expressly authorizes divorces to be granted, when the marriage took place, or the cause of divorce occurred out of the State, we are bound to recognize the full validity of foreign divorces.

the court, having jurisdiction, to act. But the thing acted upon and which is determined by the decree, is, the status of the parties. Every State has authority to determine the status of parties domiciled therein. Strader v. Graham, 10 How. 82; see p. 86. Sewall v. Sewall, 122 Mass. 156. Hence the State having jurisdiction to decree divorce, is, not the State where the marriage was solemnized, nor the State where the offence was committed, but the State where the parties are domiciled; and, after much diversity in the earlier decisions, this is now the accepted rule. The same rule is recognized in England. Harvey v. Farnie, L. R. 6 Prob. Div. 35; Firebrace v. Firebrace, L. R. 4 Prob. Div. 63; and see Niboyet v. Niboyet, L. R. 4 Prob. Div. 1. Statutes prescribing the length of residence necessary to entitle a party to sue for divorce do not establish the rule that domicile is necessary, but only regulate its exercise. Hence a statute, or a provision in a constitution, authorizing a non-resident to maintain a suit for divorce against a person temporarily in such State, but not domiciled therein, is held not valid beyond the limits of the State. Hood v. State, 56 Ind. 263; Van Fossen v. State, 37 Ohio St. 317. A divorce granted by a court of the State wherein both parties are domiciled, the proceedings being in accordance with the law of such State, is accepted as valid everywhere. A divorce ordered by a court of a State in which neither party is domiciled, is a nullity outside the limits of that State, and a subsequent marriage by either party is bigamy; and this is not affected by the fact that the marriage may have been solemnized, or the offence committed, or the parties or one of them should be temporarily in such State. Sewall v. Sewall, 122 Mass. 156; Hoffınan v. Hoffman, 46 N. Y. 30; Strait v. Strait, 3 MacArthur (Dist. Col.), 415; Van Fossen v. State, 37 Ohio St. 317; Hood v. State, 56 Ind. 263; People v. Dowell, 25 Mich. 247; State v. Arrington, 25 Minn. 29; Litowich v. Litowich, 19 Kan. 451; and in England, Briggs v. Briggs, L. R. 5 Prob. Div. 163.

Since the decision, by the supreme court of the United States of Cheever v. Wilson, 9 Wall. 108, it has been settled law that, for the purpose of divorce, a wife may have a different domicile from that of her husband. The same appears to be held in Santo Teodoro v. Santo Teodoro, L. R. 5 Prob. Div. 79; and compare this with pp. 67, 68, in Firebrace v. Firebrace, L. R. 5 Prob. Div. ; and p. 14 in Niboyet v. Niboyet, L. R. 4 Prob. Div. 1; also Deck v. Deck, 2 Sw. & Tr. 90. But no English court has gone farther than to say, an English wife may, under some circumstances, retain her English domicile; while in the United States a wife may acquire a new domicile. When husband and wife are domiciled in different States, each State has jurisdiction of the status of the party domiciled in it, and can grant a divorce valid there. Can it, however, determine the status of the party domiciled in the other State? Yet one party cannot be made effectively single, while the other remains married to him. The supreme court of Rhode Island in Ditson v. Ditson, 4 R. I. 87, cogently presented the view that a proceeding in divorce, being the determination of the status of the citizen, is in the nature of a proceeding in rem; that a judgment rendered at the suit of a domiciled person is binding on every person, and is therefore an effective divorce as to both parties, and, as such, is valid everywhere. This view has been growing into acceptance, though it is not universally followed. States assuming to grant such divorces cannot easily deny the same power to other States. It is now agreed that where, in such suit, the non-resident defendant is personally served, or enters an appearance, the court has jurisdiction of the parties, and the cause and its judgment is valid everywhere. In Massachusetts and New York it has been held that though a married woman is a non-resident of the State where her husband is domiciled, so that in a proper action she can be brought in by publication as a nonresident, yet her husband's domicile remains her domicile, unless she has cause for divorce against him; that in such case, the State where the husband resides is the domicile of both, and a decree of divorce pronounced therein at his suit is valid everywhere, though the wife does not appear, and is served only by publication or other substituted mode. Hood v. Hood, 11 Allen, 196; Hunt e. Hunt, 72 N. Y. 217. In several States it has been expressly held that where the parties have different domiciles, a divorce granted in either State at the suit of the party domiciled therein, though the non-resident party does not appear, and is served only by publication, is valid everywhere. Harding v. Alden, 9 Greenleaf, 140; Ditson v. Ditson, 4 R. I. 87; Garner v. Garner, 56 Md. 127: Thompson v. State, 28 Ala. 12; Cooper v. Cooper, 7 Ohio R. 594; Cox v. Cox, 19 Ohio St. 502; Shafer v. Bushnell, 24 Wis. 372. The inclination in New Jersey seems the same way. Doughty v. Doughty, 28 N. J. Eq. 581; Yorston v. Yorston, 32 N. J. Eq. 495. But it is held in New York, where divorce

