalter, ex’or v. Bryan et ux., 1 Gratt, 18, is relied upon to sustain the position.
In that case the suit was brought for the double purpose of contesting the validity of the will, upon the final probat before a jury, and to enforce the claims of complainants to the property, as heirs and distributees of the decedent. Judge Baldwin, who delivered the opinion of the court, said: “ It is clear from what has already been said, that if the whole probat jurisdiction had re[367]
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Johnson, Judge,
delivered the opinion of the Court:
The record in this cause being so confused, it is after much patient study, that I am enabled to come to a conclusion, as to what should be done in the cause.
The most important question meets us on the threshold: Should the demurrer to the bill have been sustained? The first ground of demurer is, “that it appears from the said bill, that the certificates and money mentioned therein, were reduced to the possession of the said Wm. O. Reid in his life time; and the said Reid was the husband of the complainant.” If this were an action at law, and the same allegations were made in the declaration, as are found in the bill, the demurrer would have been fatal to it. The doctrine is so universally recognized, that at law the earnings of the wife are absolutely the property of the husband, that it is Syllabus 1 necessary to refer to any-,authority on that subject. But' the ground of demurrer, “that there is no equity in the bill,” presents quite a different question.
[364]*364Can a married woman living with her husband, carry on a separate business even with her husband’s consent, and claim the accumulation from her earnings as . her own, and in a court of equity maintain her right to it?' If this can be done, certainly the complainant’s bill makes a strong appeal to a court of equity. Her husband was disabled from work; the wife, contrary to the usual course, was compelled to support her husband, and, as the bill shows, by her industry, frugality and economy, was enabled, after supporting her husband, to lay up about $4,000.00. All this was done with the consent of the husband; and it would be hard indeed, if under the rules of equity, that same husband, after being thus supported by his wife for years, and by his own promises, held out to her, induced her to toil in the hope of having as her own the accumulation of her earnings, by his will should wrest those earnings from her and give them to others, and leave her without support. The bill does not show, that there are any creditors, who might have claims against the husband. The rights of creditors other than the widow, do not appear to be involved in the cause; and the question is: under these circumstances will a court of equity give the wife her earnings as against the devisees of her husband ?
One of the earliest cases on the subject is Slanning v. Style, 3 P. Wms. 334. In that case the widow claimed to be paid out of her husband’s estate £100. It was proved in the cause, that her husband, “ whenever any person came to buy any fowls, pigs, &c., would say, he-had nothing to do with those things, which were his wife’s; and’that he also confessed, that having been making a purchase of about £1,000 value, and wanting some money, he had been obliged to borrow £100 of his wife to make up the purchase money, therefore now the widow claimed to be paid this £100.” “ To this it was answered, that there was no deed touching this agreement, nor any writing whatsoever, whereby to raise a separate property in a jeme covert, which was what the [365]*365law did not favor; that it was no more than a connivance or permission, that the wifeshould'take these things and continue to enjoy them during his (the husband’s) pleasure, which pleasure was determined by his death; besides this agreement was a voluntary one, for which a court of equity usually leaves a party to take his remedy at law ; and that in truth the husband’s borrowing this £100 of his wife was no more than borrowing his own money.”
But Lord Chancellor Talbot decreed, that the widow was well entitled to come in for this £100 as a creditor before the master ; observing, “that the courts of equity have taken notice of and allowed feme coverts to have separate interests, by their husband’s agreements; and this £100, being the wife’s savings, and their being evidence, that the husband agreed thereto, it seemed but a reasonable encouragement to the wife’s frugality; and such agi'eement would be of little avail, were it to determine by the husband’s death;” and there being no creditor of the husband, whose rights could be inter-ferred with, the money was decreed to be paid her.
We have examined a number of authorities upon the subject, and conclude, that where by the husband’s consent the wife earns money, with the agreement or understanding between them, that it is to bé hers, and the rights of creditors do not intervene, it will in a court of equity be given to her, as against the devisees or distributees of the husband. 1 Roper H. & W. 140, 172; 2 Story’s syllabus 2 Eq., § 1387; Basham v. Chamberlain, 7 B. Mon. 443; Conners v. Conners, 4 Wis. 131; Kee v. Vasser, 2 Ire. Eq. 553; Kinney v. Fellows, 15 Vt. 375; Borron v. Borron. 24 Vt. 375; Pinkston v. McLemore, 31 Ala. 308; Penn v. Whitehead, 17 Gratt. 503. We do not discuss or decide the question here whether or how far such an agreement between husband and wife would be valid, if it affected the rights of the creditors, as that qnestion does not arise in this cause. The bill, we think, shows a proper case for relief, and the demurrer for want of equity was properly overruled.
