LECTURE XXVIII. OF HUSBAND AND WIFE. THE legal effects of marriage are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union. (a) From this principle it follows, that at law no contracts can be made between the husband and wife, without the intervention of trustees; for she is considered as being sub potestate viri, and incapable of contracting with him; and except in special cases, within the cognizance of equity, the contracts which subsisted between them prior to the marriage, are dissolved. (b) The wife cannot convey lands to her husband, though she may release her dower to his grantee; nor can the husband convey lands by deed directly to the wife without the intervention of a trustee. (c) The husband may (a) Co. Litt. 112 a, 187 b. Litt. sec. 168, 291. 1 Blacks. Com. 441. The jus mariti, where it is not restrained by special contract, exists with equal force and extent in the Scotch law. The husband acquires the same power over the person and property of the wife, and she is subjected to similar disabilities. Erskine's Inst. b. 1, tit. 6, sec. 19, 22. Stair's Inst. b. 1, tit. 4, sec. 13, 16. (b) The disability of husband and wife to contract with each other is founded in the wisest policy, and is an essential muniment to the inviolability of the nuptial contract, and to the maintenance of the institution of marriage. The consequent dependence of the wife upon the husband, and the continued liability of the husband to support the wife, and the other incapacity of the parties, by their own mere will, to absolve each other from the reciprocal rights and duties which the law of their contract imposes upon them, furnishes powerful motives to the promotion of harmony and peaceful cohabitation in married life. Marshall, J., in Simpson v. Simpson, 4 Dana's K. Rep. 142. (c) Co. Litt. 3, a. Litt. § 677. Martin v. Martin, 1 Greenleaf's Rep. 394. Rowe 1 Where the husband executed an attested instrument, giving and granting a freehold house to his wife: held, that the gift was incomplete, and the relationship of trustee and cestui que trust was not created. Price v. Price, 8 Eng. L. & E. R. 271. To constitute a gift between husband and wife, there must be either a gift to a trustee 10 VOL. II. devise lands, or grant a legacy to his wife, for the instrument is to take effect after his death; and by a conveyance to uses, he may create a trust in favor of his wife, (a) and equity will decree performance of a contract by the husband with his wife, for her benefit. (b) The general rule is, that the husband becomes entitled, upon the marriage, to all the goods and *130 chattels of the wife, and to the rents and profits of her lands, and he becomes liable to pay her debts and per form her contracts. According to the plan of these general disquisitions, I cannot undertake to enter minutely into the numerous distinctions and complex regulations which appertain to the relation of husband and wife. My purpose will be answered if I shall be able to collect and illustrate the leading principles only; and that I may be able to do this clearly, and to the satisfaction of the student, I shall consider the subject in the following order : 1. The right which the husband acquires by marriage in the property of the wife: 2. The duties which he assumes in the character of husband: v. Hamilton, 3 Greenleaf's Rep. 63. Stickney v. Borman. 2 Barr's Penn. R. 67. Shepard v. Shepard, 7 Johns. Ch. 60. But though such a conveyance would be void at law, equity will uphold it in a clear and satisfactory case. Wallingsford v. Allen, 10 Peters's Sup. Court Rep. 583. See infra, p. 162. But a court of equity has no jurisdiction, even with the consent of the wife, to transfer to her husband personal property settled in trust for her, and to be hers absolutely on surviving her husband. Richards v. Chambers, 10 Vesey, 580. (a) Co. Litt. 112, a. (b) Moore v. Ellis, Bunb. Rep. 205. 537. Shepard v. Shepard, 7 Johns. Ch. Livingston v. Livingston, 2 Johns. Ch. Rep. for the wife, or the husband must divest himself of the property, and engage to hold it as trustee for the separate use of the wife. Mews v. Mews, 21 Eng. L. & E. R. 556. See Fisk v. Cushman, 6 Cushing R. 20, post, 146, [163.] It is held in Alabama, that the husband may at any time during his life revoke the gift of property which he has purchased, and holds as trustee for his wife. Gannard v. Eslava, 20 Ala. 782. When the husband and wife are each next of kin to an intestate, each is entitled to a distributive share of the estate. The doctrine that husband and wife are one person in law, does not apply to such a case. Knapp v. Windsor, 6 Cushing, R. 156. Under recent statutes in Maine, a husband may convey directly to his wife; and the property in a note passes to her by the husband's indorsement. Johnson v. Stillings, 35 Maine, 427. Motley v. Sawyer, 34 Maine, 540. And see Davis v. Herrick, 37 Id. 397. 3. How far the wife is enabled by law to act during coverture, as a feme sole: 4. Her competency, in the view of a court of equity, to deal with her property: 5. Other rights and disabilities incident to the marriage union.1 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. 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. 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. 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: I. The right which the husband acquires by marriage in the property of the wife. (1.) To her lands in fee. If the wife, at the time of marriage, be seised of an estate of 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, in the same manner as if she were unmarried. 4. Married women, then entitled to trust estates, were authorized 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. There has been, as yet, but a slight examination of this important statute in the courts of New York. In Snyder v. Snyder, 3 Barb. S. C. Rep. 621, it was decided that the act did 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. (Law,) 405. 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. Does the estate by the courtesy remain even after the death of the wife? Does the husband succeed to the wife's personal estate in any character whatever? Is the husband bound for the debts of the wife, no longer receiving property by her? 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. Since the preceding part of this note was written, it has has been decided, that, although under the statute 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 courtesy. Hurd v. Cass, 9 Barb. R. 366. Smith v. Colvin, 17 Barb. 157. A similar statute has been passed in Maine. Laws, 1852, ch. 291, p. 280. In further construction of this statute, it has been held, that the wife cannot convey to her husband her dower-right in his lands. Graham v. Van Wyck, 14 Barbour, R. 531. The statute shall not be construed to affect the husband's vested interest in a legacy bequeathed to the wife prior to its enactment, though not then reduced by him to possession. Westervelt v. Gregg, 2 Kern. 202. It has been held further that 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. 660; Sleight v. Read, 18 Barb. 159. By Statutes of Maine, Laws of 1852, ch. 227, 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. inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and 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 courtesy. 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, without having had issue, her heirs immediately succeed to * 131 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 courtesy, 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. (b) 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 (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, Codification of the Statute Law of Georgia, 1845, p. 426. (b) Weller and others v. Baker, 2 Wils. Rep. 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. 1 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. R. 170. 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. R. 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. 572. |