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2. The duties which he assumes in the character of husband :
3. How far the wife is enabled by law to act during coverture, as a feme sole :
4. Her competency, in view of a court of equity, to deal with her property :
5. Other rights and disabilities incident to the marriage union.
1 The recent legislation of several of the states has essentially changed the relations of husband and wife, in respect to the property of the latter.
In Vermont, by law passed in 1847, it has been enacted, that the rents, issues, and profits of the real estate of any married woman, and the interest of the husband in her right to the same, whether acquired before or after marriage, shall be exempt from attachment or execution for the sole debt of the husband; and no conveyance of the husband, during coverture, of such right or interest, shall be valid, unless the same be by deed, executed jointly by the husband and wife. Married women may devise their real estate, or any interest therein, descendible to their heirs.
In Connecticut, (ch. 20, Acts of 1849,) it is provided, that personal property accruing to a married man in right of his wife, by bequest or representation, shall be held in trust for the wife, the husband taking the income during his life, the same being exempt from his debts, except for those contracted for the wife and her children. The wife must join with her husband to give validity to a transfer of this property.
By the Rev. Stat. of Conn. tit. 7, ch. 1, § 7, 1849, the husband's interest in the wife's real estate cannot be seized by execution during the lives of the wife and children. A married woman may herself receive the wages of her own labor.
In Alabama, the change of the law is still more remarkable. By an Act, passed in 1850, it is provided :
1. That all property, owned by a woman on her marriage, or afterwards acquired, shall be her separate property.
2. Such property is vested in the husband in trust, to manage according to the general law of trusts, and he may take the rents, &c., without liability to account to the wife; but both the property and its rents and profits are not liable for his debts.
3. If the husband is guilty of certain enumerated abuses of his wife, or of his trust, and becomes incompetent, the courts may declare the wife to be a free “ dealer," having the rights and liability of a feme sole.
4. The wife's property can be conveyed only by the joint conveyance of the husband and the wife.
5. For articles of supply for the family, for which the husband would be liable at common law, the husband is severally liable, and the husband and wife jointly liable.
6. On the death of the wife, intestate, the husband succeeds to one half of her personal property absolutely, and to the use for life of one half of her real estate. It would appear that by a subsequent statute he is given the use for life of all her real estate. See Marshall o. Crow's Administrator, 29 Ala. 279. On the husband's death, if the wife's separate estate be equal to her dower, she has no dower; if it be less, she is entitled to so much of her husband's estate, as with her separate estate shall be equal to full dower.
In Massachusetts, by an Act passed in 1855, (Laws, ch. 304,) and amended in 1857, (Laws, ch. 249,) a married woman may hold real estate or personal property, belonging to her, or which may come to her by descent, devise, or bequest, or the gift of any person except her husband, in the same manner as if she were a feme sole. She may sell and convey away any of her real or personal property, with the written consent of her husband, or, if that cannot be obtained, with the consent of one of the judges of the supreme judicial court, or court of common pleas, or judge of probate. She may make a will, but cannot bequeath away from her husband more than one half of her personal property, without his written
1. The right which the husband acquires by marriage in the prop
erty of the wife. (1.) To her lands in fee. If the wife, at the time of marriage, be seised of an estate of
consent, and cannot, by her will, deprive him of his rights as tenant by the curtesy. She may carry on any trade or business, and perform any labor or services, and her earnings for the same are her sole and separate property. No bargain or contract, made by her in carrying on any trade or business, is binding on her husband. She may sue and be sued as a feme sole. Under these statutes it has been held in Massachusetts that a married woman cannot enter into partnership with her husband. Lord r. Parker, 3 Allen, 127. Under Stat. of Mass. 1863, c. 165, \ 1, the previous statutes, authorizing a married woman to carry on trade or business on her sole and separate account, are to be so construed as not to allow her to enter into copartnership in business with any person.
In Mississippi, by an Act passed in 1839, (Laws, ch. 46,) it was enacted that a married woman may become seised and possessed of any property, real or personal, by direct bequest, devise, gift, purchase, or distribution, in her own name, and as of her own property, provided the same does not come from her husband before coverture.
By the laws of Texas, it is provided that all the property of the husband on marriage, and all his future acquisitions, shall be his separate property; and that the property of the wife, owned at the time of marriage, or thereafter acquired, shall be her separate property. The husband has the management of the whole property. There are other provisions similar to those of the law of Alabama. Laws of Texas, ch. 79, 1848. And it was held in Fitts 0. Fitts, 14 Texas, 443, that a wife, with respect to her property, is not one with her husband; she has like capacity with him to acquire, receive, and hold property; and she can hold fully and perfectly in her own right, without the intervention of a trustee.
