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Cornell Law School Library
 
A TREATISE

ON THE LAW OF

DOMESTIC RELATIONS

AND

THE STATUS AND CAPACITY OF NATURAL
PERSONS AS GENERALLY ADMINISTERED
IN THE UNITED STATES

BY pod
EDWARD W. SPENCER ~

ne
OF THE MILWAUKEE BAR

THE BANKS LAW PUBLISHING CO,
NEW YORK
1913
(a shob!

Corrrigut, 1911, sy
THE BANKS LAW PUBLISHING COMPANY
 

PREFACE

THE primary purpose of this book is to present to
lawyers and students at law the leading principles of
what may fairly be regarded as the Modern Law of Do-
mestic Relations and non-corporate status and capacity,
with enough of detail to enable the latter to understand
and apply in practice the various statutes and decisions
which the subject-matter involves. The several topics are
treated with rather more regard to the conflict of laws
particularly as between the several states of the Union,
than is usual in other works of similar scope and pur-
pose. It is hoped that the latter feature may increase
its value to students and lawyers and make it.a more con-
venient handbook for legislators, students of sociology and
others who are striving for better local provisions, partic-
ularly regarding marriage and divorce, or who are con-
sidering more sweeping reforms, whether through concur-
rent state legislation or through amendment to the federal
constitution and subsequent action by Congress.

It has seemed advisable to treat specially of the rela-
tion of teacher and pupil, and, in view of the growing
importance of the subject, to discuss the foundation and
nature of the modern jurisdiction over delinquent, aban-
. doned and neglected children. A short chapter has also
been added upon the legal status of convicts. The title
Master and Servant is practically omitted, however, for it
seems to be generally conceded that under our law it has
ceased to be a domestic relation in any appropriate sense
or to involve what may properly be termed status or ca-
pacity, and that it is referable in the main to the law of
contract and representation.

No attempt at exhaustive citation has been made.

iii
iv PREFACE

While leading cases are often cited, they have by no means
been preferred to more modern ones, where the latter
have seemed to better illustrate the application of rules
and principles or indicate the history, present condition
and apparent trend of the law, or where they furnish
keys to the authorities, particularly on debatable or un-
settled points, or reviews of them that could only be
given at a considerable sacrifice of space. Because of
this plan, and because of their accessibility where com-
plete libraries cannot be found, much reference has nat-
urally been made to those series of selected cases known
as the American Decisions, American. Reports, and Amer-
ican State Reports, and the Lawyers’ Reports Annotated,
and to the valuable notes that these reports contain.

Those especially interested in the origin and develop-
ment of our matrimonial institutions can gain much from
the scholarly work of Professor Howard, ‘‘A History of
Matrimonial Institutions” (Chicago University, 1904),
however widely their conclusions may sometimes differ
from his regarding the modern sociological problems in-
volved. For the latest published. statistics on marriage
and divorce embracing the period from 1887 to 1906, see
Bulletin 96 of the Census Bureau. Earlier statistics are
given or epitomized in Professor Howard’s work.

E. W.S.

MILWAUKEE, WISCONSIN,
December, 1910.
CONTENTS

INTRODUCTORY
STATUS AND DOMBSTIC RELATIONS IN GENERAL—STATUS AND DOMICILE
CONSIDERED

Secrion
Scope of Subject—In General.............0.00...0..00000.0000, 1
Status in Relation to Sex.........0. 0... c cece cee eee eee 2

DOMICILE CONSIDERED IN ITS RELATION TO STATUS
Nature and Significance of Domicile.....................004. 3
Kinds of Domicile and General Rules Touching................ 4
Significance of Domicile in Relation to Status................. 5
CHAPTER I

EXECUTORY CONTRACTS TO MARRY AND TRANSACTIONS AFFECTING
FREEDOM OR SECURITY OF MARRIAGE

The Contract to Marry—In General....................00005 6
Inducing Breach of Marriage Promise.....................-.- 7
Peculiarities of the Contract. .............. 000. c eee eee eeee 8
Parties. 5-3 a5 ¢de ne yeh peas ues Meee Vee dey ew Pas eyes 9
Lhe: COnsidePationy «dixie csceiwk thomas oeaaed aaeen ead aiels elses wad 10
Legality of the Contract to Marry................ ue A 11
Fraud and Deceit—In General...............000000 0c eee eee 12
Same—Misrepresentation. ..............0:e cece cece eee eeeee 13
Same—Concealment: a..c 4 do 24 224435 Bees ee REESE IG A Ce MS 5 BS 14
Mistake—Disease Making Marriage Dangerous............... 15
Formal Requisites of Contract—Statute of Frauds............. 16
The Agreement—Mutuality......... 0.0.0... cece eee eee 17
Same—Proof of the Contract to Marry................000005. 18
Breach of the Contract to Marry....... diam lee bane eee ieee 19
Same—Anticipatory Breach................. 0. cece eee eee 20
Same—Conditional Promises.................0.00ceeeeeeeee 21
The Defenses—Unchastity.............0..0 0c cee e eee eee ee 22
Same—Drunkenness and Other Misconduct.................. 23
vl CONTENTS

Section
Same—Release, Rescission and Renewal....... fear hee eee 24
Remedy for Breach of Promise—Nature of Suit............... 25
Same—Does the Cause of Action Survive............... sibeietats 26
The Damages. ... 0.6.0.0... 000 cece e eee Tisai ten Send deine 27
Circumstances in Aggravation and Mitigation,................ 28
Sind Senib Uv y uhiuwreracedetucereshateeianasceerwdue 29
Exemplary Damages................000 eee cece eee eens ~30

TRANSACTIONS AFFECTING THE FREEDOM AND SECURITY OF MARRIAGE

Legality—-In General—Unreasonable Restraints.............. 31

Marriage Bocage Contracts............... 0.0 c cece cece eee 32

Contracts Promotive of Separation and Divorce............... 33
CHAPTER IT

WHAT CONSTITUTES MARRIAGE-REQUISITES AND VALIDITY—-ELEMENTS

Marriage Defined—Nature of Relation....................... 34
Void and Voidable Marriage Distinguished—Temporal and Eccle-
Siastical La Wied. ae cons me 3) dhe awl ed Sa fe Ra 35
Void and Voidable Further Considered....................... 36
Elements of a Valid Marriage—Generally.................... 37

CHAPTER III -

REQUISITES AND VALIDITY OF MARRIAGE CONTINUED—COMPETENCY
TO MARRY—-WANT OF AGE--MENTAL AND PHYSICAL INCAPACITY

Competency to Marry—In General....................0.0.00- 38
Want of Age at Common Law................... alg antnomeencel 39
Statutory Changes. ..... 0.0.0.0 cece cee ccc ee cece ees 40
How Infant Marriage Is Avoided—Ratification............... 41
MENTAL INCAPACITY
In General—Nature and Extent of Mental Incapacity.......... 42
Same—Inquisition and Finding of Lunacy atthe iottd iuahcke waetac a eoere dk, 43
Drunkennesss¢:s:sasciia ven soba dd Ra bp nee ad Eee bbe So aea a 44
Evidence of Mental Incapacity............. 0.0... ccc ce eeaeee 45
Effect.of Mental Incapacity—Ratification and Avoidance...... . 46
PHYSICAL INCAPACITY
In: Getietal: ses cave shine aie oh ace Rasch Sbded whe ae Ques rao 47
Impotency Defined—What Constitutes...................0.. 48

Who Entitled to Decree... 2.0.0.0... ccc cence eee aee 49
CONTENTS Vit

SECTION
Jurisdiction to Render Decree...............cccceeeeeee cues 50
The Evidence of Impotency...............0c0ccueeeeueeeees 51
Other Impediments Based upon Personal Defects.............. 52

CHAPTER IV

COMPETENCY TO MARRY CONTINUED—RELATIONSHIP, DIFFERENCE ‘OF |
RACE AND PRIOR MARRIAGE UNDISSOLVED—IMPEDIMENTS FOLLOW-

ING DIVORCE
Relationship as an Impediment—In General.................. 53
Same—The Law of England...............-.. cece eee eeeees 54
Same—The American Law............. 2.0 e eee eeeeeeeecees BS

Effect of Marriage Within Prohibited Degrees of Relationship... 56

DIFFERENCE OF RACE'AS AN IMPEDIMENT TO MARRIAGE

Un Geren al sfc setae ct re Shean se ae Seed ate a a era ee 57
Same—Constitutionality and Effect of Statutes............... 58
Civil Status—Slave Marriages....... h cng sho cus es ea MeN Fk BY 59

PRIOR MARRIAGE UNDISSOLVED

In General—Bigamous Marriage Void..................c000- 60.
Collateral Results. ....... 0.2... c cece cece cece cece eens yee 61
Status of Parties Where First Marriage Is Dissolved............ 62
Belief that Prior Marriage Was Dissolved..................-- 63

IMPEDIMENTS FOLLOWING DIVORCE

Marriage After Void or Voidable Decrée...............----56. 64

Marriage After Limited: Divorce or Decree Nisi..........,....- 65

Impediments Following Absolute Divorce................-+-. 66

Marriage During Time for Appeal..................00ceeeeee 67
CHAPTER V

FRAUD, ERROR AND DURESS AS AFFECTING MARRIAGE

Fraud in General—Marriage Compared with Engagement to

MBIT css eee cde oS eee DE e aE Ree ed crew 68
What Misrepresentation or Concealment Sufficient to Vitiate. ... 69
Same—Prior Marriage—Unchastity or-Pregnancy............. 70

Game— Diseases x6. dae yee oe Su seh ae: aes SHO gmake mueaw nade T1
Vill CONTENTS

MISTAKE AND DURESS

Szerion
Mistake........... Wala eh ashe ohne dagen aan lak cndtiaea ec ce 72
Duress—In General. .....- 0... cece cece ee ccc ee ee eee eee 73
Same—From Whom Duress Must Proceed................- 74
Same—Arrest or Imprisonment.................20 2200 ee eres 75
Same—Threats of Arrest and Imprisonment...............-.- 76
Effect of Fraud, Mistake and Duress..................-.2000- 77

CHAPTER VI

HOW MARRIAGE ENTERED INTO—CONSENT AND SOLEMNIZATION—
FORMAL AND INFORMAL CELEBRATION

Consent—In General. ........0.0 00 0c ccc cence een e ees 78
Parties Must Mean Marriage....................2 20 eee eeeee 79
Same—Indian and Mormon Marriage................ oMeceantie 80
Consent Must Be to Present, Not Future, Marriage............ 81

Secret Intention of One Party Not to Marry—Mock Marriage.. 82

CHAPTER VII

FORMAL AND INFORMAL MARRIAGE CELEBRATION—THE SO-CALLED
COMMON-LAW MARRIAGE

In General—How Far Formal Celebration Necessary at Common

Law—Statutory Changes... ............ 0.00 c cece eee ees 83
History of Informal Marriage...................02 22 2c eee eee 84
Same—Common Law in America..................00000005- 85
How Far Common Law Superseded by Statute................ 86
How Marriage Statutes Construed............. est aedote ene a8 2 87
The General Doctrine of Informal Marriage................... 88
Same—Consent Per Verba De Preesenti...................2-. 89
Same—Consent Per Verba De Futuro, Cum Copula............ 90

FORMAL CELEBRATION OF MARRIAGE
Dn Gener al sine viele See Cah Sohdaatee cite hae pals th Pee ee has 91
Steps Precedent to Ceremony—License—Consent of Parents, etc. 92
The Celebrate :..0 cc. os acsea ci de ove 2 Lode ede ve ae cae ses 93
Other Formalities—Curative Acts..................0.000000- 94

CHAPTER VIII

FOREIGN MARRIAGES-—CONELICT OF LAWS

Tn Generals sis2c ascii Beta eee oS alee eee eae Seamed 95
As to Formalities Preceding and Accompanying Celebration. ... . 96
As to Capacity to Marry. ...... 0.0... cece cece eee eens 97
CONTENTS ix

Srcrion
Marriages Odious to Good Morals or Public Policy............. 98
Same—Miscegenatous Marriages...................00000005 99
Marriage in Face of Prohibitions Following Divorce............ 100
Marriage Void Where Celebrated..................00..0000 101
Rights Collateral to Marriage... .......0.. 0.0.0.0 cece eee eee 102
CHAPTER IX
EVIDENCE AND PRESUMPTIONS OF MARRIAGE

PnGien eral ts < pene edge ai eensa eres s eee nee eee 103
Direct Evidence—Proof by Record—Witnesses, etc............ 104
Indirect Evidence of Marriage—Presumptions................ 105
Same—Cohabitation, Acknowledgment and Repute........... 106
Same—Cohabitation Illicit at Beginning..................... 107

Further of the Presumptions of Marriage—Conflicting Presump-
tions—Criminal Cases—Criminal Conversation............. 108
Same—Presumption of Death or Divorce.................045. 109
Proof of Foreign Marriage. ...............0 00 cece eeee ee eeees 110

CHAPTER X

HUSBAND AND WIFE—PERSONAL RIGHTS AND DUTIES OF THE SPOUSES
Tri Glen Grell es .o.455. eran sell eal sees nig Sasa eialla wea aera ame eee 1
Same—Common-Law Theory of Coverture................... 112
Mutual Rights and Duties—In General...................... 113
Right of Matrimonial Cohabitation and Intercourse............ 114
Right of Personal Control and Discipline..................... 115
Right to Confer Family Name............... 0.0... eee e eee 116

Right to Fix the Family Residence or Domicile—Citizenship of
Wakes skate een 4 tens caer dl Caer lsc aban cans 8 aed nce eo cae 117
Right to Regulate the Family Home......................... 118
Husband’s Duty to Support Wife—In General................ 119
Same—Where Husband and Wife Live Together.............. 120
Same—Where Husband Neglects Duty...................... 121

Same—Husband and Wife Separated—Forfeiture or Suspension
of Wife’s Right to Support...............0... cece eee eee 122
Same—Effect of Notice on Husband’s Liability................ 123
Same—What Deemed Necessaries............ 2.0000 eeeeeaee 124
Same—Employment of Attorney—Counsel Fees.............. 125
Miscellaneous Remedies for Realization of Support............ 126
Necessaries Furnished to Mistress..............0 000. e eeu eee 127
Right of Husband to Wife’s Services and Earnings. ............ 128
Rights and Duties of One Spouse as to Burial of the Other....... 129

Right to Fix and Change Place of Burial...................... 130
x CONTENTS

CHAPTER XI

TORTS BY AND AGAINST HUSBAND AND WIFE—TORTS BETWEEN BEOUBES

SECTION
In General—Torts Between Spouses.................00000005 131
Husband’s Liability for Wife’s Antenuptial Torts.............. 132
Liability of Husband and Wife for Wife’s Postnuptial Torts... .. 133
Same—Effect of Discoverture....................0ceeeeeeee 134
Same—Statutory Changes............... 00.0 cece eee ee eeee 135