[366]*366Another ground of demurrer alleged is, thate< the bill is multifarious, in this, that the complainant seeks to’ recover certain money in her own right, and in the same bill seeks to recover as the widow of William O. Reid, deceased, and asks to have the will of William O. Reid declared null and void.”
It is not necessary to decide, whether the complainant could claim, both as the widow ¡nf Wm. O. Reid, and at the same time claim money as a creditor of the said Reid, as she set up no distinct claim for a distributive share of her husband’s estate in the bill; all there is said as to her right as distributee in the bill is, “but the said John Reid, Jr., holding himself bound to the literal execution of the terms and provisions of the said paper writing, claiming the same to be the last will and testament of her husband, William O. Reid, not only refuses to pay her said money, which has come to his hand, but controlled by the infamously false allegations of the said paper writing or pretended will, that her marriage with said William O. Reid was a nullity, for the reason therein stated, the said John Reid, Jr., also refuses to account for and pay over to her that part of the said money, to which she is lawfully entitled as the widow of said Reid.” And there is no distinct prayer for her distributive share made by the complainant, although that would not be necessary, if the bill had b een properly framed for that purpose, as there is a prayer for general relief. But it is said, the bill is multifarious, because it also asks an issue devisavit vel non, and Coalter, ex’or v. Bryan et ux., 1 Gratt, 18, is relied upon to sustain the position.
In that case the suit was brought for the double purpose of contesting the validity of the will, upon the final probat before a jury, and to enforce the claims of complainants to the property, as heirs and distributees of the decedent. Judge Baldwin, who delivered the opinion of the court, said: “ It is clear from what has already been said, that if the whole probat jurisdiction had re[367]*367mained in tbe courts of law, the heirs and distributees of a decedent could not have maintained a bill in equity, to impeach directly the yalidity of a will there admitted to probat; or to bring it into question incidentally, by claiming the property thus disposed of. How then does the court of chancery obtain jurisdiction over the property, by the transfer to that forum of. the final probed of the instrument? The only effect of a verdict against the will, upon the issue of devisavit vel non, would be to place the rights of property in the same situation, as if the will had never been made. * * * * The most that can be said in behalf of the ulterior relief sought by the plaintiffs is, that the court of chancery having obtained jurisdiction of the subject for the purpose of deciding upon the validity of the instrument, it ought to go on and administer complete justice between the parties, instead of turning them round to another action, whether in the same or a different forum. But this is founded upon the supposition, that the court of chancery has obtained jurisdiction of the subject as a court of equity. Such however is not the fact; its jurisdiction is merely that of a court of probate, and to be exercised not by the court, but by a jury under its supervision, and for the decision of a common law issue affecting the legal rights of the parties.” The learned judge then goes on to argue that the bill cannot be maintained for those two purposes. But it was held, that the suit was proper for an issue devisavit vel non; and the bill sufficient for that purpose.
Judge Story in his equity pleadings §283 says : “Although a bill is ordinarily open to objection for multifariousness, which contains two distinct subject matters wholly disconnected with each other, yet if one of them be clearly without the jurisdiction of a court of equity for redress, it seems, that the court will treat the bill, as syllabus 3 if it were single, and proceed with the other matter, over which it has jurisdiction, as if it constituted the sole object of the bill.” The same principle was recognized by this court in Smith v. McLain, 11 W. Va. 654.
[368]*368In ibis cause, the court of equity as such did not have "jurisdiction of both the subjects of the bill, and could not proceed with both. The bill therefore should not have been dismissed for multifariousness, and the demurrer on that ground was properly overruled. But there having been no issue devisavit vel non in the case, and the cause being matured as to the other subject, the bill ought to have been dismissed, as to all the defendants before the court, except the personal representative of the estate of William O. Reid, deceased.
The last ground of demurrer is, “that if the matters stated in said bill do give the complainant any cause of complaint against the defendant, the same are triable and determinable át law, and ought not to be inquired into by this court.” This objection is already answered, as we have seen, that she could not at law have sued for her separate earnings, as at law they absolutely belong to the husband. Our statutes, as to the rights of married women, do not provide for such a case, and leave her precisely as she would have been, had those statutes never been enacted. Had she been living separate and apart from her hushand, when she accumulated the property, she would have been protected by §13 of chap. 66 of the Code.