The mode of proceeding properly belongs to the sixth part of these lectures, and will be there described. In the mean time, I may here remark, that the application for divorce is, in most respects, a chancery proceeding. But to avoid the possibility of collusion. between the parties to procure a divorce, their confessions can only be received in evidence when there is no reason to suspect connivance, fraud, or other improper means or motives. (a) And as the inclination of wise judges is against granting divorces where they can be refused, the case must be fully made out, in order to succeed. Should it appear necessary, during the pendency of proceedings, to provide for the support of the wife, the court will make an order for that purpose, and the allowance will be made large enough to enable her to carry on the suit; (b) and in the final decree, permanent provision is made for the wife, if she deserve it; and for the custody of the children, if there be any. (c)

When husband and wife are divorced, they become single persons, to all intents and purposes; but by express provision, their children are not thereby rendered illegitimate, whatever may be the cause of divorce. Indeed, it may be questionable whether our law regards any marriage as void ab initio; and if not, the children would be legitimate without such provision. If the divorce be for the fault of the husband, the wife is restored to all her realty, and receives such part of her husband's property as the court shall think proper. This would seem to cut off his right by curtesy, to be described hereafter. If the divorce be for the fault of the wife, she is barred of her dower, to be described hereafter; and the whole provision to be made for her rests in the discretion of the

a vinculo is granted only for adultery, that at least in cases where the foreign divorce is so granted against a citizen of New York for an offence not recognized as a ground of divorce in New York, the divorce will not be recognized in New York; and the defendant in such suit, subsequently marrying in New York, is guilty of bigamy. People v. Baker, 76 N. Y. 78, overruling Baker v. People, 15 Hun, 256.

A suit for alimony, whether it is connected with a prayer for divorce or constitutes a separate action, is a personal action. The court has no jurisdiction to render a personal judgment for alimony against a non-resident husband, unless he appears to the action, is or personally served. An action may be brought for alimony after divorce has been granted. Cox v. Cox, 19 Ohio St. 502.

(a) Holland v. Holland, 2 Mass. 154; Billings v. Billings, 11 Pick. 461; Hansel v. Hansel, Wright, 212.

(b) Wright's Rep. 104, 120, 245, 308. But see Coffin v. Dunham, 8 Cush. 404; Baldwin v. Baldwin, 4 Gray, 341.

(c) In determining whether the father or mother shall have the custody of the child, neither party is considered to have any rights inconsistent with its welfare, und the order of the court will be made with a single reference to its best interests; and facts bearing on that question ought not to be excluded by any technical rule of evidence. Gishwiler v. Dodez, 4 Ohio State, 615. It is the practice to consult the wishes of the child where a parent seeks to recover it from the custody of a person to whom the parent has committed it to be brought up and instructed. Curtis v. Curtis, 5 Gray, 535; Gardenhire v. Hinds, 1 Head (Tenn.), 402; post, p. 267. Where the court of common pleas in a divorce case has decreed the custody of the child to one of the parties, their jurisdiction is a continuing one, and a probate court cannot afterwards interfere with the custody of the child, either by habeas corpus or granting letters of guardianship. If circumstances require it, application should be made to the same court to modify the existing decree. Hoffman v. Hoffman, 15 Ohio State, 427.

court. The custody of the children, as before remarked, is also provided for by the court.