LIABILITY OF THIRD PERSONS FOR TORTS AGAINST HUSBAND AND WIFE

In General—Torts Against. Husband...................0.005. 136
Actions for Injuries to the Wife—In General.................. 137
Same—Husband’s Sole Action...............00000e cece eens 138
Same—The Joint Action............ 00.0.2 cece cee eee eee ‘139
Statutory Changes. ......... 0... c ccc ee eee 140
Torts to Separate Property.............000 00: c cece eee eeee 141

INJURIES PECULIARLY TO THE CONSORTIUM

Tn: Generals ox. sccmeiscini cia aber Ae Maa sene «Bee bak Hueeee wud 142
Same—How Far Spouses on An Equal Footing. . Mantle aii the 143
Same—Under Statutes......000...0 00... cece eee eee ee eee 144
Seduction of Spouse—Criminal Conyerphen eta erm cale rk heals 145
Same—Defenses. . . 1.0.2.2... eee eee Jing Beg ee Oa 146
Same—The Action. .......... 00... e cece cee eee eee eee 147
Alienating Affections of Spouse—Abducting,; Enticing or Harbor-

DAD ie acs sce korea datas oe eee aaa bagh Sa haa aaneee eas 148
Miscellaneous Remedies for Wrongs to Consortium............ 149
Damages for Wrongs to Consortium.................. eee 150
Supplying Liquors or Drugs to Spouse—Civil Damage Acts... . . 151
Same—Constitutionality and Construction................... 152
Action for Death of Spouse............... 0.0: eee eee ee eee 153
Same—The Damages. ...... 0.0... 00. c cece cece eee e ene cece 154
Same—Conflict of Laws............... 0c cece cece cee eeeeee 155

CHAPTER XII

MARRIAGE AS AFFECTING CRIMINAL LIABILITY

In General—Particular Crimes..........2 00.000... cc cece eee 156
Same—Presumptions .and Effect of Husband’s Constraint—
Where Wife Is Actor................. ccc cece cece eeeees 157
CONTENTS xi
CHAPTER XII

MARRIAGE AS AFFECTING TESTIMONIAL CAPACITY OF SPOUSE

Sscrion
In General—The Common-Law Rule..................000005 158
Exceptions to Common-Law Rule—Crimes Against Each Other 159
Same—Actions for Lost Baggage—Necessaries................ 160
Same—Where One Spouse Is Agent for the Other.............. 161
Effect of Divorce or Death....... CS See aoe BR seacaSe packs ets A dase 162
Statutory Changes. .........0.0 0000000 c ccc cc ence cece ee ees 163
Same—Confidential Communications. ..................0006 164
Miscellaneous: sss us.sd se vewe seucne Wade e Soha wakes Se 165

CHAPTER XIV
PROPERTY RIGHTS AND CONTRACT CAPACITY AND LIABILITY OF HUSBAND
AND WIFE AT COMMON LAW—WIFE’S PERSONALTY—CHATTELS REAL

AND REAL ESTATE

WIFE’S PERSONALTY

In General—The Common Law..................2-200020ees 166
Wife’s Personalty in Possession at Common Law.............. 167
Wife’s Choses in Action. ...........0 0.0.0 c cece eee eee eae 168
‘What Deemed Choses in Action........... 0000: c ce eeeeee eee 169
Rights of Surviving Husband or Wife................0..0000- 170
Same—What Constitutes Reduction into Possession by Husband 171
Rights of Husband’s Creditors in Wife’s Choses in Action....... 172

WIFE’S CHATTELS REAL AND REAL ESTATE AT COMMON LAW

Wife’s Chattels Real... 0.css-ae<seus ayeke eve di Gasse esse ie 173

Rights of Husband in Wife’s Real Estate or Freeholds.......... 174

Incidents of the Husband’s Estate During Marriage............ 175

Conveyance of Wife’s Lands............0. 00. cceccueseeeeees 176

Estate by Entireties................ 20sec eee ee eee She lee ti 177

Same—Modern Status of Hstate.............. 00-2 e eee eee eee 178
CHAPTER XV

CONTRACTS OF HUSBAND AND WIFE AT COMMON LAW

In General—Husband’s Contracts............. 0. cece ence ees 179
Husband’s Liability on Antenuptial Contracts of Wife.......... 180

Husband’s Liability for Postnuptial Contracts of Wife.......... 181
xi CONTENTS

’

Suction
Wife’s Liability on Her Postnuptial Contracts at Common Law.. 182
Same—Contract Based Upon Tort—Estoppel..............--. 183
Exceptions to General Rule—When Wife’s Contracts Valid..... 184

Contracts, Conveyances and Gifts Between Husband and Wife.. 185

CHAPTER XVI

RIGHTS OF HUSBAND AND WIFE AS SURVIVORS

Rights of Husband and Wife as Survivors—In General......... 186
Widow’s Thirds. .......... 2.00. c cece eect e nent teens 187
Same—Surviving Husband’s Share...................0..006- 188
Rights of Surviving Spouse in Wife’s Equitable Separate Estate.. 189
Same—Wife’s Paraphernalia................0.00:0 ee eee eeee 190
Same—What Is Deemed Paraphernalia...................... 191
Same—Effect of Statutes............. 20... 192
The Widow’s Quarantine and Allowances...............-.---- 193

CHAPTER XVII

RIGHTS OF SURVIVING SPOUSE CONTINUED—CURTESY

In General—Defined............. cece cee cette eees 194
GAD ES I ani ais eset asoihs wl asta cian! oy doaiea cans aOR RAEN URS mimeo 195
Requisites of Curtesy—Marriage and Issue................... 196
Same—lIssue Must Be Capable of Inheriting.................. 197
Same—Estate and Seizin of the Wife......................... 198
Same—Reversions and Remainders......................0-- 199
Curtesy in Equitable and Separate Estates—Statutory Modifica-

HONS). cece Yoke Beye Akh ee eeecee renee cas 200
How Curtesy Is Defeated or Barred—Divorce................. 201

CHAPTER XVIII

RIGHTS OF SURVIVING SPOUSE CONTINUED—DOWER

Po@fMIMON: 5: eres: fe is es eae eee Ses ce et ET Dia a Se ae 202
Stages of Dower—Inchoate Dower—Power of Legislature Over.. 203
Same—Consummate Dower..............00..00ccceeeeeeees 204
Same—Assigned Dower... ........... ccc cc ceue eevee cence 205
Requisites of Dower—Marriage, Seizin and Death of Husband... 206
In What Property Wife Is Dowable.....,.................... 207
Priority Between Dower and Other Claims and Incumbrances... 208

Same—Statutory Changes. ... 0.0.0.0... 00.0 ccc eee ee ee euue 209
CONTENTS xiii

HOW DOWER IS BARRED

Sxcrion
Joinder of Wife in Husband’s Deed.............-.-.-020000e 210
Other Acts and Circumstances Defeating Dower............... 211
Same Alienage ss <5 ever sews mer enna war ee dewey See wa Edw es 212
Same—Wife’s Adultery and Elopement...................... 213
SaMe—DivVOree’. a cian dws Aa pane dananinante Ment ade anereeenks 214
Same-Jomtures sa xccescosamercaeteesee sneer tes steewias 215
Same—Provisions of Husband’s Will..................2.0085 216
Same—Lands Dedicated to Public Use....................2.- 217
Estoppel to Claim Dower..............0 0020 e cece eee ee eee es 218
Dower Barred by Lapse of Time....................0020005: 219

CHAPTER XIX

HUSBAND AND WIFE IN EQUITY—WIFE’S EQUITABLE SEPARATE ESTATE
——HER SEPARATE TRADE AND HER EQUITY TO A SETTLEMENT

WIFE’S EQUITABLE SEPARATE ESTATE

EniiGeerierall 5, puss ican See a echt aaep etn Asean eames ah deat peo eth 220
Incidents of Wife’s Equitable Separate Estate................. 221
Wife’s Equitable Separate Estate a Trust Estate—How Created. 222
Same—What Language Creates................0.0 0c cece eee 223
Power to Charge or Alienate................ ssa ieiorn ges Oh ee 224
Same—Wife’s Debts and Contracts in Equity................. 225
Same—What Property Chargeable—After Acquired Property... 226
Duration of Equitable Separate Estate....................... 227
Pini MONEY, Sencar aa assand donan dec adda nde dua eceeeeutad base ae regime 22O
Equity Rules as to Wife’s Separate Trade—Husband’s Liability. 229
Wife’s Equity to a Settlement................ 0.2 e eee eens 230
Same—Jurisdiction—Property Affected...................... 231
Rights of Children—Waiver and Forfeiture by Wife............ 232
Amount of Settlement............0.. 0... c eee ec eee ee eee 233
Effect of Modern Statutes on Wife’s Equity................... 234
CHAPTER XX

HUSBAND AND WIFE UNDER MODERN STATUTES

History and Nature of Married Women’s Acts................. 235
Conistitirbionialt ty. iassisvcesdesesgsis ice’ asad passed does aie andile tel Saami SAO 236
Construction of Married Women’s Acts................000008 237

Scope of the Statutes—What Property Is Statutory Separate Es-
tate—Property Owned at Time of Marriage............56.4. 238
Xiv CONTENTS

Secrion
Same—Property Acquired After Marriage.................--- 239
Same—Earnings and Profits of Separate Business or Employ-
MEN be saw suite we ae Si peel Cede ee mete eS 240
Registry of Schedule or Inventory of Separate Property......... 241
Life Insurance Policies and Their Proceeds..............++-++- 242
Power of Wife to Bind Herself by Contracts Under Statutes..... 243
Contracts for the Acquisition of Separate Property............. 244
Contracts for the Management and Enjoyment of Separate Prop-
erty—When Wife Bound at Law...............2.02002e eee 245
Same—Wife Bound in Equity..............2.....0 cece eee 246

What Contract, Deemed to Concern Separate Estate—Hxamples. 247
Contracts Not Involving Acquisition—Management—Enjoy-

ment or Disposition of Separate Estate..................00. 248
Power of Wife to Dispose of Statutory Separate Estate—Mode of

PMTCT SLOT sah ass cz aydesc adie goa tte Sica. hit apelay alain Rvetaee dalasd Peace ae 249
Same—Liability on Covenants—Estoppel.................... 250
Mortgages of Statutory Separate Estate.................0.0005 251
Contracts Prohibited or Declared Void by Statute............ 252
Husband’s Liability for Wife’s Antenuptial Debts............. 253
Wife’s Separate Trade or Employment Under Statutes......... 254
Wife’s Liability for Family Necessaries..................-.00. 255

CHAPTER XXTI

HOMESTEAD AND OTHER EXEMPTIONS BASED UPON MARRIAGE OR THE
FAMILY RELATION

In General. ............. suka Saree bes RAM Pa leieee Tadd oma eee o ee 256
Who. May Havesncses cen suet sev ace ee rye Haas so eae One 257
Occupancy Essential—Abandonment....................000. 258
Nature of Use or Occupancy... .......... 00. cece cece eens 259
Selection of the Homestead. .............. 00. cece eee eee ees 260
Amount or Value of the Property—Proceeds.................. 261
Fee Simple in-Claimant Unnecessary..................0000005 262
Alienation of Homestead—In General,...................... 268
Mode of Alienating Homestead—Joinder and Consent i vente fics Ge 264
Rights of Surviving Members of Family in Homestead—Power to
WDEVISC i co: shied ase ccon eh oe aSs ue au an poked awd alle pares 265
Sale and Mortgage of Husband’s Exempt Chattels............. 266

CHAPTER XXII.
THE COMMUNITY SYSTEM

Origin and Nature... ...... 0... 0c cece eee cence cree en aes 267
Incidents of Community Ownership......................00. 268

ww
CONTENTS XV
CHAPTER XXIII

MARRIAGE SETTLEMENTS AND AGREEMENTS

Sacrion
Definition—Nature and Kinds................0.0cecee cc eaee 269
Antenuptial Settlements—Consideration..................... 270
Same—Failure of Consideration............... 00... ceeeeeee 271
Oral Agreement—Statute of Frauds....................0000- 272
Same—Part Performance—Creditors.................,.0000- 273
Same—Other Formalities—Marriage Articles—Recording—Con-

SUPUCHONS sacs e xy eve Gags casi one om aes, dakee OME oy and SORE NS 274
Same—Other Considerations Affecting Form................. 275
Fraud Inter Partes..... 2.0.0.0... ccc ccc cece eee neceaees 276
Same—Antenuptial Settlements or Conveyances in Fraud of Con-

Veal Rights oy us adv caedesv te ene es Rea tk B+ Pa 277
Fraud Upon Creditors—Amount of Settlement................ 278
Property Affected sss es ees x a9.4 cine wire a BE vanity Ge iene Sed Dace . 279
Rescission and Forfeiture. ........... 0. cecccn cece eeeeeeees 280

POSTNUPTIAL SETTLEMENTS .
In General—Consideration. ............ 0.0.0 cee cece ene ee aes 281
Validity as Between the Parties................00cccceeeeeee 282
Same—Fffeet of Statutes-on Conveyances Between Husband and

Wille: sx swe ese eine eee eee es ee heen eda edit KGa acest 283
Same—Under Statutes Requiring Joinder of Husband: in Wife’s

DGC ASS aia s 2rahinc 95 aarp cc eobeeasen athe 31a Sock ad Sed cpt aioe ka dau a Bae 284
Fraud Between the Spouses—Presumptions.................- 285
Validity. of. Postnuptial Settlements and Conveyances as Against

Creditors and Subsequent Purchasers—In General........... 286
Same—tThe Statute of 13, Elizabeth—-Husband and Wife as Pur-

chasers for Value. 1.2.1... cc ccc cece een eee eennes 287
Same—Settlements by Third Persons..............00..000005 288
Same—Voluntary Settlements—Husband’s Services and Earn-

IGS a ye Ps Ss a eo ees BEA SS Ae eo ae ees eee aa 289
Validity of: Postnuptial Settlements Against Subsequent Pur-

CHASER Sido aoe cals gio isc crak bas aetigae athe esis aide uth ig aeels oamck 3 290

CHAPTER XXIV

ACTIONS BY. AND AGAINST HUSBAND AND WIFE.