In California, by a law passed April 17, 1850, at the first session of the legislature of that state, all property, both real and personal, of the husband or wife, owned by him or her before marriage, and acquired afterwards by gift, bequest, devise, or descent, is his or her separate property. All property, acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, is common property. The rents and profits of the separate property of either husband or wife are deemed common property. No estate is allowed to the husband as tenant by curtesy, and the wife has no right of dower. Upon the dissolution of the community by the death of either husband or wife, one half of the common property goes to the survivor, and the other half to the descendants of the deceased husband or wife, subject to the payment of the debts of the deceased. If there be no descendants of the deceased husband or wife, all the property goes to the survivor.
In New York, a law equally bold in its innovations, but less minute and comprehensive in its provisions, has been enacted. By “ An Act for the more effectual protection of the property of married women," passed April 7, 1848, and amended April 11, 1849, it was enacted:
1. That the property of a woman thereafter marrying should continue her sole and separate property as if she were a single female, not liable to her husband's debts, nor subject to his disposal.
2. A similar provision was made as to the property of a woman married at the time of the Act, except so far as the same might be liable for the debts of the husband previously contracted.
3. It was declared that any married woman might inherit or take property by gift, &c., from any person other than her husband, and hold the same to her separate use, not subject to her husband's disposal nor liable for his debts, and might convey and devise the same in the same manner as if she were unmarried.
4. Married women, then entitled to trust estates, were authorized, on the approval of s
inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and
justice of the Supreme Court, to receive conveyances from their trustees of the trust property, for their separate use.
5. Marriage contracts were declared to be in full force after the marriage takes place.
It would be premature to pronounce upon all the bearings of this startling innovation on the law of husband and wife. According to the plainest construction of the statute, an immense alteration of the law, as declared in this lecture, has been effected. Nor is it easy to assign its limits. Innumerable questions suggest themselves, to be decided by the courts, as well as the more important one, to be determined by time, whether true wisdom has dictated this entire destruction of a rule of law which had stamped itself upon national manners, and become connected with the happiness of domestic life.
In Snyder v. Snyder, 3 Barb. (N. Y.) 621, it was decided that the Acts do not apply retrospectively to the property which women then married had at the time of their marriage, or had acquired during coverture. See, also, Holmes v. Holmes, 4 Id. 296. Watson v. Bonney, 2 Sandf. (N.Y.) 405. White v. White, 5 Barb. (N. Y.) 485. Ryder v. Hulse 24 N. Y. 372.
Nor do they affect the husband's vested interest in a legacy bequeathed to the wife prior to the enactments, though not then reduced by him to possession. Westervelt v. Gregg, 2 Kern. (N. Y.) 202. Perkins v. Cottrell, 15 Barb. (N. Y.) 446. Although under the statutes of New York the husband has no interest in the wife's land, during coverture, yet, on her death after issue born, he is entitled to his tenancy by the curtesy. Hurd v. Cass, 9 Barb. (N. Y.) 366. Smith v. Colvin, 17 Barb. (N. Y.) 157. Clark v. Clark, 24 Barb. (N. Y.) 581.
Where a feme sole mortgagee married the mortgagor, and subsequently joined him in executing another mortgage, containing no words showing an intent to postpone her own mortgage lien, it was held that neither by the marriage, nor by her joining in the second mortgage, were her rights as mortgagee affected. Powers v. Lester, 23 N. Y. 527.
These Acts do not confer upon a married woman any new capacity to make personal contracts, which have no relation to her separate estate. Switzer v. Valentine, 4 Duer, 96. And see Blood v. Humphrey, 17 Barb. (N. Y.) 660. Sleight v. Read, 18 Barb. (N. Y.) 159.
By Acts passed March 20, 1860 and April 10, 1862, the rights of married women are still further enlarged. By these statutes, a married woman may bargain, sell, assign, and transfer her separate personal property, and carry on any trade or business, and perform any labor or services on her sole and separate account; and her earnings from her trade, business, labor, or services are her sole and separate property, and may be used or invested by her in her own name. So a married woman may sell and convey her real estate, enter into any contract in reference thereto, and make the covenants usual in conveyances, which will bind her separate property. She may sue and be sued alone, in respect to her separate property, and may bring an action, in her own name, for damages, against any person or body corporate, for injury to her person or character; and the money received on settlement or recovered by judgment is her sole and separate property. She may make any bond or undertaking, necessary in the prosecution or defence of any action by or against her, and it will bind her separate property. None of these transactions by a wife bind the husband or render him or his property liable. She alone is liable for costs in any such action. And a judgment against her may be enforced by execution against her separate estate. See, also, Laws of New York, 1862, ch. 460, sec. 12.
By Statutes of Maine, Laws of 1852, ch. 227 and 291, a married woman, seised and possessed of property, real or personal, may sell and convey the same in her own name.
In New Jersey, (Laws of 1852, ch. 41,) the property of a woman at the time of her marriage continues her separate property, and she is authorized to receive and hold property as if she was unmarried. And a husband cannot recover, to his own use, a bequest made to his wife, unless he have reduced such bequest to possession previous to the Act of 1852. Henry v. Dilley, 1 Dutch. (N. J.) 302.