§ 106. Rights of the Survivor in case of Death. When the husband dies, the most important right of the widow is that of dower, which will be particularly described when we come to treat of property. Suffice it here to say, that it includes a life-interest in one-third part of all the realty owned by her husband at any time during the coverture; and of this no separate act of his can deprive her. In the worst shipwreck of his affairs, this is her plank of safety, unless she has with her own hand cast it away. If she lose her dower, it can only be by her own voluntary act. She may also remain in the mansion-house one year free of charge, unless her dower be sooner assigned, in the way to be described hereafter. In England, the period was only forty days, which was called her quarantine. With respect to the personalty of her husband, she is entitled to a reasonable allowance for the support of herself and the children under fifteen years of age, for one year, to be set off by the appraisers; and if the personalty be not sufficient, it may be charged upon the realty. (a) She also has a right to use a variety of household articles specified in the statute so long as the minor children live with her, and if there be no minor children, they are hers absolutely. These rights take precedence of all the husband's debts, except for the last sickness and funeral. After the debts are paid, if there be no children, she has all the residue of the personalty. If there be children, she has one-half of the first four hundred dollars, and one-third of the residue. With respect to the property which was originally hers, if there be no curtesy, she at once resumes her control over the realty; and if there be any of her choses in action not reduced to possession by the husband they again become hers. (b) She also has the first claim, if she be a suitable person, to administer upon the estate, and be guardian of the children.

(a) Such allowance confers a vested right to property, and is not divested by death or any other contingency occurring after the amount has been fixed and allowed by the proper tribunal. Dorah v. Dorah, 4 Ohio State, 292. See Adams v. Adams, 10 Met. 170. The widow is entitled to the allowances, although she elects to take under the will. Collier v. Collier, 3 Ohio State, 369. Where the appraisers neglected to set off the widow's allowance, and she died after the expiration of the year without having waived or relinquished her right to such allowance, it survived to her personal representative. Bane v. Wick, 14 Ohio St. 505. Where the allowance has been made, it may be increased on the application of a creditor of the widow, filed after the year, and after her death. Sherman's Ex'r v. Sherman, 21 Ohio St. 631.

(b) It was formerly held that a judgment recovered by the husband was not a reducing to possession, so as to cut off the wife's survivorship, without execution; but that a decree alone was sufficient. But the rule would now seem to be that if the husband sue alone, either a judgment or decree cuts off the wife; and if he join the wife in the suit, then neither cuts her off. When, however, the husband or his creditors go into equity to subject the choses in action of the wife, that court will go very far to protect her interest, and secure her a support. 2 Kent, Com. 137-143; Clancy on Husband and Wife, 115; Parsons v. Parsons, 9 N. H. 309; Wheeler v. Moore, 13 id. 478; Marston v. Carter, 12 id. 159; Poor v. Hazelton, 15 id. 564; Davis v. Newton, 6 Met. 537; Carter v. Buckingham, 1 Handy, 395. Needles v. Needles, 7 Ohio State, 432.

When the wife dies, the husband acquires an important right, somewhat analogous to dower, which is called curtesy, and will be described hereafter; suffice it here to say, that it includes a lifeinterest in all the realty belonging to the wife. As to her personalty, we have seen, that, with the exception of choses in action, it is already absolutely his, by the mere fact of marriage. And as to her choses in action, they become his by being reduced to possession. If before her death he has not reduced them to possession, he may by the common law do this as administrator, and so make them his. But under the law of this State, I doubt if this be the case. He may act as her administrator, and so collect her debts; but when collected, it would seem that they must be disposed of as assets are in all other cases of administration.

Finally, when husband or wife dies, and there is no relative of the deceased, however remote, to inherit the property, the survivor is the heir. (a) Why the most distant relative that can be hunted up should thus be preferred as heir before the nearest and dearest of all human relatives, I cannot understand: but so it is; and husband and wife can only be heirs to each other when no other heir can be found, and when the property would otherwise escheat to the State.

I have thus taken a general view of the relation of husband and wife; and the sum is this: Woman, married or single, has no political rights whatsoever. While single, her legal rights are the same as those of man. When married, her legal rights are chiefly suspended. When she becomes a widow, these rights revive, and liberal provision is made for her support; but, from first to last, man has the advantage. Blackstone closes his chapter with an eulogium on the laws of England, for their liberality towards woman. How little this is deserved, is manifest from what has already been said. Our law is vastly more liberal towards woman than the English law; yet even here she has too much reason to regret that her lot has not fallen under the dominion of the civil law. I can see neither policy, justice, nor humanity in many of the legal doctrines with respect to married women. But there is one evil in the system which pre-eminently calls for correction. I refer to the entire helplessness of a married woman, when her husband becomes a prodigal or spendthrift. If he take care to give no cause of divorce, she has no means of providing against the utter ruin which she sees approaching. He may squander a personal estate worth a million of dollars, and leave a wife and children paupers, and the wife cannot, in this State, invoke the aid of a court to prevent it. Some of the other States have provided for such a case; others have secured to her use her own separate property, whether personal or real; (b) and there is evidently a strong

(a) This has been slightly modified since the text was written. See lecture on Title by Descent. The husband and wife succeed to each other if there are no children or their legal representatives. Act of April 17, 1857.