In General—Suits Between Husband and Wife—Law and Equity 291

Same—Under Statutes, 0.000... 6. cece eee eee eee eee eens 292
Suits by Husband and Wife Against Third Persons............. 293
Suits by. Third Persons Against Husband and Wife............. 294

a
xvi CONTENTS

Srcrion
Process Against Husband and Wife................00-ee eee 295
Special Circumstances Affecting Wife’s Capacity to Sue........ 296
Coverture Under the Statute of Limitations..............----- 297
Judgments Against Married Women—Pleading—Estoppel...... 298

CHAPTER XXV

EVIDENCE OF OWNERSHIP BETWEEN HUSBAND AND WIFE—CONFLICT
OF LAWS AS TO RIGHTS AND CAPACITIES

Evidence and Presumptions as to Wife’s Ownership—Between

SPOUSES. 58s css la ccoigue nedaite ds aca aaa beaut e Ete oaks 299
Same—As Against Creditors—Estoppel...............--.045. 300
Conflict of Laws as to Property and Contracts of Husband and

Wiles se cere oki datdas ye readadwwaeiiatsaeehes Bee au elas 301

CHAPTER XXVI

WILLS OF HUSBAND AND WIFE

Effect of Marriage Upon Wills of Husband—Common Law...... 302
Same—Statutory Changes. ...........0..00 000 eee ee eens 303
Wife’s Election Whether to Take Under the Will or the Law... .. 304
Effect at Common Law of Marriage on Wills and Testamentary
Capacity of Wiles . 2:6 ossaeein isa ttadadaediessacwa tua bees 305
Wills of Wife’s Equitable Separate Estate.................... 306
Wills of Married Women Under Statutes..................... 307
Effect of Divorce Upon Wills of Spouses..................225. 308

CHAPTER XXVII

AGENCY BY AND BETWEEN HUSBAND AND WIFE—SPOUSES AS CO-

PARTNERS
General Rule..................... dh gestae ete Ra Atel nae, Gs 309
Wife as Agent for Husband................. 0.000. .c eee eee 310
Same—Wife’s Agency Where Husband Absent................ 311
Husband as Agent of Wife............0 0.00. c cece eee ceca 312
Husband and Wife as Agents for Third Persons................ 313
Revocation of Agency by Marriage..................0000000. 314

SPOUSES AS CO-PARTNERS

Husband and Wife as Co-Partners—The Common Law......... 315
Same-—In Equity and Under Statutes...............0cceeeee. 316
CONTENTS xvii

CHAPTER XXVIII

SEPARATION AND DIVORCE—NATURE AND KINDS—LEGISLATIVE

DIVORCE
Section
Tx erier all saccades cca iv Saevaed saute la lorliclowsasto ac Gee odatanaid aaanlaatcs 317
Informal Separations. ...........0 0.00. c ccc cc eect nee ees 318
Separation Under Articles—In General..................005. 319
Same—Validity—Public Policy. ..........0..0. ccc cece neces 320
The Ruléin Wngland o952.2: suse acapented seen panteke eaeons 321
Form of Separation Agreements. ..........0... 000s cence eens 322
Stipulations as to Custody of Children..............40.000005 323
Effect of Separation Agreements............-.....: eevee eees 324
Avoidance and Termination................ 0.0 cece eee eens 325
KINDS OF DIVORCE

In General—Defined and Distinguished...................... 326

Consequences of the Distinction Between Absolute and Limited
DIVOPCRL ces sidss agvend cceaions cued a as rite Oc age oa key ata aeeese Se 327
Decree of Nullity and Divorce Distinguished.................. 328
Confusion of Divorce and Nullity Under Statutes.............. 329

LEGISLATIVE DIVORCE

History and Validity. ................ 0. ccc c cece cece eee 330

CHAPTER XXIX

JURISDICTION TO GRANT DIVORCE—CONFLICT OF LAWS

Jurisdiction in General........... 0.000 c cece eee eee eee eens 331
How Far Divorce Jurisdiction Statutory..................... 332
Divorce Jurisdiction Dependent on Domicile.................. 333
Same—Wife’s Separate Domicile for Divorce Purposes......... 334
May Plaintiff Rely Upon Defendant’s Domicile, or Non-Domi-
ciled Defendant File Cross bill?.... 0.00.0... 00.0 c cece eee ee 335
What Is Sufficient Residence or Domicile...................0. 336
Same—Motive in Changing Domicile—Evidence.............. 337
‘Jurisdiction with Reference to Extraterritorial Force of Divorce
TI OCHOR os oay acenan Qunbianion krona aw bie Hee ee Ra Eee 338
Same—Ex Parte Decrees............ 00 ccc ce eee cece eens 339
View That Ex Parte Decree Granted Elsewhere Valid as to Status
GE. Both: Parties occas scusscsne vad aa Ri Reser ese ewenesis dens 340
Same—Alimony, Dower and Other Incidents................. 341
Where Ex Parte Decree Invalid as to Defendant............... 342

Same—Doctrine of Matrimonial Domicile.................... 343
Xviii CONTENTS

Srcrion

At Least One Party Must Be Domiciled—Estoppel to Question
Jurisdiction in Collateral Proceedings. ........-...--+++++++> 344
Place of Marriage or Marital Offense Immaterial............-- 345
Restraints on Remarriage................202 eee eee eee eeeee 346
Notice, Process and Appearance................2eeeceeeeeee 347

CHAPTER XXX

CAUSES FOR DIVORCE IN GENERAL—ADULTERY AND CRUELTY

Causes for Divorce—In General ..............-..-002 22 ee eee 348
Constitutionality and Interpretation of Divorce Statutes....... 349
ADULTERY
In: Generales. F240 Saeed Beas Aas ae i aiale add nant 350
Definition—What Constitutes................0 222s 351
Same—lIntercourse Under Void and Voidable Second Marriage.. 352
Consequences of Adultery Independent of Divorce............. 353
Same—Pleading and Evidence...................:eeeeeeeeee 354
CRUELTY
Upon What Theory Divorce for Cruelty Granted.............. 355
What Constitutes Cruelty—In General...................00. 356

Physical Violence—Mental Suffering—Danger to Health or
FROAB OU ooizxc.c cas: o unio: tease ee cubed den des alu ensactersyts oe de Ae Rea etal 357
Same—Denial or Abuse of Marital Rights.................... 358
Single Act—Course of Conduct........................-00085 359
Animus—Intent............. sen Rd big ed ene adhe deals eae 360
Effect of Conduct Complained of........................22, 361
Misconduct of Complainant........................00.0000. 362
Insanity of Defendant............0 0... cece eee eee ee eee 363
Peculiar Statutory Terms... .......... 0.0... cece cece eee ees 364

CHAPTER XXXI

CAUSES FOR DIVORCE CONTINUED—DESERTION, DRUNKENNESS, NEG-
LECT TO PROVIDE, ETC.

DESERTION
Desertion—In General... ... 0.0200 eee 365
Desertion as a Cause for Divorce Defined..................... 366
Elements of Desertion—The Intent to Desert................. 367
CONTENTS xix

SEcTIon
Same—Must Be Substantial Abandonment of Marital Duties... 369
Same—One Party Driven Out................ 02.2 c eee 370

Same—Change of Domicile—Wife Refusing to Follow Husband 371
Same—Time and Continuity of Desertion—How Broken or In-
tefrupted so .ave avs wives si aiare hidsae eee vbewe eeeeEs . 872
HABITUAL DRUNKENNESS
Habitual Drunkenness—What Constitutes................... 373
Same—Coupled with Wasting of Estate...................0-. 374

NEGLECT TO PROVIDE

Tn; General) 12nd vee Sax Beh d Swe Cee ees 375
Time and Extent of Neglect............... cee eee eee 376
Husband Must Be Able. ..........00 00. cc ccc cc eee cece eens 377
Under Peculiar Statutes......0.0..... 0.0. c cece cee eee eee 378
Wife’s Needs and Abilities...........0 00.0. cece cee cence 379

OTHER CAUSES FOR DIVORCE

Antenuptial Unchastity or Pregnancy.................---000: 380
Divorce Obtained in Another State..................2.-0005. 381
Causes Analogous to Desertion—Or Arising Out of Separation... 382
Same—Conviction of Crime—Imprisonment................-. 383
Causes Analogous to Cruelty............0 000. e cece 384
Divorce in Discretion of Court...............2 2220s 385
Insanity as Ground for Divorce...............002 eee cece eee 386

CHAPTER XXXII

DEFENSES PECULIAR TO DIVORCE ACTIONS

In: General «2 ses 250 segs 2e eee dee eae eee Se EP e Ye Rees 387
RECRIMINATION
Recrimination—Definition and Nature...................... 388
The Nature and Time of the Recriminatory Offense—Rule
Where Offense Condoned.............-.00eeeeeeeeeeeeee 389
Same—Cause for Limited Divorce as Recriminatory of Cause for
Dissolution si ss2 4854 see eu bi ie hee cae oe eo eke ees 390
CONDONATION
Definition and Nature............ 00000 e cece eee eee e eee e ees 391
Must Be Voluntary—Cohabitation as Condonation............ 392

Same—Knowledge of Offense and Ability to Make Proof........ 393
XX CONTENTS

Secrion

Condonation of Cruelty. ........0.. 02000. c eee ee eee eters 394
Condonation Conditional—New Offense Revives Old—Nature

of New Omensé:.. ccoscsa nin Site ew eae pe yi ee ninw wate aden ack 395

CONNIVANCE

Definition and Nature................ 0.0 eee eee eee 396

The Consent—Willingness—Negligence..................-006 397

Same—Articles of Separation—Cruelty—Desertion............ 398

Same—Failing to Prevent—Watching and Entrapping......... 399

How Far Connivance at One Offense Bars Another............. 400

COLLUSION

Definition and Nature...............0 02002 e cece eee eee eee 401

Same—Actual or Apparent Misconduct by Agreement......... 402

Offending in Hope of Divorce...............--.. 000s ence eee 403

Facilitating Divorce. ... 2... 0... eee ee ee eee ee 404

DELAY AND INSINCERITY

Delay-—In Generali gsi ige big ae See wage wee eS URES ey 405

Same=—Statutes.. o.... . nukes nes pa sina bene eae Saude suena ecm 406

Insin@erity: 2cjscde see's es ee Pee 4¥ eo Sine Ses e Se eee EEN 407

CHAPTER XXXIilI

ALIMONY AND KINDRED ALLOWANCES PENDING AND AFTER DIVORCE

Alimony in General—Origin, Nature and Kinds............... 408
Authority and Jurisdiction To Grant Alimony Upon Absolute
DivOre@iagisc as cna Hee ane ee dene cede ed Banta 409
Alimony as an Independent Right........................... 410
Alimony in Nullity Suits... 0.0.0... eee ee 411
Alimony to Husband or to Guilty Wife. ...................... 412

TEMPORARY ALIMONY

General ‘Rule .s..00ces Sarg cn Sun. Gootn ayes terewe as awe 413
Temporary Alimony—Principles of Allowance—Wife’s Needs

and Husband’s Abilities....................0..... 0000008, 414
Same—The Amount of Temporary Alimony.................. 415
When Alimony Pendente Lite Commences.................... 416
Temporary Alimony on Appeal..................00.0.00002, 417

Other Allowances Pendente Lite................... 0.000000 418
CONTENTS xxl

PERMANENT ALIMONY UPON LIMITED DIVORCE

Spcrion

Jurisdiction to Grant... 6.0.0... eens 419

CHATACTENISTIGS:: 5 eae kate sid dani 6 Hoe bea aaile tah ooleoeldlas sumeia ed 420

Same—How Far Subject to Change...............0..0 00000 421
The Basis and Amount of Permanent Alimony Upon Limited

DIVORCE esis alse 3268 doahheasa a ae oer gh aR Dla grads etpuml datenaoape 422

PERMANENT ALIMONY UPON ABSOLUTE DIVORCE

Ani Generals 22 5 icant tls 4 awk ieee te Ga Ada Gree AA osteo 423

Duration of Permanent Alimony......................000005 424

Amount of Permanent Alimony Upon Absolute Divorce......... 425

Final Division or Restoration of Property Upon Divorce........ 426

ENFORCEMENT OF DECREES FOR ALIMONY
In General—Ex Parte and Foreign Decrees................... 427
Alimony Under Federal Bankruptcy Law..................--- 428

CHAPTER XXXIV

WHEN DIVORCE DECREE TAKES EFFECT, AND ITS STABILITY, PROCEDURE
AND EVIDENCE IN DIVORCE SUITS

When Divorce Decree Takes Effect.................000000008 429

Same—Decrees Nisi... 0.0.0... c eee ee eee ete ee eens 430

FORCE AND STABILITY OF DIVORCE DECREES

%
Void and Voidable Decrees Distinguished...... re 431
Same—Annulment of Decree for Fraud—Collateral Attack. .... 432
Same—Nature of Fraud............. 000: cece cree cece renee 433
Rights of Third Persons as to Fraudulent Decree.............. 434

THE PLEADINGS AND PROCEDURE IN DIVORCE SUITS

Essential Allegations............ 000020 c cece eee e eee ees 435
The Procedure: cscsccexcsce es w athe ehe aes HE Rem Er ae eK EEE 436
Rights of Particeps Criminis.............. 002 e cece eee ee .. 487
Abatement of Divorce Actions............-..0222ee eee eeeee 438

THE EVIDENCE IN DIVORCE SUITS

Ine Genérall: bound sea ee eee eee a Eee rs 439
The Evidence—Necessity for Proof...............-..20eeeee. 440
The Witnesses: «cin iaeuse na ae dees Beaded Peewee ved tees 441
Xxii CONTENTS

Secrion
Weight and Sufficiency of Evidence.............-.-.0-eeeeeee 442
Same—Specific Issues—Adultery............. 00-0 cee eee eee 443
DSame—Crueltyisg vce. eee tessa d cece nade etiee de ease te 444
Samié—Desertiotie si: tec, Geen send deed Rade es VA See naaen 445

CHAPTER XXXV

CUSTODY AND SUPPORT OF CHILDREN PENDING AND AFTER DIVORCE

‘Custody in General—Jurisdiction................0..000c0e eee 446
Rules as to Custody Pendente Lite...................---000- 447
Custody on and After Divorce..................0200ceeeeeee 448
May Custody Be Given Third Party................000000008 449
Access of Parent—Removal From State.....................- 450
Custody Where Divorce Denied..................0 0002 ceeeee 451
Support of Children After Divorce...................0000-00s 452

CHAPTER XXXVI

PARENT AND CHILD—LEGITIMACY , ILLEGITIMACY AND ADOPTION

Parent and Child Defined................0... 0.2.02. c eee eee 453

LEGITIMATES AND BASTARDS DISTINGUISHED—STATUS OF BASTARDS

Tn General sicaige gcc nk sb wisi dnahletin bd hae os Sane bee 454
What Children Are Legitimaie..................00...000000- 455
Legitimation of Bastards...............-.....0. Bide dbiaa e 456
Conflict of Laws as to Legitimacy........................0.. 457
Evidence and Presumptions as to Legitimacy................. 458
Same—Husband and Wife as Witnesses in Legitimacy Cases.... 459
Status and Rights of Bastard—Inheritance by and from........ 460
Support and Maintenance of Bastards....................... 461
Custody and Control—Domicile and Settlement of Bastards.... 462
Services and Earnings of Bastards—Death by Wrongful Act.... 463

