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It should be added, that the wife may everywhere even by common law be the agent of the husband, and transact for him his business transactions, making, accepting, or indorsing bills or notes, purchasing goods, rendering bills, collecting money and receipting for it, and in general entering into any contract so as to bind him, if she has his authority to do so. And while they continue to live together, the law considers the wife as clothed with authority by the husband to buy for him and his family all things necessary in kind and quantity for the proper support of his family; and for such purchases made by her, he is liable.
The husband is responsible for necessaries supplied to his wife, if he does not supply them himself. And he continues so liable if he turns her out of his house, or otherwise separates himself from her, without good cause. But he is not so liable if she deserts him (unless on extreme provocation), or if he turns her away for good cause.
If she leaves him because he treats her so ill that she has good right to go from him and his house, this is the same thing as turning her away; and she carries with her his credit for all necessaries supplied to her. But what the misconduct must be to give this right, is uncertain. Some English cases are very severe on this point. In one, a husband brought a prostitute into his house, and confined his wife to her own room under pretence of her insanity. But the court held this to be insuffi cient. The Supreme Court of New York, in commenting upon this case, said that “the doctrine contained in it cannot be law in a Christian country.” In America the law must be, and undoubtedly is, that the wife is not obliged to stay and endure cruelty or indecency.
It may be added, that if a man lives with a woman as his wife, and represents her to be so, he is liable for necessaries supplied to her, and for her contracts, in the same way as if she were his wife; and this even to one who knows that she is not his wife.
The statutes of which we have given an abstract are intended to secure to a married woman all her rights. But in all parts
of this country, women about to marry—or their friends for them-often wish to secure to them certain powers and rights, and to limit these in certain ways, or to make sure that their property is in safe and skilful hands. This can only be done by conveying and transferring the property to TRUSTEES; that is, to certain persons to hold the same in trust. This is done by a legal instrument, which is almost always an Indenture; by which is meant an instrument under seal between two or more parties. This instrument must set forth precisely, and with legal accuracy, just what the trust is; that is to say, just what the trustees, or the woman, or her husband may do, and just what they must do. This is one of those instruments which require peculiar care and exactness. We give as models, or forms, two, differing in their terms and purposes. Both were drawn by very skilful lawyers, and with such changes, of omission or addition or alteration, as the circumstances of any case or the wishes of the parties make necessary, will be useful and safe guides in the preparation of such instruments.
An Indenture to put in Trust the Property of an Unmarried
by and between of single woman, of the first part, and
of the second part, Witnesseth, That the said party of the first part is seized and possessed of certain real and personal estate, to wit, one undivided moiety of the reversion in and of a messuage and land in bounded as follows:
a mortgage of a lot of land bounded on Street, and described in the deed of
which is recorded in the Registry of Deeds, lib.
; a mortgage of a lot of land bounded on Street, and described in the deed of
recorded in the said Registry, lib.
; a mortgage of two lots of land bounded on Street, and described in the deed of recorded in the said Registry, lib. fol.
; a mortgage of a lot of land bounded on Street, and described in the deed of
to recorded in the Registry aforesaid, lib. fol. ; one hundred shares in the capital stock of the Bank in
; twenty-five shares in the capital stock of the Bank in
; and fifty shares in the
capital stock of the Bank of
; also a note of hand signed by the said
, for the sum of fifteen thousand dollars; a note of hand signed by the said
, for the sum of three thousand dollars; a note of hand signed by
for the sum of two thousand five hundred dollars; a note of hand signed by
for the sum of six thousand dollars, which notes are severally secured by the lands and tenements, mortgaged as aforesaid; also a note of hand signed by for the sum of one thousand dollars.
All which real and personal estate the said party of the first part is desirous that the party of the second part should have and hold in trust for certain uses and purposes hereinafter set forth and expressed; and in conformity with said intention, and for the purpose of carrying the same into effect, the said party of the first part, in consideration of the sum of five dollars paid to her by the party of the second part, the receipt of which she doth hereby acknowledge, and for divers other good considerations moving her thereto, hath given, granted, sold, and conveyed, and doth give, grant, bargain, sell, and convey, all the said lands, tenements, and real estate, and doth hereby bargain, sell, transfer, assign, and set over all the aforesaid chattels and personal estate, as the same are above specified and described, unto the said
and their heirs and assigns. To have and to hold the said granted premises unto the said
and and their heirs and assigns, and to the survivor of them and his heirs and assigns forever to their own use, but in trust nevertheless for the purposes, objects, and intents hereinafter set forth and expressed, and for none other, namely:
First, That the said trustees and their successors in the said trust shall permit the said party of the first part, without any hindrance or interference by them, so long as she shall remain sole and unmarried, and shall see fit so to do, to receive and take in her proper person, or by her agent or attorney, the rents, income, dividends, interest, and profits of the said trust estate, real and personal, without any accountability therefor, to them the said parties of the second part; but if required by her, the said party of the first part, so to do, the said trustees and their successors shall collect and receive the said rents, income, and profits of the trust estate, and shall from time to time pay over the same unto the said party of the first part for her own use.