In Maryland, (Laws of 1853, p. 324,) the property, real and personal, belonging to a woman
profits during their joint lives. (a) It is a freehold estate in the husband, since it must continue during their joint lives, and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, unless he be a tenant by the curtesy. It will be an estate in him for his own life if he dies before his wife, and in that event, she takes the estate again in
her own right. If the wife dies before the husband, with* 131 out having had issue, her heirs immediately * succeed to
the estate. If there has been a child of the marriage born alive, the husband takes the estate absolutely for life, as tenant by the curtesy, and on his death the estate goes to the wife, or her heirs; and in all these cases, the emblements growing upon the land, at the termination of the husband's estate, go to him or his representative.
During the continuance of the life-estate of the husband, he sues in his own name for an injury to the profits of the land ; but for an injury to the inheritance, the wife, must join in the suit, and if the husband dies before recovery, the right of action survives to the wife. (a) If the husband himself commits waste, the coverture is a suspension of the common-law remedy of the wife against him. The husband has an interest in the freehold estate
(a) Co. Litt. 351, a. In Georgia, the rights of the husband upon marriage in the real estate of the wife are vastly enlarged. That estate passes to the husband absolutely, the same as personal property; and if the wife dies intestate, the husband is entitled to administer upon her estate, real and personal, and recover and enjoy the same without being subject to distribution. On the other hand, if the husband dies intestate without issue, the wife inherits his whole estate, real and personal, subject to his debts. Hotchkiss's Codification of the Statute Law of Georgia, 1845, p. 426.
(a) Weller and others v. Baker, 2 Wils. 423, 424. It is there said to be difficult to reconcile the cases, as to the joinder of husband and wife, in actions relating to the land.
at the time of her marriage, or which she may acquire thereafter by gift, devise, descent, or bequest, is not liable for the debts of her husband; provided the same shall not have been conveyed to her by her husband in prejudice of the rights of his creditors.
In Kentucky, (Laws of 1855–6, p. 42,) the slaves and real estate, belonging to married women, are not liable for the debts of the husband.
? If the real estate of the wife be converted into personalty during the life of the wife, by act of law, it will be treated as though the wife had herself made the conversion. Graham v. Dickinson, 3 Barb. Ch. 170. The rule appears to be otherwise in Maryland. Taggart v. Boldin, 10 Md. 104.
Where the husband and wife united in a conveyance of the real estate of the wife to trustees for the use of the grantors, it was held, that the transaction gave the husband absolute control of the proceeds. Siter v. M'Clanachan, 2 Gratt. 280. The husband, after the death of the wife, may sue for the use and occupation of her real estate, by the permission of the husband and wife during coverture. Jones v. Patterson, 11 Barb. (N Y.) 572.
of his wife, which may be seized and sold on execution ; and if the assignee or creditor of the husband, who takes possession of the estate on a sale on execution of his freehold interest, commits waste, the wife has her action against him, in which the husband must join ; for though such assignee succeeds to the husband's right to the rents and profits, he cannot commit waste with impunity. (6) So, also, the heir of the wife may sue the husband for the waste, and no doubt the Court of Chancery would stay by injunction the husband's waste, on behalf of the wife herself. But it seems, that, from want of privity, the heir of the wife cannot bring an action of waste against the assignee of the husband, though it may be brought against the husband himself, for waste done by his assignee, and he shall recover the land of the assignee. (c) The subtle distinction in Walker's case, (d) and which we have followed, was, that if the tenant by the curtesy assigns over his estate, the heir of the wife can sue him for waste done after the assignment; but if the heir * grants * 132 over the reversion, the grantee cannot sue the husband, for the privity of the action is destroyed. He can only sue the assignee of the husband, for as between them there is a privity of estate.
If an estate in land be given to the husband and wife, or a joint purchase be made by them during coverture, they are not properly joint tenants, nor tenants in common, for they are but one person in law, and cannot take by moieties. They are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole. (a) This species of tenancy arises from the unity of husband and wife, and it applies to an estate in fee, for life, or for years. If the grant be made to husband and wife and B., or to the husband and wife and B. and C., the grantees are all joint tenants as between themselves, but the husband and wife are tenants by entireties, as between each
(6) Babb and Wife v. Perley, 1 Greenl. 6. Mattocks v. Stearns, 9 Vermont, 326. (c) Bates v. Shraeder, 13 Johns. 260. (d) 3 Co. 22. (a) Preston on Estates, vol. i. 131.
1 In lands conveyed to the wife, the husband becomes seised of an estate for their joint lives. R. R. Co. v. Harris, 9 Ind. 184.
It may still exist in New York, notwithstanding the “married women Acts" of 1848, 9. Goelet o. Gori, 31 Barb. (N. Y.) 314.