ADOPTION AND STATUS OF CHILDREN BY ADOPTION

Definition and Nature of Adoption.....................02005 464
Statutory Requirements—Jurisdiction and Conflict of Laws... .. 465
Who May Adopt and Be Adopted.................0.....0005. 466
Effect of Adoption—Inheritance by and from Adopted Child.... 467

Rights of Adoptive Parents and Child Under Will.............. 468
CONTENTS XXxili
CHAPTER XXXVII

RIGHTS OF PARENT WITH RESPECT TO LEGITIMATE CHILD-—SERVICES
AND EARNINGS—-EMANCIPATION

Szcrion
Parent Has no Right in Child’s General Property.............. 469
Services and Earnings of Minor Child—In General............. 470
Same—Rights of Parent’s Creditors..............20ceeeeees 471
Same—Payment of Child’s Earnings................--2--000- 472
Right of Others in Loco Parentis............... 00.00 e ce eueee 473
Child of Age—Implied Contract...................00 eee eee 474

EMANCIPATION OF CHILD p

Emancipation Defined and Explained.....................55. 475
Emancipation by Operation of Law..................000000e. 476
Emancipation by Agreement or Contract—Estoppel........... 477
Effect of Emancipation—Creditors of Parent................. 478

CHAPTER XXXVIII

CUSTODY OF LEGITIMATE CHILDREN—-DOMICILE AND SETTLEMENT—
DISCIPLINE AND CONTROL

Custody in General—Rights of Parents Respectively and of

Strangersies ea ccavcde davetecseiae indice res seen Ge enced 409
Same—Modern Chancery Rules.............---.20eeeeeeeee 480
Same—Contracts as to Custody. ............. ee eeee eee eee 481
Custody in Actions for Divorce............. 0.0 c cece ee eee eee 482
Domicile of Legitimate Child. ............... 2. cee eee eee 483

PARENTAL RIGHT OF CONTROL AND DISCIPLINE
In General. ..... Md ancia wei ne ane bw ear eeean ee eee 484
Limits of Right of Discipline. ............ 2.0.0.0 e eee eens 485
Right to Control Education of Child...................0.008. 486

CHAPTER XXXIX

MUTUAL RIGHTS AND DUTIES OF PARENT AND CHILD—PROTECTION,
MAINTENANCE AND EDUCATION OF CHILDREN-—SUPPORT OF PARENT
BY CHILD

Duty of Parent to Protect Child........... 0... c cece eee eees 487

DUTY OF PARENT TO MAINTAIN AND EDUCATE CHILD

Parental Duty of Support—In General..............2-0e eee 488
Through the Action of the State............. 0c cece cree ee tees (489
XXIV CONTENTS

Secrion
Same—Criminal Liability........... 0.000000 cece eee eee eee 490
Same—Liability of Parent on Contract—Agency of Child....... 491
Same—Child Away from Home..................-000 0-200 es 492
Same—Liability on Quasi Contract..................-0000 eee 493
Liability of Mother—Stepfather...................0020 eee 494
Allowing Support out of Child’s Estate...................0005 495
Support of Children After Divorce...........-......-00--000- 496
Duty of Parent to Educate Child.............. 0.20 cess eee eee 497
Duty of Parent to Bury Deceased Child.................+--+- 498
Duty of Child to Support Parent.............. 0... e seer e eee 499
Contracts of Child to Support Parent...............----.6+- 500

CHAPTER XL
CONTRACTS, GIFTS AND CONVEYANCES BETWEEN PARENT AND CHILD—
ADVANCEMENTS
General Rule as to Dealings Between Parent and Child......... 501
Same—Gifts, Loans and Advancements from Parent to Child.... 502
Origin and Nature of Advancements...................20000- 503
Same—Determination of Share of Child Advanced—‘‘Hotchpot””’ 504
What Deemed an Advancement...............2..000000eeeee 505
Advancements in Cases of Testacy...............00.0000e eee 506
CHAPTER XLI
THE RELATION OF PARENT AND CHILD AS AFFECTING LIABILITY
FOR TORTS

Torts Between Parent and Child........................00.. 507
Liability of Parent for Torts of Child....................0.0.. 508
Liability of Third Persons for Injuries to Child—In General... . . 509
Same—Rights of Parent—In General........................ 510
Same—Nature of Injury................0. 00 cee ee cece 511
Nature and Extent of Service.....................0.0.00000. 512
Who: May Sue siic skis area deennein ewe eee Yoese de see cs abaek 513
Same—Damages. ....... 0.0.0.0... cece eee ee Seen tin loca sa 514
Same—Where Child Killed....................00000...0.000. 515
Same—Measure of Damages....................000.0000000 516
Seduction of Female Child.............0.0. 0000. c cc eeeeeees 517
Civil Action by Woman Seduced.....................0.0.00% 518
Same—Exception to Common-law Rule....................... 519
Same—Previous Chastity of Woman....................00.. 520

Same—Former Recovery by Parent......................2.. 521
CONTENTS XXV

Section
Action by Parent. .........0..0.0. cece ccc ccecceeaeeceeeeuees 522
Same—What Constitutes Loss of Service...............0.0005 523
Same—Where Daughter of Age......... ig ehe naam hae fae 524
WhO May Stes vexne cane decon ote wie. sky ve b hee awa nie va eeens 525
The Defenses.......... Asie Wears pies oe tole he eae ace acs 526
Damages—In General. ..... 2.0.0.2... 0000 cece cece eee eeeeas 527
Same—Exemplary Damages. ...........0.00.ccceceeeececees 528
Abducting, Enticing or Harboring Child dha eRe seus eke ehude ate 529
CHAPTER XLII
TEACHER AND PUPIL
In: General ssi: osc oss tied See es Da hoa Deg Rename acon BESS 530
Who May Become Pupils—Right of Admission to Public Schools 531
Vaccination of Pupils............0.0 0.000. c cece eee cece ees 5382
Course of Study—Religious Exercises and Instruction.......... 533
Teacher’s Right of Control and Discipline............. Pega? 534
Suspension and Expulsion...................cc0cceeeeeeeees 535
Grounds of Expulsion or Suspension....................0.205 536
Conduct out of School, or Sanctioned by Parent............... 537
CHAPTER XLIII
INFANCY IN GENERAL—CONTRACTS OF INFANTS
Definitions—Infancy in General....................... Le... 538
Of the Status of Infancy in General..................0....02., 539
Conflict of Laws with Respect to Infants..................... 540
CONTRACTS OF INFANTS

Contracts of Infants—In General....................000000e 541

Contracts Binding upon Infants—Contracts Authorized by Stat-
ute—Quasi Contracts... 0... cee cece nent e eee eens 542
Contracts in Performance of Legal Obligations................ 543
Infant Bound for Antenuptial Debts of Wife.................. 544
Contracts for Necessaries—In General.................00000. 545
What Are Necessaries—Functions of Court and Jury........... 546
Necessaries Concern the Person and Not the Estate............ 547
Edueation................4. pie Tye cee ce era ets aes 548
Same—Rule Where Infant Is Already Supplied................ 549
“Necessaries” a Relative Term.................-2 cece cease 550

Same—Articles of Ornament and Luxury..................... 551
XXvi CONTENTS

Sscrion
Money as a Necessary................ cc cece ee eee cent eeee 552
Necessaries for Family...............-.00 cece cece cece ee eeee 553
Contracts Touching Trade or Business................0000 0 554
Contracts to Render Service.............. 0... cece ee eee eens 555
Same—Infant Member of Family........... tbncd deca and BES 556

CHAPTER XLIV

RATIFICATION AND AVOIDANCE OF INFANT’S CONTRACTS—PARTICULAR
CONTRACTS AND TRANSACTIONS

Ratification and Avoidance—In General. .................---- 557
Time of Ratification and Avoidance..................-2025- 558
Who May Ratify or Avoid............. 0. cece eee ee eee eee 559
Is Knowledge of Legal Rights Essential to Ratification?........ 560
What Constitutes Ratification and Avoidance—In General..... 561
Same—Contracts Wholly Executory..................000eees 562
Contracts Executed by Infant Alone..................000-005 563
Contracts Wholly or Partly Executed in Infant’s Favor or on

Both Bidess, Makedceieitedale ites aleih naan tea bah ane Red Heneed 564
Same—Where Consideration Cannot Be Returned in Specie... .. 565
Same—Holdings That Infants Cannot Rescind Without Account-

ing for Substantial Benefits........... 0.0.0... 0c cece eee eee 566
Consideration for Ratification or New Promise................ - 567
Formal Requisites of Ratification..................000.0. 0 568
What Language or Conduct Constitutes Ratification........... 569
Same—Conditional Undertaking.................. 0000 e ues 570
Same—Retaining or Disposing of Consideration After Full Age.. 571
Other Acts Amounting to Ratification....................... 572
Infant Must Ratify or Avoid in Toto.................0.00000- 573 |
Further as to What Constitutes Rescission.................... 574

PARTICULAR CONTRACTS AND TRANSACTIONS

Intaniteas: Partners... ecg couecswsieteduis seer raw oreaekate 575

Infant Stockholders in Corporations.....................000. 576

Infant’s Submission to Arbitration......................000. 577

Written Securities Executed by Infants...................... 578
CHAPTER XLV

CONVEYANCES OF REAL PROPERTY BY AND TO INFANTS

Whether Conveyance by Infants Voidable or Void............. or
When May Disaffirm.............. ccc ccc cece cece eee eees 580
CONTENTS XXVii

; ; Suction
Avoidance as Against Bona Fide Purchases................. 581
Period Allowed for Avoidance—Who May Avoid.............. 582
Duty of Infant to Restore Consideration on Disaffirmance...... 583
What Constitutes Disaffirmance..................0ceceeeuee 584
How Infant’s Lands Validly Conveyed or Encumbered......... 585
Conveyance to an Infant....... 0.0... ccc cee cee eee eee eee 586
Estoppel of Infants............ 0. c ccc cece eee e cece eeeees 587

CHAPTER XLVI
APPRENTICESHIP OF INFANTS
In, Generals ionias ose seatiameusiee ee ad ewe aet wee Goes 588
How Batered Inte sins cae init oss icine seas Woacis Mee aes een ae 589
Authority and Right of Master.................. cece ee eeee 590
Duties of the Master......... 0... ccc cece cece nen ee eens 591
Assignment of Indentures—Termination of Relation........... 592
CHAPTER XLVII
TORTS BY AND AGAINST INFANTS
Liability for Pure Torts—General Rule.....................- 593
Negligence: of Anfants:. :.cscnceauws see eee seed eee ae ses pawewe 594
Torts in Which Malice Is an Element.....................--- 595
Torts Involved or Connected with Contracts.................. 596
Same—Fraud in Inducing Contract....................2005- 597
Same—Infant’s Frauds in Equity—Estoppel.................. 598
Same—Infant Bailes... os 2 og se hse eckees He Laas ete bs Se REE 599
Is Infant Liable for Torts of His Agents?..................... 600
Exemplary Damages Against Infants..................2....-- 601
TORTS AGAINST INFANTS
Liability of Third Parties to Infant for Torts.................. 602
Same—Negligent Injuries.............. 0.0.0. e cece eee eee 603
Same—Injured Child a Trespasser........... 2.000000 cee eae 604
Contributory Negligence of Child...................0.00000 605
Imputable Negligence... 0.10.00... 0c ccc cece eee eens 606

CHAPTER XLVIII
INFANCY IN RELATION TO AGENCY—WILLS, ETC., INFANTS AS PARTIES
TO ACTIONS

Infants as Principals............. 6c cece eee eee e eee eee 607
Infants as Agents.......... bina Sra Suse ia Steak ec Seay aes 608
XXViil CONTENTS

SECTION
Wills of Infants: 40: wsvs «dca Gere Ged aka ery bes eee Ueeeaiews 609
Capacity of Infant to Hold Office.....................-0-005- 610
Infants as Executors, Administrators or Trustees.............. 611
Infants as. Witnesses iis sis okies awe eee eee ed ade g aden estes 612
Same—Statutory Modification of Rules as to Infant Witnesses.. 613
Weight to Be Accorded Infant’s Testimony................... 614

ACTIONS BY AND AGAINST INFANTS

Tn. Gen eral so scecaly das capac out ations Gale Runs Bee er eemens 615
Infants: as: Plaintifisis.: ws sca: ec saed bath Wace Sale etek aa a mead ave 616
Infant Not Entitled to Specific Performance.................- 617
Infants as Defendants—Process.............--02-000 ee eee eee 618
Protection by Court of Infant Parties....................-2--- 619
Judgments and Decrees Against Infants.................--0-- 620
Limitations of Actions Against Infants.................--+--- 621

CHAPTER XLIX

CRIMES BY AND AGAINST INFANTS—PUNISHMENT OF YOUTHFUL OF-
FENDERS—COMMITMENT TO PENAL AND CHARITABLE INSTITUTIONS

Criminal Capacity—In General—Presumptions............... 622
Same—lInfant under Seven...............-2222 0-20 cee ee eee 623
Same—lInfant from Seven to Fourteen—Rape................. 624
Same—Infant over Fourteen................. cece cece eens 625

Crimes Against Infants—Special Statutes for Their Protection... 626

PUNISHMENT OF INFANTS—COMMITMENT TO PENAL AND CHARITABLE

INSTITUTIONS
Ini General. ccc ect bot a galt ace ne ada Ghee ee OO gaa eyes ee 627
Constitutional Questions Involved—Trial by Jury—Juvenile
COUTTS: ssaie% Seg Std Math a ae ea a dind d dares ee recs ee 628
Same—Rights of Parent and Child—Notice, etc............... 629
Commitment to Private or Sectarian Institutions.............. 630
CHAPTER L

PERSONS NON COMPOTES MENTIS

Insane Persons and Persons Non Compotes Mentis—In General 631

Custody and Control of Insane Persons. .................0.00. 632
Arrest and Detention Pending Adjudication.................. 633
Judicial Determination of Insanity..............00.......005 634
Jurisdiction Over Persons and Estates of Insane............... 635
CONTENTS XX1X

Section
The Inquisition and Finding of Insanity and Its Effect.......... 636
Domicile of Persons Non Compotes Mentis................... 637
Guardianship of Persons Non Compotes Mentis............... 638