Syllabus 4. There was no error in allowing the suit to abate, as to the devisees, the children of William O. Reid, deceased. They were not necessary parties to the suit, for the recovery of complainant’s demand. The personal representative of William O. Reid, deceased, was the only defendant necessary; it was his duty to protect the estate against the recovery of any unjust demands. This is simply a suit, in equity, by the plaintiff, because under the circumstances she could not bring it at law, to recover money, that the testator owed her; money which she entrusted to his care to deposit in bank for her, and which he converted to his own use, she is not seeking to recover the specific money, but claims, that the estate of the deceased husband owes her that sum. It is nottherer [369]*369fore distinguishable in principle from asimple action at law, in an ordinary case brought by a creditor against the personal representative of a deceased party, to establish a demand against the estate, and therefore the personal representative is the only necessary defendant. Sto. Eq. PI. §140, 141, Moore’s adm’r v. George’s adm’r. 10 Leigh 228.
-It is also insisted for the appellant, that the personal represenative of John .Reid, Jr., deceased, who was executor of the last will and testament of William O. Reid, should have been made a party to the suit. It is not perceived, upon what principle he should have been made a party. The suit was brought to establish the claim of the plaintiff against the estate of her husband. There is nothing in the bill to justify a personal decree Syllabus 5. against either the executor, or the administrator de bonis non with the will annexed of Reid deceased. When the executor died, the cause was properly revived against the administrator de bonis non, because there was no other party, who could possibly represent the estate of William O. Reid, deceased, and defend it against the claim of plaintiff. Sheldon et al. v. Armstead’s adm’r et al. 7 Gratt. 264, Braxton adm’r &c., v. Harrison’s ex’ors 11 Gratt. 30.
It is also alleged as- ground of error, that the depositions, taken at law and filed in the cause, were improperly read at the hearing. It seems to be admitted that consent was given by counsel of the defendant, Reid, that they should be read; but no such consent appears in the record. As far as the record shows, no consent was given for the administrator de bonis non to the reading of the depositions. The consent was as, “ attorney for John Reid’s administrator ” “ to be read upon the hearing of the case of Mary A. Jones v. John Reid’s administrator.” No such case is before the court, and no such party as John Reid’s administrator ” is defendant in the cause before the court, so the consent could amount to nothing. But it was immaterial, whether there were any [370]*370proofs before the court, as the bill was taken for confessed, both by the executor of William O. Reid, and the administrator de bonis non. Riggs v. Lockwood, 12 W. Va. The plaintiff was therefore entitled to a decree for the money, that, she alleged in her bill, was due to her from the estate of her deceased husband, William O. Reid.
But it was clearly error, to enter a decree de bonis propriis against the administrator de bonis non. A personal judgment or decree against an executor or administrator, or administrator de bonis, who is sued in his Syllabus 6 representative character only, is fatally erroneous. Spotswood v. Price, &c., 3 H. & M. 123; Humphrey’s adm’r v. West’s adm’r, 3 Rand. 516; Pugh’s ex’or v. Jones, 6 Leigh 299 ; Well’s adm’r v. Dunn’s adm’r, 5 Gratt. 384.
For the foregoing reasons the decree of the circuit court of Ohio county, rendered in this cause, on the 16th day of July, 1876, is reversed with costs to the appellant ; and this Court proceeding to render such decree as the circuit court should have rendered, the complainant’s bill is dismissed as to John Reid, Sr., the security on the executorial bond of John Reid, Jr., late executor of William O. Reid, deceased, also the said bill is dismissed as to J. T. Sullivan and H. T. Parks, executor of the last will and testament of R. Y. Whelan, deceased, with costs to the said John Reid, Sr. and J. T. Sullivan and H. T. Parks, executors as aforesaid; and it is adjudged, ordered and decreed, that the plaintiff, Mary Ann Jones, recover of the defendant, John Reid, Sr., administrator de bonis non with the will annexed of William O. Reid, deceased, the sum of $4,000.00, with interest thereon from the 6th day of May, 1870, together with her costs about her suit expended, to be levied of the goods and chattels of the testator, William O. Reid, in his hands to be administered.
The other Judges concurred.
Decree Reversed.