Secondly, That from and after the solemnization of the marriage of the said party of the first part, whenever that event may take place, the said trustees and their successors shall collect, take, and receive all the rents, income, and profits of the trust estate, real and personal, and shall from time to time pay over the same to the said party of the first part, to and upon her separate order or receipt, made and signed by her, at or about the time of such payments respectively, and for her proper use, free from the control or interference of any husband she may have.
Thirdly, That at and after the decease of said party of the first part, the said trustees and their successors shall be seized and possessed of the said
trust estate to and for the use of such person or persons as the said party of the first part, by any last will and testament, duly executed, if she die sole and unmarried, or, in case she be at her decease a married woman, by any paper writing signed by her in presence of two or more credible witnesses, shall order, and appoint to take, receive, and hold the same, and in such shares and manner, and upon such terms and conditions, as she shall direct, order, and appoint as aforesaid ; and in case the said party of the first part shall omit to make any such will or testamentary appointment, then the said trustees and their successors shall hold the trust estate to the use of such person or persons as by the laws of this Commonwealth would, in case the party of the first part had died seized and possessed of the then existing trust property in her own right, have been entitled to the same as heirs-at-law, or distributees; provided always, that in such case the husband of the said party of the first part, if she leave a husband, shall be entitled to his life estate in all the real estate, as if he were tenant by the curtesy in and of the same, and be subject to all the duties incident to a tenant by the curtesy.
Fourthly, That the said trustees and their successors shall keep the said trust estate, real and personal, constantly invested in the most safe and profitable manner in their power, but relying always on their discretion in this behalf, and shall accordingly have power to sell and dispose of any of the said trust estate, and to make and pass all necessary deeds and instruments of conveyance thereof, and to purchase any other estate, real or personal and the same to sell again, and so from time to time to change the property composing the trust fund and estate; provided always, that all real and personal estate which may be purchased by them the said trustees with the trust moneys, or the proceeds of sale of the trust property, shall be conveyed and assigned to them and their successors as trustees as aforesaid, and shall be holden always upon the same trusts, and with the same powers, and for the same purposes, as are set forth and declared in this indenture of and concerning the estate firstly above described and conveyed to the said trustees.
Fifthly, That the said trustees or their successors, in case the said party of the first part shall so order and direct, shall invest the trust money or estate, or such part thereof as they shall be ordered as aforesaid, in the purchase of such house for the habitation and dwelling of the said party of the first part as she may select, and shall lay out and expend such other part of the said trust money and estate as she, the said party, shall order and direct, in the purchase of such furniture, plate, horses, and equipages, as she may choose and select for her own use; and shall permit her, the said party of the first part, with any husband she may have, to occupy and inhabit the said house, and to use and enjoy the said furniture, plate, carriages, and horses without impeachment of waste, and without any accountability to them the said trustees for the reasonable wear and use thereof, or injury by casualty; and the trustees shall keep the said house
and furniture insured against fire, and, in case of loss or injury by fire, shall lay out and expend the money which they may receive from the assurers, in the repairing or rebuilding of the said house, if so directed by the said party of the first part, and in the purchase of other and new furniture, plate, horses, and equipages in place of those which have been injured or destroyed by fire, and shall permit the said party of the first part to use and enjoy the same in manner aforesaid. And the said trustees and their successors shall, when required by the said party of the first part so to do, sell and dispose of any house which may have been purchased by them for the personal occupation and habitation of the said party of the first part, and shall in manner aforesaid lay out the proceeds of sale of such house, and such other moneys as she shall direct, in the purchase of such other house as she shall select and direct them to purchase, and shall permit her to occupy the same in manner above set forth and expressed; and they shall also, when directed by the said party of the first part, sell and dispose of any of the furniture and other chattels, so as aforesaid, purchased by them for her use, and shall from time to time lay out and expend the proceeds of such sales and such other sums of money as they shall be directed by the said party of the first part to do, in the purchase of such other furniture, plate, horses, and equipages as she shall select for her own use; and shall permit her to use and enjoy the same in manner aforesaid ; provided always, that in case of any attempt by any person to sell or remove the said furniture or other chattels out of the personal care and custody of the party of the first part, without the consent of the trustees, they shall forth with take possession thereof, and convert the chattels so attempted to be removed or sold, into money, and shall hold the said money upon the trusts and for the uses set forth in this indenture; and in all the cases in which any order or direction shall be given by the said party of the first part it shall be in writing, and be signed by her in presence of one witness at least.
Sixthly, That in case of the decease of the said trustees, or either of them, others shall be nominated by the party of the first part (if she see fit so to do), to be appointed as trustees in the place of the deceased; and upon such nomination being made and notified to the surviving trustee, he shall forthwith, if such person be suitable, make and execute all such instruments in the law as shall be needful in the opinion of counsel, to associate such person in the said trust, and to transfer and convey to him the same interest in the trust estate, with the same powers over the same, and subject to the same duties, as are vested in and assumed by the parties of the second part in and by this instrument and the laws of the land. And in case either of the said trustees, the parties of the second part, or their successors, shall wish to resign said trust, they shall be at liberty to do so, first giving reasonable notice to the party of the first part, that she may find some suitable person, who shall be acceptable to the remaining trustee, to assume the said trust in place of the trustee resigning; and the same proceedings shall then be had for the introduction and appointment of a new trustee as are above