CHAPTER LI
CONTRACTS AND CONVEYANCES OF INSANE PERSONS
Contracts—In General. ... 2... ieee eet eeees 639
Moderi Riles 3 asicccoine ic vtareainematns aia ce aaetaan plod wheue poaneea anne 640
Same—Lucid Interval. 2.0.0.0... 0000s ccc eee eee eee ennes 641
Rule Where Insanity Is Unknown to Other Contracting Party... 642
Ratification and Avoidance of Lunatic’s Contracts............. 643
Contracts of Insane Persons under Guardianship....... esate’ 644
Contracts for Necessaries........... 00... c eee e eee ees 645
CONVEYANCES BY INSANE PERSONS
In General—Voidable and Not Void......................05. 646
Same—Conditions of Avoidance............. 0.00 c eee eee ee 647
Disposition of Lunatic’s Lands under Statute................. 648
<
CHAPTER LII
WILLS OF THE INSANE
Tn Generals seee a ty eases a ies Sane Sed ecne bl agaeegSe 649
General Test of Mental Capacity...............02 0000 eee ee 650
Business Capacity—Delusions, etc..............0 00. c eee eee 651
Eccentricity and Delusions Distinguished.................... 652
Same—Undue Influence and Menta! Weakness Combining...... 653
Effect of Guardianship on Testamentary Capacity............. 654
CHAPTER LIITI
TORTS AND CRIMES OF INSANE PERSONS
LIABILITY IN TORT
Insane Are Generally Liable in Tort................0. cece 655
Torts Involving Malice and Intent..................00000 00s 656
Negligence: ..:s.:ccairveiny evce sors bus Segan ee Peete epee ares 657
CRIMINAL RESPONSIBILITY OF THE INSANE

‘Tn Generally iia seria sken wineaea waicey Actas Sones anes danernaNe 658
Same—The English Rule—McNagten’s Case...............-. 659

Conflict of Authority in America—Irresistible Impulse......... 660
XXX CONTENTS

Section
Moral and Emotional Insanity..............20-- 20sec eee 661
Trial and Punishment of the Insane..................02502+0+ 662

CIVIL ACTIONS BY AND AGAINST THE INSANE

In General—May Sue and Be Sued...............0000-0 ee eee 663
Same—Actions for Divorce............ 0.0.0. ccc eee eee eens 664
Service of Process upon Lunatics................0eeeeeeeeeee 665
Effect of Judgments Against Lunatics....................24-- 666

CHAPTER LIV

EVIDENCE OF INSANITY-——-INSANE PERSONS AS WITNESSES

In General—Presumption of Sanity.....................0000. 667
Insanity Once Proved—Presumptions of Continuance.......... 668
Character of Act As Evidence..................0 00 cece eee 669
Rules Peculiar to Criminal Cases..............00 0c gece eens 670
Same—Inquisition and Finding of Tiunsey—Cuardianshin araigeae 671

INSANE PERSONS AS WITNESSES

In General—Witness Insane When Called or Fact Transpired—
Effect of Finding of Lunacy................... cece eeu eee 672

CHAPTER LV

DRUNKARDS, SPENDTHRIFTS AND PERSONS BEREFT OF SPECIAL SENSES

Drunkenness in General—Definitions........................ 673
Same—Habitual Drunkards...................00.000- cece aee 674
Inquisition—Appointment of Guardian or Committee.......... 675
Same—FEffect of Finding and Appointment of Guardian........ 676
Removal of Disability...........0.000 0... c cece eee eee 677
Contracts of Drunkards and Drunken Persons................ 678
Same—Drunkard under Guardianship—Necessaries........... 679
Ratification and Avoidance of Drunkard’s Contracts........... 680
Sdme—Rights of Bona Fide Purchasers................ evianes 681
Wills of Drunken Persons..............00. 0000 eeeceeeeeeee 682
Torts by and Against Drunken Persons...................... 683
Crimes of Drunken Persons............... 0000. ccceececeues 684
Where Specific Intent, Malice or Deliberation an Ingredient of
CTiM6y siete ceca aus ena last cm een ee ees ae seas 685
Homicide under Statutes............0.0000 ccc eee e cece eeuues 686
CONTENTS XXX1

: Srcrion
Insanity Caused by Intoxicants or Drugs..................... 689
Drunkards as Witnesses.........0.00 000s cece eee ceceeeeees 690

SPENDTHRIFTS
In General—Guardianship—Contracts...................00. 691
Spendthrift Trusts... ......00.0. 0.00 c ccc cece eee e ce eaees 692
PERSONS BEREFT OF SPECIAL SENSES
Deaf and Dumb—In General... ............. 0.0 ce ce eeee eae 693
Civil: Capacitys 203.0% axecaeorh oeanade tyne eaveues der eence 694
AS) Witmesse6 x5 ¥ sees cease vais aed adie cade bax nb PGR Sew Soe eae 695
Crimes and Torts of Deaf-Mutes...............0.c.eceeeeeee 696
The: Blinds 6.0.5 cassie ox wae ona seen Ge eae ee wees 697
CHAPTER LVI
CONVICTS

In General—Status at Common Law—Attainder.............. 698
Same—Forfeiture. . 2.0.2.0... 0c ccc cece eee cence eee nee 699
Same—Corruption of Blood................. 0c cece eee e cence 700
Same—Civil Death—Infamy.............0..0000c ee eeee eee 701
Status of Convicts under Modern Law....................0.. 702
Convicts as Witnesses. ..........0.0 0.00 c cece cece ee eee eee 703
Conviction as Affecting Credibility of Wiltiew i ae ned Gt Ly ee aa 704
Conviction of Crime as Affecting Competency as Juror or Office

HO GOP. ks icewe es nd ead dled we es ees one ate Sew 705
Samie==Pard otic cc ce seid fancs- ran oh ec wate rat ewe Se 706
Domicile of Prisoners... ....... 00... cece cece ence een eee 707
Crimes and Torts by and Against Convicts................... 708

CHAPTER LVII
CITIZENS AND ALIENS

Dnt. Getierall ss). os tei 2 ee osc ae Sh es Fe Oh ae we Se Se aa 709
Definitions: 44 4e.0d Sawa eaieive aeiwe te ees ee oer es he eek 710
How Citizenship Is Acquired.............--.. 0. ee eeeeeeee 711
How Citizenship Is Lost..............2.20--eeeeeeeee reese. “12
Power of the Government to Exclude or Deport Aliens—Equal

Protection and Capacity...........0.00 0c ceee cece cece eens 713
Capacity of Aliens to Acquire and Hold Eraperiy Heated Set eens 714
Contracts of Alien Friends................... 2.62 cece eee 715
‘Crimes and Torts by or Against Aliens...............-...0--. 716

Civil Actions by and Against Alien Friends................... 717
XXXil CONTENTS

Secrion

Contracts with Alien Enemies..................002 eee ee eee 718

Suits by and Against Alien Enemies.....................-06- 719
INDIANS AND CHINESE

ANGIANB sic aie fd da a ied es ewes AY J ni he Gola tee pata 720

Status of the Chinese...........0. 000. c cece eee eee eee 721

CHAPTER LVIII

GUARDIAN AND WARD—IN GENERAL—KINDS OF GUARDIANS

APPOINTMENT
Guardianship in General—Definitions...................---- 722
Guardians by Nature and for Nurture................-...0--. 723
Testamentary Guardians—Who May Appoint................ 724
Same—Mode of Appointment................22..20-0000 eee 725
Judicial Guardians—Chancery and Probate Guardians......... 726
Same—Jurisdiction to Appoint............... 0.20 eee eee eee 727
Guardian by Nomination of the Infant........,.............. 728
Who Should Be Appointed Judicially................-....4.. 729
Considerations Governing the Selection...............-..-.--+ 730
Mode of Appointment—Qualification—Bond................. 731

CHAPTER LIX

NATURE AND SCOPE OF GUARDIAN’S OFFICE—FOREIGN AND ANCILLARY
GUARDIANSHIP—GUARDIANS AD LITEM

Nature of Office in General............. 00.00.0000 c cece eae 732
Guardian Entitled to Possession of Ward’s Estate....... Seer 733
Same Person Guardian and Personal Representative........... 734
Joint Guardians—One Guardian for Several Wards............ 735
Quasi Guardians. ...... 2.0.20... eee 736
Foreign and Ancillary Guardianship......................... 737
Guardians Ad Litem.................0...0.. 000. ccc e eee eee 738
CHAPTER LX
RIGHTS AND DUTIES OF GUARDIAN AS TO WARD’S PERSON
Rights of Guardian as to Person of Ward..................... 739
Right of Guardian to Services and Earnings of Ward........... 740
Right to Sue for Injuries to Ward. ....................0..00.. 741

Consent to Marriage, Apprenticeship, Adoption, etc., of Ward... 742
Power of Guardian as to Ward’s Domicile—Right of Foreign
Guardian to Custody of Ward..............0.......0000.. 743
CONTENTS XXXL

Section
Right to Control and Discipline Ward.................0000 005 744.
Guardian’s Duty of Maintenance and Education.............. 745

CHAPTER LXI

RIGHTS, POWERS AND DUTIES OF GUARDIAN AS TO WARD’S ESTATE

In General—Good Faith—Care and Prudence................. 746
Same—Collection and Protection of Ward’s Estate............ 747
Same—Right to Sue... 0.00... 0.0.0 e eee eee es 748
Duty of Guardian to Make Ward’s Estate Productive.......... 749
Duty as to Ward’s Lands—Leases—Rents—Easements........ 750
Encumbrances—Improvements—Changing Character of Prop-

OTLY icv ueae ge ore see GOSR wees Sen weep ee kote eee 751
Duty as to Personal Estate—Investments.................00. 752
Character of Investment.............0 00.0 cece eee eee eee es 753
Employing in Business or Speculation..............2.0-.00005 754
Commingling Trust Funds—Deposits in Bank................ 755

Changing Personal Estate into Realty...................0005 756

CHAPTER LXII

POWER OF GUARDIAN TO CONVEY OR ENCUMBER WARD’S LANDS OR
CHATTELS OR TO BIND HIM BY CONTRACT

Conveyance of Ward’s Real Property by Guardian............. 757
The: Usual Stepsiicsie.s gia asacvs gare ng eae Nd wb Ge Deen ae eins 758
Hearing—Bond of Guardian—Confirmation of Sale............ 759
Power to Sell Personalty........... 0... c cece cece eee e teenies 760
To Compromise, Release or Arbitrate Ward’s Claims........... 761
To Bind Ward by Contract. ...........0. 0.202 762

CHAPTER LXIII

MISCELLANEOUS—DEALINGS BETWEEN GUARDIAN AND WARD—REME-
DIES, ACCOUNTS—GUARDIAN’S BONDS AND LIABILITY OF SURETIES
THEREON

Contracts, Gifts and Conveyances Between Guardian and Ward 763

REMEDIES BETWEEN GUARDIAN AND WARD
TaiGeneraly s5.2.e0o Gee sits cia nied SOS Bed Ree Ree eses Bees 764

DUTY OF GUARDIAN TO ACCOUNT

In Generale o..cc0.s5-e05 sence teed eis ae 2 wR Se eee 765
Principles of Accounting. ........... 0.00 c cece e cece eee es 766
XXXIV CONTENTS

Secrion
Conclusiveness of the Accounts..............00see creer eee 767
Accounting to Ward out of Court........... 0.00. c ee eee eee 768
Guardian’s Bonds—Necessity for..............2 cece eee eee 769
Form and Requisites of the Bond................. 0c seer rece 770
Same—Irregularity in Bond or in Appointment..............-. 771
What Covered by Bond............00c0 ccc ceee seen eer ee ence 772
Additional and Substituted Bonds.................-.000e ee 773
Same—One Guardian for Several Wards or Several Guardians
for Same: Ward ssc sac widen ae ca adele a hence he eee 774
Adjudication Against Guardian Conclusive Against Sureties. .... 775
Liability of Guardian on Contracts Made by Ward............. 776
CHAPTER LXIV
TERMINATION OF GUARDIANSHIP
In: General, goes che seg Sine ea see ues Meee sae eae Teee ema ees 777
Desthoceccse See ae aas eldeads bad LAU Ewe ele ew ale ates 778
Ward’s Arrival at Full Age or Age of Choice................... 779
Marriage of Guardian or Ward. ............. 2.0 cece eee eee eee 780
Resignation of Guardian. .............. 0. cece cere eee ee eee 781,
Removal of Guardian............ 0.000000 cece cece eee e eens 782.
Cause for Removal.............. 00 ccc cece cece ee eee e ee eees 783
Same—Unfitness—Removal from Jurisdiction................ 784
Same—Misconduct in Office............. 0.00: cece ee ee eee eee 785
Effect of Termination of Guardianship...............-....00. 786

Reimbursement and Compensation of Guardian,.............. 787
TABLE OF CASES CITED

[References are to sections]

AsO: Ae Se eon cma eas Sines 48
Aaron v. Mendel... ......... 768
Abbey v. Deyo.........-.--- 289
Abbott v. Abbott.......... 131, 292
Abbott v. Sanders..........- 500
Abbott v. Winchester........ 185
Abeel v. Clark.........5.... 582

Abington v. North Bridgewater 348

Abney v. De Loach.......... 464
Abrahams v. Kidney...... 525, 527
Achilles v. Achilles........ 270, 276
Acker v. Acker... ......----- 373
Ackerman, Matter of........ 494
Ackley v. Westervelt. ........ 244
Adam ». Gilbert. ........---- 263
Adams v. Adams........- 432, 449
Adams’s Appeal..........-. 728
Adams »v. Beall. .........- 566, 575
Adams ». Beverly. ... - ogee 10
Adams v. Buford.........--- 249
Adams »v. Fitzpatrick....... 1
Adams v. Gleaves.......---- 734
Adams v. Knowlton........-. 268
Adams v. Mackey.........-- 225
Adams »v. Miller........--.-- 591

Adams v. Palmer...........- 34

Adams v. Storey......-.---- 214
Adams v. Teague.........--- 249
Addington v. Wilson.......-.. 652

Adger v. Ackerman........ 89, 107
Adune »v. Spencer.......- © dake
Etna Life Ins. Co. v. Sellers... 640
Agar-Ellis, Inre...... 480, 481, 486

Ago v. Canner.......------+- 238
Ahern v. Easterly.......----- 121
Ah Peen, Ex parte........--- 628
Abrenfeld v. Ahrenfeld....... 448
Alabama, etc., R. Co.v. Beards- :
leYevgee were teed wees. 109

Albee v. Albee.........-.-55- 367
Alberts v. Alberts....... 23, 28, 30
Albion Bank v. Burns.......- 251
Albright v. Albright.......... 282
Aldrich v. Bennett........ 476, 529
Alexander v. Alexander