(b) We have seen that this has now been done in Ohio. As to the jurisdiction of

tendency in public opinion towards securing to her some of the more important legal rights.

equity in cases where the rights of married women are involved, see 2 Story, Eq. Juris. ch. xxxvii.

NOTE. - The text states the position of a married woman in relation to property as held by courts of law: her position in courts of equity was different. When a woman, having property held in trust for her, married, the trustee could pay the income to her husband, and his receipt would be a full acquittance. But if the trustee refused to pay him, and the husband went into a court of equity to have such payment enforced, the court at an early day established the rule that it would see that a suitable provision was settled upon the wife out of the property as a condition of giving any relief to the husband. When property was devised, bequeathed, or conveyed to a trustee for the separate use of a woman, whether before or after marriage, she held the property free from the control or interference of her husband. It was next held that if property was given to a woman to be held to her separate use, the instrument making such settlement separated the legal estate from the beneficial interest, and, upon her marrying, her husband took only the legal estate as a dry trust, the wife retaining the beneficial interest as her separate property. And it was established by Taylor v. Meads, 4 De Gex, J. & S. 597, that a married woman, where not restrained from alienation, has, as incident to her separate estate, and without any express power, a complete right of alienation of that estate by will.

As a necessary incident to her separate property, she could charge it, that is, subject it to payment for her debts. It was early held that she could so charge it by her general engagements, or bonds, bills, notes, or other written obligations, which made no reference to her separate estate. It was held by Turner, L. J. in Johnson v. Gallagher, 3 De Gex, F. & J. 494, that this is true of her general engagements, using the word in a wider sense as including her verbal engagements and debts contracted without any express promise to pay; but that" in order to bind the separate estate by a general engagement, it should appear that the engagement was made with reference to, and upon the faith or credit of, that estate, and whether it was so or not is a question to be judged of by the court upon all the circumstances of the case." The rule so stated has been since followed, and accordingly her separate estate is charged by her joining her husband in signing a joint and several note for money lent to him. Davies v. Jenkins, L. R. 6 Ch. Div. 728.

This charge upon the estate is not a lien or an appointment, but a liability of the estate to be taken in payment by decree, as a man's property may be taken on execution. Hence the charge will be defeated by a mortgage for full value, or by a conveyance of the estate, before the creditor obtains a decree subjecting it to payment. Johnson v. Gallagher, 3 De Gex, F. & J. 494. The charge can be enforced only against such property as was her separate estate when the engagement was made, and only so much thereof as remains when the decree is pronounced; not against what has been subsequently acquired, nor against what has been subsequently conveyed or assigned. Pike v. Fitzgibbon, L. R. 17 Ch. Div. 454.

The English rule as to the capacity of a married woman to charge her separate estate by her general engagements has not been uniformly followed in the United States. In Rhode Island, Pennsylvania, South Carolina, Tennessee, and Mississippi, it has been held that she cannot alienate, encumber, or charge it, unless express power is given thereto in the deed of trust or settlement. But in most of the States statutes have been enacted substantially making all her property separate estate. As a vested right cannot be taken away by statute, and a husband had vested rights in his wife's general property, these statutes do not apply to property owned, at the time of their enactment, by married women. Under these statutes the husband generally has no estate in his wife's property during her life, while he retains his curtesy in her realty after her death. While in some States she can convey or encumber her property by her sole deed; in most, she can do so only by deed or mortgage executed jointly with her husband. Generally she can, jointly with him, mortgage it for any valuable consideration, whether moving to her or not. But in Georgia, where she is not allowed to be surety for her husband, her mortgage for that purpose is void. And where, as in Alabama, and Mississippi, her statutory property can be only for the purposes stated in the statute, her mortgage for any other purpose is void.

The courts all agree that the engagements of a married woman do not charge her separate estate unless she intends them to do so at the time she enters into the engagement; but they differ as to what is competent evidence, as to what is presump