This case presents two questions: 1st, Was the testimony of Asahel Bailey admissible? 2ndly, Were the wife and sons of Samuel Bailey competent to execute his declared intention, without special authority?

1. Asahel Bailey was a son and heir of Samuel Bailey; but having received an advanced portion, which could not be recalled by his coheirs, his only interest was a liability to bring his advancement into hotch-pot, and a right to a distributive share of the remainder. But this right was doubly barred; first, by the decree of the court of probate, finding that he had received his full share, from which he had not appealed; secondly, by his release of all right to his father’s estate. And though he was made a party to the appeal, he appeared not; and I believe it was never known, that a defaulted defendant, in a joint and several suit, recovered costs.

2. Were the wife and sons of Samuel Bailey competent to execute his declared intention, without special authority ? By marriage, the husband has the entire controul of the person and property of the wife; but she has none over his. If she has not such power, a fortiori their children have not; but they both may be agents, and execute powers delegated, express or implied;-express, when constituted agents; implied, when from the nature of the acts done, the assent of the husband or father is presumed. An intention to give, is not a gift, and is not ob*312ligatory on the giver; and no person can make it so, without his authority. Reeve’s Dom. Rel. 79. 1 Swift’s Dig. 18.

I advise a new trial.

New trial to be granted.