236, 237, 239
Alexander, In re.........--++ 203
Alexander’s Estate.......... 768
Alexandre v. Alexandre....... 393
Alkire v. Alkire..........---. 370

Allaire v. St. Luke’s Hospital.. 453
Allard v. Smith...........4-- 24

Almy v. Wilcox............-- 148
Alt v. Banholzer...........-4 263 .
Alvey v. Reed.........--+-++ 547
Allen v. Allen...........--55 427

Allen v. Atlanta St. Ry. Co.... 510

Allen », Baker...........-655 15
Allen v. Berryhill......... 640, 643
Allen v. Griffin............-. 667
Allen v. Hanks........... 236, 241
Allen v. Hooper...... 178, 175, 283
Allen v. Maclellan......... 67, 432
Allen v. McCullough......... 180
Allen v. Perry. ..........0055 289
Allen v. Thomason........... 483
Alley ». Wynn........... 120, 122
Alling v. Chatfield.........-. 216
Allies v. Lyon... ........--0-- 177
Allis v. Billings........... 640, 646
Allis’s Est., In re..........-- 753
Allison v. Taylor............- 666
Ambrose, Ex parte.........-- 423
Ambrose v. Kerrison........- 129
American Freehold, ete., Co. v.
Dykes......... een Aes 571, 582
American Mortgage Co. u ~
Wright.............65 560, 569°
XXXVI

TABLE OF CASES CITED

[References are to sections]

American Savings & Loan Assn.
v. Burkhardt.............. 263

American Seaman’s Friend Soc.
v. Hopper..............-. 652

American Trust Co. v. Boone
536, 640, 644
Ames ». Foster.............. 244
Amey v. Cockey.............- 543
Amick v. O’Hara............ 655

Amy v. Smith. ......... eee 710
Anderson v. Anderson. .74, 637, 638

Anderson v. Cosman......... 262
Anderson v. Gregg. .......... 312
Anderson v. Kirby.......... 20, 29

Anderson v. Medburg..... 241, 300
Anderson v. Smith. .. .180, 263, 544
Anderson v. Soward..........
Anderson v. State............ 485

Anderson v. Story........... 737
Anderson v. Thompson....... 745
Anderson v. Walter... ....... 697
Anderson v. Watts........... 117

Andover v. Merrimack County 171
Andrews v. Andrews. .336, 338, 344

Andrews v. Jones............ 172
Andrews, Matter of.......... 726
Andrus v. Blazzard.......... 762
Angel v. Felton.............. 180
Angel v. McLellan........... 493
Angelo v. People............. 624
Ankeney v. Hannon....... 226, 248

Anonymous... .42, 47, 45, 51,
369, 393, 538

Anthony v. Anthony......... 362
Anthony v. Norton....... 522, 527
Anthony v. Phillips....... 120, 123
Anustasakas v. International
Contract Co... ........... 717
Applegate v. Ruble.......... 524
Arbuckle v. Reaume......... 715

Argo v. Coffin. .............. 667
Armitage v. Snowden......... 756
Armitage v. Widoe........... 607
Armstrong v. Armstrong. . .167, 391

Armstrong v. Best........... 301
Armstrong v. Hodges......... 107
Armstrong v. State........... 668
Armstrong v. Stone.......... 479

Armstrong v. Walkup........ 772
Armytage v. Armytage....... 334
Arnold v. Norton............ 510
Arnold v. Ruggles............ 169
Arnold v. State.............. 108
Arnold ». Willis............. 236

Arrington v. Arrington. . .167,
170, 347, 428

Arrington v. Yarborough..... 171
Arrowsmith v. Gleason....... 759.
Artman v. Furguson......... 316
Ash », Ash...........000005 302
Ashby v. White.............. 149
Ashcraft v. De Armond....... 647
Ashfield v. Ashfield.......... 572

Ashley v. State............. 89, 92

Ashlock v. Vivell............ 597
Ashworth v. Outran.......... 316
Askew v. Dupree........ 87, 92, 96
Askey v. Williams........ 541, 547
Aspinwall v. Aspinwall....... 320
Aston v. Aston.............. 228

Atchison, ete., R. Co. v. Dickey 140
Atherton v. Atherton. .338, 340, 343
Athol Machine Co. ». Fuller... 248

Atkins ». Farr............... 17
Atkins v. Merrill............. 207
Atkins v. Withers............ 6
Atkinson v. Medford......... 42
Attrill ». Huntington......... 717
Atwater v. McIntosh......... 7
Atwood ». Holcomb....... 477, 478
Aultman ». Obermeyer....... 283
Austin v. Davis.............. 182
Avakian v. Avakian......... 73,77
Avery v. Avery....... 361, 363, 446
Avery v. Everett..... 296, 383,

698, 700, 701, 702, 703
Aveson v. Lord Kimard....... 162
Aycock ». Hampton.......... 462
Ayer v. Ayer. ............... 141
Ayers v. Burns.............. 578
Aymar v. Roff.............0. 39
Baacke v. Baacke............ 304
Babb »v. Elliott.............. 172

Babb »v. Perley....... 174, 175, 293
Bach v. Parmely............. 160
TABLE OF CASES CITED

XXXVI

[References are to sections}

Back v. Andrews..........-- 177
Bacon v. Bacon........-. 426, 632
Badenhoof v. Johnson. ....... 731
Badgeley v. Becker.........-. 524
Badger v. Badger............ 106
Badger v. Phinney.........-. 597
Bahin v. Hughes............. 132
Bailey v. Bailey.......... 357, 361
Bailey v. Barnberger......... 566
Bailey, Ex parte...........--. 479

Bailey v. Fiske.............- 58
Bailey v. King...............
Bailey v. Steve.............-
Bailey v. Wright.............- 227

Bainbridge v. Pickering. ...... 549
Baird v. Boehner............ 520
Baird v. Steadman........... 776

Baker v. Atchison, etc., R. Co. 217
Baker v. Baker. . .70, 266, 342,

377, 476, 664
Baker v. Barney.........-.-- 122
Baker v. Bolton............. 153
Baker’s Exrs. v. Kilgore. ..... 236
Baker ». Fournoy............ 199
Baker v. Hall.............-. 171
Baker, Inre............--.- 675

Baker v. Kennett... .541, 560, 586
Baker v. Lovett. .541, 577, 602, 761
Baker v. Nall...........---- 227

Baldock v. Johnson.......... 501
Baldwin v. Carter...........- 170
Baldwin v. Spriggs..........- 302
Baldy v. Stratton. .......... 28, 29
Ball v. Bruce............: 523, 741
Ball v. First Nat. Bank....... 504
Ball v. Pacquin........... 247, 248
Ballard v. Russell............ 139
Ballinger v. Connable........ 506
Balnyre v. Haley............ 510
Balthaser’s Appeal.......... 746
Banbury Peerage Case....... 458
Bancroft v. Bancroft......... 464
Bank v. Benbow..........-.- 252
Bank v. Guenthee........... 289
Banker v. Banker.........-- 43
Banks v. Conant......... 469, 476
Banks v. Goodfellow...... 650, 651
Banks v. Sherrod............ 609

Barber v. Barber... .. 117, 327, 427
Barber v. Slade.............. 171
Barclay ». Waring........... 271
Barger v. Caldwell........... 591
Barker v. Barker..... 398, 405, 487

Barker v. Hubbard........ .. 547
Barker v. State. ............. 662
Barker v. Valentine.......... 107
Barlow Bros. Co. v. Parsons... 316
Barnes v. Allen..........--5- 148

Barnes v. Barnes..... 357, 361, 401
Barnes v. Shreveport City R.

Ry COi.cssiivicovene sted sae de 604
Barnes v. Toye.........-- 549, 551
Barnett v. Barnett..........- 693
Barnett v. Bull. ...........-. 759
Barnett v. Kimmell.......... 82
Bamey v. Leeds...........-- 256
Barney v. Saunders.........- 752
Barnhizel v. Farrell.......... 467
Barnsdall v. Barnsdall........ 444
Barnum v. Barnum....... 107, 457
Barnum v. Le Master..... 185, 282
Barrell ». Benjamin........... 717
Barrett v. Buxton..........-. 678
Barrett v. Failing... .. 201, 338, 347
Barron v. Barron... ......... 231
Bartee v. Hopkins........... 781
Bartholomew v. Fennimore... 566
Bartholomew v. People....... 688
Bartlett ». Cowles..........- 779
Bartlett ». Emery..........- 578
Bartlett, Ex parte... .......- 744
Bartlett v. Tinsley..........- 198
Bartley v. Richtmeyer........ 525
Barton v. Barton......... 238, 239
Bascomb ». Bascomb......... 48
Bassett v. Bassett... .182, 185, 423
Bassett ». Shepardson........ 315
Bassett v. U.S....... 0. eee 159
Bast v. Bast..........-00005 389
Batchelder v. Sargent.......- 247
Bates v. Cilley...........065 311
Bates v. Shrader............- 175
Battey v. Battey...........- 414
Baucht ». Graves-May Co.... 564
Baudette v. Gagne........... 524

Baum v. Baum. ...........-- 320
XXXVili

TABLE OF CASES CITED

[References are to sections]

Baum ». Birchall............ 301
Baum v. Mullen. ............ 135
Baxter v. Bush........... 572, 593
Baxter v. Earl of Portsmouth

645, 679
Bazely v. Forder............ 493

Beach ». Beach. . 139, 320, 336,
337, 344, 357

Bealv: Beals. «cic cs cy eae ces 250
Beal v. Harmon.......... 757, 758
Beal v. Warren. ............. 290
Beale v. Knowles............ 175
Beall v. Beall............... 360
Beals v. See.......... 642, 655, 657
Beam v. Bridgers............ 171
Beamish v. Beamish.......... 84
Bean v. Morgan.............- 184
Beard v. Dean............... 728

Beard v. Webb.............. 229

Beardsley v. Hotchkiss....... 495
Beason v. State............. 612
Beaufort v. Collier........... 222
Beavan v. Went............. 714
Beaver v. Bare... ........... 478
Beavers v. Smith............ 712
Beaverson’s Estate.......... 90
Bechtel v. Bechtel........... 336
Beck v. Beck.............-.- 702
Beck v. State..............-- 684
Becker v. Mason......... 519, 593
Becknell, Ex parte........... 628
Beckman v. Stanley.......... 184
Beckwith v. Butler........... 504
Bedan v. Turney............ 145
Beeby v. Beeby.-........ 388, 392
‘Beecher v. Crouse............ 748
Beeler v. Young.......... 546, 551
Beezley v. Phillips........... 757
Beisel, Matter of............ 736
‘Belknap Savings Bank v. Rob-

INSOD. rae a sis dees games 717
Belknap v. Whitmire......... 499
Belser v. Tussumbia Banking

Cob diigo se haus 84 ORs 216
Bell v. Bell.......... 230, 232, 338
Bell v. Chapman............. 719
‘Bell v. Eaton. ............4.. 14
‘Bell v. Jasper............... 773

Bell v. Kennedy............. 3,4
Bell v. Nealy...........-.-- _. 213
Bell ». Packard........... 301,540
Bell v. Rudolph............. 773
Bell v. Suddeth.............. 737
Bell v. Walker..............- 591
Bellamy, Inre............. . 173
Bellamy v. Thornton...... 745, 787
Bellefontaine, ete., R. Co. v.
Snyder. ............ eae 604
Beller v. Beller... ..........- 367
Benedict v. Montgomery..... 222

Benge v. Hyatt’s Admrs...... 461
Benjamin v. Benjamin........ 311
Benkert v. Benkert. . .366, 372, 445
Bennett v. Beam... .10, 19, 28, 527
Bennett v. Bennett. ..117, 144, 169

Bennett v. Byrn............. 729
Bennett v. Davis........... . 222
Bennett v..Harms........ 203, 212
Bennett v. Smith......... 148, 150
Benson v. Remington........ 470
Benson v. Zimmers..........- 248
Bent v. Manning............ 546
Bentley v. Greer........ 0... . 582
Bentley v. Griffin..........,. 229
Bentley v. Terry............. 481
Benton v. Benton........... AT
Berdolt v. Berdolt............ 357
Bergen v. Udall...... 0.0... 501
Bergh v. Warner. 120, 121, 123, 124
Berkley v. Cannon............ 680
Berkeley Peerage Case........ 458
Berland v. Welch............ 279
Berley v. Rampachen........ 253
Berolles v. Ramsey........... 551
Berredge v. Banks........... 244
Berrera v. Alpuente.......... 540
Berry v. Bakeman.......... 22, 23
Berry v. Da Costa.......... 27, 29
Berry v. Johnson. ........... 728

Berry v. Safe Deposit, etc., Co. 651
Berthalf v. O’Reilly.......... 152
Berthelmy v. Johnson... .. 330, 349
Bertles v. Nunan..... 177, 178, 237 ©
Bertschey v. Bank.......... . 210
Besant v. Wood.......... 321, 407
Besch v. Besch..............
TABLE OF CASES CITED

[References are to sections]

Bescher v. State... ........... 774
Besondy, In re....... 494, 495, 736
Bestor v. Hickey............. 560
Bethell, In re............45. 80
Betser v. Betser............ *, 144
Bever v. Spangler............ 668
Beverley’s Case.......... 639, 663
Beverlin v. Beverlin.......... 87
Beyer v. Beyer.............. 359
Bibb v. State.............006 157
Bickerstaff v. Marlin......... 779
Bicknell v. Bicknell.......... 552

Bidwood v. Way...........-- 171
Bigaouette v. Paulet. .145, 146, 150

Bigelow v. Bigelow........... 349
Bigelow v. Kinney........... 569
Billings v. Baker...........-. 237
Billings v. Billings........... 442
Binford v. Johnston....... 6038, 605
Bingham »v. Fairweather...... 642

Binney v. Globe Nat. Bank.... 243
Binns v. Dazey...........---
Birch v. Linton. ............-
Birdsall v. Dunn...........-- 161

Birdsong v. Birdsong......... 678
Birkbeck v. Eckroyd......... 240
Birmingham Waterworks Co.

v. Hurne 168, 301
Birt v. Barlow...........664- 108

Birthwhistle v. Vardill..... 455, 457

Bishop v. Bishop........---- 117
Bishop v. Redmond.......... 519
Bishop v. Shepherd.......... 472
Bissell v. Bissell............. 505
Bissell v. Davidson........... 532

Bitner v. Bitner...........-- 650

Bixlu v. Kresge...........++- 572
Blachley v. Laba..........-- 493
Blackburn v. Crawfords...... 104
Blackburne v. Greaves....... 293
Blackburne v. Thompson..... 718
Blackhawk Co. v. Scott....... 255

Blackington v. Blackington... 111
Blades v. Free.........2.----
Blaechinsta v. Howard Mission

128, 140, 240
Blagge v. Ilsley...........--- 23
Blair v. Howell...........---

XXXIX
Blakeley’s Will, Inre......... 631
Blanchard »v. Ilsley........... 741
Blandford v, Blandford....... 391
Blaney v. Blaney............ 373
Blank v. Nohl.............4. 401
Blasini v. Blasini............ 99
Blauttacher v. Saal........... 11
Bleck v. Bleck. ..........-065 400
Blissett’s Case...........665 479
Blodgett v. Brinsmaid........ 54
Blood v. Harrington.......... 616
Blossom v. Barrett......... 60, 328
Blough v. Parry..........--- 650
Blowers v. Sturtevant........ 122
Blue v. Beach..............- 532
Bluff City Co. v. Bloom....... 264
Blythe v. Ayres.......... 456, 483
Blythe ». Hinckley........... 714.

Board of Directors v. Tinnon.. 532
Board of Education v. Minor.. 533
Board of Education v. Purse... 537

Boardman v. Ward.......... 740
Boardman v. Woodman...... 651
Boddie v. Bush.............. 646
Bodine v. Killen............. 312
Boggess v. Richards.......... 289
Bohannon »v. Travis.......... 284
Boisseau v. Boisseau...... 751, 756
Boland »v. Stanley............ 148
Bolling v. Turner...........- 638
Bollinger v. Gallagher........ 244
Bolton, Matter of........... 751
Bolton v. Prentice........... 123
Bond v. Godsey...........-+ 207
Bond v. Lockwood........ 745, 754
Bond »v. Sullivan............. 252
Bonds v. State............4- 662
Bongard v. Cove............. 239
Bonham v. Badgley.......... 206
Bonner v.. Peterson........... 217
Boody v. McKinney...... 565, 571
Booker v. Kirkpatrick........ 718
Bookster’s Succession... ..... 784

Bool v. Mix.............. 558, 580

Boone v. Purnell............. 106
Boone v. Tyrrell............. 759
Boot, IW re viesicascaceavavas 446

Boozer v. Addison... .170, 171, 293
xl TABLE OF CASES CITED

[References are to sections]

Boring v. Ott................ 433
Borland v. Boston........... 3,4
Borland v. Marsnall.......... 198

Boruff v. Stipp........... 747, 748

Borum »v. Bell............... 645
Bosque v. United States...... 711
Bosvil v. Brander............ 231

Boswell v. State...... 659, 661, 670
Bottomly v. Spencer......... 215
Bottoms v. Seaboard, etc., R.

Ri. Cons caccacaaasices te 605, 606

Botts v. Gooch.............. 167
Bouchell v. Clary............ 548
Bouck v. Enos............... 312
Bowe, State ex rel. v. Board... 531
Bower v. Hafley............. 467
Bowers v. Bowers........... 56, 94
Bowers v. Hutchinson........ 320
Bowles v. Bingham.......... 459
Bowles v. Winchester......... 505
Bowman v. Bowman......... 413
Bowman v. Worthington...... 410
Boxall v. Boxall........ ahha 233
Boyce v. Boyce.............. 117
Boyd v. Banta.............. 625
Boyd v. Boyd............ 505, 652
Boyd v. Byrd................ 523
Boyd v. De La Montagniec..... 285
Boyd v. Eby.............0.. 668
Boyd v. Nebraska........... 711
Boyd v. State........ 485, 534, 703
Boyd v. Thayer............. 710
Boyden v. Boyden........... 571

Boyer v. Berryman.......643, 647

Boyle v. Brandon............ 527
Boynton v. Dyer............ 752
Boynton v. Kellogg.......... 22
Bozeman v. Browning..... 559, 582
Brackney v. Fogle........... 651
Bradford v. Greenway........ 225
Bradish v. Gibbs............. 306
Bradley v. Amidon........... 748
Bradley v. Bradley......... 31, 372
Bradley v. Keen............. 492
Bradley v. Pratt.......... 553, 578
Bradley v. Walker........... 249
Bradshaw v. Beard........... 129
Bradshaw v. Jones........ 522, 527

Bradshaw v. Mut. L. Ins. Co.. 242
Bradstreet v. Supervisors, et¢.. 714
Bradwell v. Illinois........... 2

Bramberry’s Estate.......... 178
Bramwell v. Bramwell........ 393
Branch v. Mitchell........... 619
Brandon »v. Nesbit........... 718

Brandt v. Brandt............ 75

Brashears v. W. U. Tel. Co.... 612
Brashfield v. Brashfield....... 220
Brayshaw v. Eaton.......... 549
Breadalbane’s Case....... 106, 107
Breckinridge v. Breckinridge. . 506
Breed v. Judd............ 550, 566
Breed v. Pratt............-.. 654

Breeding v. Davis... .174, 195, 200

Breese, Matter of............ 634
Breesee v. Stanley........... 569
Breinig v. Meitzler........ 122, 124
Brenger v. Brenger........ 412, 426
Breon v. Henkle.......... 519, 521
Brewer v. Brown............ 207
Brick v. Gannar............. 16°
Brickner v. Kopmeier........ 140
Bridge v. Eggleston.......... 270
Bridges v. Bidwell........... 543
Briggs v. Briggs............. 361
Briggs v. Evans.......... 523, 524
Briggs v. The Lightships...... 717
Briggs v. Morgan.......... 48, 407
Briggs v. U.S...........000. 718

Brigham v. Fayerweather . .646, 647

Brigham »v. Miller............ 330
Brigham v. Wheeler....... 724, 725
Brinkley ». Brinkley......... 413
Bristow v. Eastman....... 542, 597
Brittain v. Canady........... 519
Brittain v. Crowther......... 240
Broadus v. Rosson........... 734
Broadway Bank v. Adams.... 692
Brock v. Brock.............. 162
Brock v. Rogers............. 748
Brock v. State............ 454, 456
Brockett v. Richardson. ...... 763
Bronknight v. Epting....... *. 236
Brook v. Brook............. 54, 97
Brook v. Turner............. 305
TABLE OF CASES CITED xli

[References are to sections]

Brooke v. Gailey ............ 560
Brooks v. Logan.......... 481, 732
Brooks v. Tobin............. 772
Brower v. Fischer............ 493
Brown v. Bokee............. 171
Brown v. Brightman...... 452, 493
Brown v. Brown. . .51, 347, 393, 693
Brown v. Casbier............ 240
Brown v. Chancellor......... 315
Brown v. Clark........... 195, 305
Brown v. Cousens............ 297
Brown v. Delano............ 718
Brown v. Eggleston....... 762, 776
Brown ». Fifield............. 249
Brown v. Guyondotte........ 708
Brown v. Howe.............. 657
Brown v. Jones............-. 315

Brown v. Kemper... .132, 134,

294, 298
Brown v. Kerns............. 218
Brown v. Lindsey...........- 175
Brown v. Miles.............. 646
Brown v. Mitchell........... 650
Brown v. Munger............ 617
Brown v. Odill.......... 11, 20, 27
Brown v. Pechman........... 249
Brown v. Ramsey... .274, 476, 524
Brown v. Ward.............- 667
Brown v. Westbrook......... 46
Brown v. Wheelock.......... 538
Brown v. Wright............ 753
Brown v. Yasan............. 556
Browning v. Reane........... 46
Brown’s Appeal... .......... 745
Brown’s Est., In re.......... 304
Bruce v. Bruce.............. 131
Bruce v. Burke.............. 60
Bruer v. Bruer.............. 500
Brummet v. Weaver......... 241
Brush’s Will... ............- 652
Bryan v. Bacheller........... 213
‘Bryan v. Spurill.......... 171, 172
Bryant v. Jackson........... 656
Bryant v. Richardson........ 551
Bryce v. Wynn.............- 728
Bryson v. Bryson............ 330
Buchanan v. Deshon......... 278
Buchanan v. Duncan......... 198

Buchanan v. Griggs.......... 584
Buchanan v. Hibbard....... . 578
Buchanan v. Hubbard........ 581
Buchanan v. Lee............. 236
Buck v. Buck............... 237
Buckingham v. Buckingham.. 410
Buckingham v. Carter........ 171
Buckler, Matter of........... 729
Buckles v. Ellers............. 519
Buckley v. Buckley. . .341, 343, 411
Buckley v. Collier............ 128
Buerfening v. Buerfening..... 389
Buffington v. Buffington...... 273
Buford v. Speed.......... 311, 719
Building Assn. v. Scanlan..... 282
Bullard v. Briggs............ 203
Bullock v. Bullock........... 427
Bullock v. Dodds............ 699
Bunnell v. Greathead......... 146
Bunting v. Jones............. 208
Bunton v. Brown............ 575
Burch v. Breckenridge........ 225
Burden v. Skinner........... 590
Burdens v. Amperse.......... 283
‘Burge v. Burge.............. 450
Burghart v. Hall............. 549
Burha v. Richardson......... 495
Burk v. Burk................ 372
Burke v. Barrow............. 204
Burke v. Broadway.......... 509
Burke v. Cole............... 240
Burke v. Hill................ 298
Burke v. Savage............. 161
Burke v. Shaver............. 20
Burks v. Shain............. 19, 29
Burlage v. Burlage........... 326
Burley v. Russell............ 597
Burnard v. Haggis........... 599
Burnell ». Carr.............. 133
Burnet’ v. Burnet............ 737
Burnett v. Hawpes, Exr....... 224
Burnett v. Kinaston.......... 171

Burnett v. Mobile Branch Bank 505
Burnett v. Simpkins..... 14, 28, 29
Burney v. Savannah Grocery

Burney v. Torrey............ 650
Burnham v. Burnham..... 678, 679
xlii

TABLE OF CASES CITED

[References are to sections]

Burnham v. Cornwell....... 17, 18
Burnham »v. Kidwell...... 642, 644
Burnham »v. Seaverns......... 600
Burns v. Kirkpatrick......... 131

Burpee, State ex rel. ». Burton 536

Burr v. Burr............-.-+ 425
Burr v. Swan............. 237, 247
Burr v. Wilson........... 476, 779
Burson’s Appeal............. 236
Burtis v. Burtis....... 47, 332, 334
Burtis v. Thompson.......... 20
Burton v. Anderson.......... 734
Burton v. State...........6.. 625
Burton v. Tunnell........... 734
Bury ». Phillpot............. 458
Bush v. Breinig........... 678, 679
Bush v, Linthicum........ 575, 615
Butler v. Breck.............. 180
Butler v. Butler.......... 357, 414
Butler v. Hischelman......... 22
Butler v. Elyton Land Co..... 460
Butler v. Gastrill............ 54
Butler v. Price.............. 313
Butler v. Thornburg.......... 208
Butterfield v. Ashley....... .. 529
Button v. McCauley........ 23, 28
Bybee v. Thorp.............. 745
Byrd v. State.............0. 163
Byrne v. N. Y. C. & H. R. R.

CO gs ivsiserg an tus evel nets heat chen: 605
Byrom v.Gunn.............. 729
Cade v. Davis............... 301
Cadematore v. Granger....... 224
Caffey v. Kelley............. 167
Cahagan v. People........... 110

Cairns v. Cairns...... 396, 399, 414

Calame v. Calame........... 426
Caldwell v. Bower........... 203
‘Caldwell v. Drake........... 180
Caldwell v. Walters.......... 298

Caldwell ». Wilson........... 298

Caldwell’s Succession........ 467
Calef v. Calef............... 336
Calhoun v. Calhoun.......... 740
Calkins ». Fry..............8 681
Call v. Call..............08. 425

Calloway v. Bryan........... 100
Calloway v. Wetherspoon... .. 678
Calvin’s Case... ............ 714
Camille, In re............... 720
Camp v. Camp.............. 359
Camp »v. Pittman............ 724
Campana »v. Scalderhead...... 533
Campbell v. Breckenridge... .. 681
Campbell v. Campbell. . . .106,

358, 425, 470
Campbell v. Kuhn........... 643
Campbell v. Stakes.......... 599

Campbell’s Admr. v. Gulatt... 93

Campbell’s Appeal.......... 714
Canal Bank »v. Partee. ...182,
246, 298
Canby v. Porter............. 175
Cannady v. Lynch........... 690
Cannel v. Buckle............ 185
Cannon »v. Alsbury......... 39, 559
Cannon ». Beatty............ 249
Cannon ». Windsor....... 702, 708
Cannon’s Estate............ 483
Canonar v. Cooper........... 470
Cantine ». Phillips........ 474, 553
Cantrell ». Cecil............. 645
Capel v. Powell........... 133, 134
Caplinger v. Sullivan......... 171
Carder v. Culbertson...... 757, 759
Carey v. Berkshire R. R. Co. .. 138
Carey v. Hulett............. 89
Carey v. Mackey............. 320
Carino v. Insular Gvt. of the
Philippines. .............. 711
Carleton v. Haywood......... 133
Carlisle v. United States... ... 716
Carman v. Newell........... 54
Carmichael v. State......... 84, 93
Carnahan v. W. U. Tel. Co.... 717
Carney v. Barrett............ 491

Carney v. Gleissner.......... 131
Carpenter v. Calvert.........
Carpenter v. Carpenter. . .227,

357, 361, 564, 583
Carpenter v. Corn........... 115
Carpenter v. Mitchell........ 244
Carpenter v. Rodgers. .... 678, 680
Carr v. Askew.............., 786
TABLE OF CASES

CITED xlili

[References are to sections]

Carr v. Carr... oo. e eee 448
Carr v. Givens. ............. 198
Carrier v. Sears............. 643
Carris v. Carris............ 70, 352
Carroll v. Blencowe.......... 184
Carroll’s Estate............. 467
Carsey v. Reticker........... 240
Carson v. Carson..... ....849, 441
Carson v. Murray...........- 320
Carter v. Beckwith........... 642
Carter v. Cantrell............ 297
Carter v. Eveleigh........... 224
Carter v. Montgomery........ 58
Carter v. Tice............ 768, 775
Carter v. Towne.......... 508, 603
Carter v. Williams........... 199
Cartright v. Board........... 531
Cartright v. Cartright........ 321
Cartright »,. McGown. . .60, 90,

92, 107
Caruthers v.. Caruthers....... 215
Cary v. Dixon............... 298
Case v. Smith..............- 6
Casey v. Smith.............. 606
Cash v. Lust........25....5- 650
Casley v. Mitchell........... 104
Cassady v. Magher.......... 683
Cassin v. Delaney............ 133
Cast v. .Cast.........5.60058 332
Castner v. Walrod........... 297
‘Castor v. Davis.............. 45
Caswell v. Caswell........... 383
Caswell v. Hill.............. 289
Cates v. McKenney......... 18, 29

Cathcart v. Robinson..... 287, 290

Catherwood v. Caslon........ 108
Catlin ». Martin............. 122
Catlin v. Haddox............ 569
Catron v. Lafayette Co. ...... 748

Catts v. Phalen.............. 597

Caujolle v. Ferris............ 107
Cauley v. Pittsburg, etc., Ry.

COb iseces cain vias ba eRe 607
Cazier v. Hinchey............ 218
Ceccato v. Deutschman....... 125
Central Land Co. v. Laidley... 249
Chace, Ex parte............. 691

Chace, In re.............0.. 99

Chaffee v. Brown............ 225
Chafin Will Case......... 650, 652
Chaimberlain ». Williamson... 26
Chalfant v. Payton.......... 31

Chamberlain v. Chamberlain. . 107
Chamberlain v. Robertson... . 182

Chambers v. Chambers....... 389
Chambers v. Ker............ 577
Chandler v. Glover........... 568

Chandler v. Simmons..... 559,

565, 568, 582, 691, 757
Chapin v. Chapin............ 425
Chapin v. Cooke............. 31
Chapin v. Shafer............. 574
Chapman v. Hughes......... 553
Chapman »v. Kellogg......... 185
Chapple v. Cooper........... 553

Chapskey v. Wood. . . .479, 480, 481

Charles v. Charles........ 201, 279
Charles v. Lamberson........ 256
Chase v. Chase....... 337, 338, 347
Chase ». Fritz.............. 16, 26
Chase v. Wright............. 775
Chase’s Case.............4.- . 210
Chattahoochie Brick Co. ».
Braswell ccsiiccie vee vd ae buia 708
Chatterton v. Chatterton... .. 438
Chavennes ». Priestley....... 634
Cheeley v. Clayton....... 338, 347
~ Cheever v. Wilson. .. .117, 334,
338, 427
Chellis ». Chapman...... 27, 28, 30
Cheney v. Arnold............ 90
Cheney v. Roadhouse........ 751
Cheshire v. Barrett.......... 572
Cheshire v. Payne........... 277
Chestnutt v. Chestnutt...131,
291, 359
Chew v. Commissioners....... 198
Chew’s Estate...........-.. 784
Chew »v. Beall............... 222

Chicago City Ry. Co. v. Robin-

Chicago, etc., Bank ». Mitchell 301
Chicago, etc., Ry. Co. v. Dunn 239
Chicago, etc., Co. v. Wilcox... 606
Chicago Indemnity Assn. »v.
RLV

TABLE OF CASES CITED

[References are to sections]

Childs v. McChesney......... 250
Chitton ». Chitton........... 335
Choice v. State.............. 689
Christianberry v. Christian-
BGR Ysisind ina pe pies is CRS 391
Christianson, In re....... 431, 628
Christmas v. Mitchell........ 693
Christopher v. Cox........... 611
Christy ». Harmon........... 279

Chunot v. Larson......... 161, 311

Church », Bull.............. 216
Church v. Bullock........... 533
Churchill v. Lewis........... 145

Churchward v. Churchward... 402
Clark v. Bayer. . .473, 480, 481, 510
Clark v. Beers.............05 753
Clark ». Bird. ............0.. 263
Clark v. Board of Directors.... 531

Clark v. Burke.............. 125
Clark », Burnside............ 749
Clark v. Cassidy............. 429
Clark v. Clark. ..170, 178, 277,
327, 349, 405, 491, 745
Clark v, Cox............0005 120
Clark v. Field............... 332
Clark v. Fisher.............. 650
Clark v. Garfield............. 753
Clark ». McCreary........... 236
Clark v. McMahon.......... 278
Clark v. Morey........... 718, 719
Clark v. Tate............... 566
Clark v. Wilkinson........... 773
Clark v. Wooton............. 239
Clarke v. Loth.............. 280

Clarke v. Pendleton...... 16, 18, 27
Clarke v. State.............. 731
Clarke v. Van Court. .558, 560, 564
Clark’s App................ 735
Clarkson v. Hatton....... 464, 467

Clapp v. Clapp.............. 389
Clapp »v. Fullerton........... 652
Clapp v. Stoughton....... 174, 293
Clasen », Pruhs.............. 484
Clausen v. La Franz.......... 167
Clawson v. Hutchinson....... 253
Clay v. Clay................ 437

Clay v. Shirley.............. 476
Claypool v. Jacques.......... 273

Clayton v. Wardell........... 103
Clem v. Holmes............. 527
Clement v. Clement.......... 752

Clement v. Mattison......... 44
Clements v. London, etc., Ry.

COV a citi ick Gand ane 556
Clifford v. Laton............- 124
Cline v. Cline............... 364
Cline, In re.............-45. 652
Clodfelter v. State........... 708
Cloud v. Hamilton........... 477
Clow v. Chapman............ 144
Chaff ¢: Dayo sie. as ea cecaie 734
Clyde v. Cunningham........ 551
Coad v. Coad............-- 87, 89
Coates v. Cheever........... 207
Coates v. Robinson.......... 225
Cobbey v. Buchanan......... 597
Cocei v. Cocci. ......5..22.-- 443
Cochrane v. Cochrane........ 399
Cochrane v. Davis........... 592
Cochrane, In re............. 115
Cochran »v. Fillans........... 737

Cock v. Richards............ 17

Cockley v. Miller............ 244
Cockrill ». Cockrill........... 676
Coddington v. Coddington.... 336
Coe v. Wolcottville Mfg. Co. .. 175

Coffee v. Black.............. 448

Coffee ». Haynes............ 702
Coffin v. Bramlitt............ 767
Coffin v. Morrill............. 172
Coggswell v. Tibbetts........ 213
Cohee v. Bayer.............. 618
Cohen »v. Porter............. 135

Cohen v. Mut. Life Ins. Co.... 718

Cohn v. Seott............00. 448
Colburn v. Colburn....... 337, 345
Colburn v. Marble........... 28
Colburn v. State............. 749
Coleman v. Com. ............ 672
Colby v. Colby.............. 433
Colby v. Jackson............ 633
Cole v. Am. Mission Soc... .... 279
Cole v. Cole. . .42, 46, 158, 349,

364, 423, 424, 425
Cole »v. Cottingham......... 17, 21
Cole v. Holliday............. 19
TABLE OF CASES CITED

xlv

[References are to sections]

Cole ». Pennoyer............ 541
Cole v. Seeley............... 180
Cole »v. Van Riper......... 237, 249
Coleman v. Burr.......... 128, 240
Coleman v. Robinson......... 650

Cole’s Widow v. His Executors 267

Coley v. Statesville.......... 708
Collamore v. Learned........ 467
Collier ». Brown............. 124
Collingwood v. Pace.......... 714
Collins v. Collins......... 413, 414
Collins v. Dixon............. 751
Collins v. Jessot............. 6
Collins v. Levenberg......... 225
Collins v. Rudolph........... 224
Collins v. Ryan............. 75, 76
Collins v. Slaughter.......... 772
Collins v. Voorhees.......... 107
Colvin ». Reed........... 334, 342
Colwell v. Phillips............ 123
Comer v. Chamberilain....... 198

Comer v. Ritter Lumber Co. .. 602
Comer v. Shehee...........-. 504
Comer v. Taylor.......... 527, 528

Comitis v. Parkerson......... 712
Commander ». Brazile........ 587
Com. v. Armstrong .......... 486
Com. v. Bakeman............ 351
Com. v. Barry............... 118
Com. v. Bowen.............. 708
Com. ». Buccieri............. 662
Com. ». Deacon ............. 590
Com. v. Detwiller............ 714
Com. v. Dill ................ 104
Com. v. Dudash. ............ 686
Com. v. Eagan .............. 157
Com. v. Feeney.............. 157
Com. v. Gilbert.............. 689
Com. ». Graham........... 96, 475
Com. ». Green ....... 624, 703, 704
Com. ». Hamilton Mfg. Co.... 2
Com. ». Hawkins......... 685, 687
Com. ». Hayden............. 104
Com. »v. Holt..............-- 108
Com. v. Hopkins ............ 157
Com. v. Horregan............ 628
Com. v. Jackson............. 108

Com. v. Kirkbride ........ 633, 634
Com. v. Lane....... 95, 96, 98, 100
Com. v. Lee. ..... 66-0. eee eee 495
Com. »v. Littlejohn. .......... 108
Com. v. Lynes. .............. 612
Com. v. McAfee ............. 115
Com. v. McNamee........... 674
Com. v. Mead............... 624
Com. v. Moore .............. 157
Com. v. Mosler........... 660, 661
Com. v. Munsey............. 157
Com. v. Munson............ 85, 87
Com. v. Murphy............. 626
Com. v. Murtaugh........... 108
Com. v. Neal................ 157
Com. v. Noreross...........- 104
Com. v. Phillipsburg ......... 298
Com. v. Pratt ............006 157
Com. v. Pray...........-.045 772
Com. 2, Rash............-... 460
Com. v. Rhodes............-. 737
Com. v. Richards. ........... 320
Com. v. Roberts............. 157
Com. v. Rogers.............. 658
Com. v. Sapp...........-6 158, 159
Com. v. Shepherd............ 443
Com. v. Sigman.............. 486
Com. v. Spink............... 159
Com. v. Whitney..... 373, 673, 674
Com. v. Wood............ 118, 157
Compagnie Francaise v. State
Board of Health........... 713
Compton v. Bearcroft........ 96
Compton v. Pierson.......... 237
Compton ». State............ 159
Conant v. Conant............ 389
Conant v. Burnham.......... 125
Conboy v. Howe............. 491
Concord v. Rumney.......... 637
Concord Bank »v. Bellis....... 176
Condon v. Barr.............. 244
Cone v. Cone................ 383
Confrode v. Circuit Judge... .. 717
Conger v. Conger............ 372
Conkey v. Dickinson......... 734
Conn. ». Coburn............. 578
Conn v. Conn.............. 66
Connell v. Putnam .......... 510
xlvi

TABLE OF CASES CITED

[References are to sections]

Connor ». Stanley...........
Connors v. Connors..........
Conrad v. Baltimore & Ohio

RR Re Coy. age Seen ak eee 604
Conrad v. Williams.......... 31
Conran v. Lowe............. 107
Continental Nat. Bank v, Clark 252

Converse v. Converse........ 650
Conway »v. Smith......... 245, 247
Cook ». Cook........ 332, 341,
357, 423, 448
Cook v. Hill................. 462
Cook ». Holbrook............ 289
Cook »v, Lindsey............. 297
Cook v. Walley.............. 129
Cook v. Wood............... 146
Cook County v. Chicago Indus-
trial School for Girls....... 630
Cooke v. Cooke.............. 405
Cooke v. Husbands.......... 224
Cook's Esti. i ess vekass eos 429
Cookson v. Toole......... 224, 245
Coolege v. Neat............. 27
Cooley v. Dewey............ 460
Coon ». Cook............... 779
Coon v. Moffett.......... 523, 525
Cooney v. Woodburn......... 227

Cooper v. Cooper... .. 328, 414, 415
Cooper v. Crane............. 73

Cooper ». Hunchin........... 298
Cooper v. Lloyd............. 122
Cooper v. MeJunken......... 534
Cooper v. McNamara........ 492
Cooper »v. State ............. 484
Cooper v. Wallace........... 638
Coover v. Davenport ........ 11
Copeland v. Boaz............ 114
Copeland v. Illinois Cent. Ry.
Conse Aer naeoantisees 160
Copely v. O’Neill............ 726
Coppage v. Alexander........ 31
Corn Exchange Bank ». Bab-
OOK ass dts wud Seaspscel yee 237, 248
Cordova, Matter of.......... 731
Corley v. Corley............. 231
Corn v. Powell.............. 467
Cornelius ». Hambay......... 165
Corning v. Fowler........... 289°

Cornish v. Cornish........... 445
Cornwall v. Hawkins......... 568
Corpe v. Overton......... 563, 566
Corrie’s Case..........-.-4+ 675
Cory v. Carter.............. 531
Cory v. Cook..... Yt dona ae ag 493
Coryell v. Colbaugh.......... 30
Costill v. Costill.......... 401, 404
Cotton v. Wolf.............- 479
Cotton’s Admr. v. Wolf....... 771
Couch v. Palmer............- 250
Coursey v. Coursey.......... 444
Coursolle v. Weyerhauser..... 607
Covington v. Leak........... 753
Covington v. O’Meara........ 672
Cowan v. Cowan............ 403
Cowden v. Wright........... 514
Cowdry v. Hitchcock......... 304
Cowley v. Robertson......... 180
Cowls v. Cowls..........-.-. 782
Cox v. Combs............... 67
Cox 0; Coke: sedge cesses 341, 381
Cox v. Johnson.............. 538
Cozens v. Long.............. 698
Craig v. Craig............ 357, 424
Craig v. Van Bebber. .541, 565,

574, 582
Craighead v. Wells........... 565
Crain v. Mallone............ 505
Cram v. Cram............... 378
Cramer v. U.S.............. 718
Crane v. Crane........... 399, 443
Crane v. Gough............. 273
Crane v. Reeder............. 714
Craufurd v. Blackburn....... 458
Craven v. Craven............ 334
Crawford v. Crawford........ 384
Crawford v. Redus........... 312
Crawford v. Scovill.......... 646
Crawford v. State............ 66

Crawford v. The William Penn 718

Crawford v. Thompson....... 294
Creagh v. Tunstall........... 645
Creech v. Creech............ 590
Crehore v. Crehore........... 70
Creuze v. Hunter............ 479
Crewe ». Crewe.............. 403

Crichton », Crichton. .357, 359, 395
TABLE OF CASES CITED
[References are to sections]

D’Agular v. D’Agular..... 359,
392, 394, 395, 405, 414, 418

Crittenden v. Schemerhorn . 122, 327

Croft v. Terrell. ............. 735
Cromwell v. Benjamin ... .120,

123, 493
Cronin v. Adams............ 2
Cronise v. Cronise........... 330
Cropsey v. Ogden............ 100
Crosby ». Otis.............6. 167
Cross v. Cross....... 5.00005. 458
Cross v. Grant.............. 150
Cross v. Kent............ 655, 656
Cross v. Rutlege............. 165
Crouch v. Crouch............ 432
Crouse, Ex parte............ 628
Crow v. Crow...........5005 357
Crowley v. Lumber Co....... 203
Crowner v. Crowner.........- 441
Crowther v. Crowther........ 292
Cruger v. Douglass........... 114
Crump v. Morgan......,.... 46
Crutchfield, Ex parte..... 729, 785
Culmer v. Wilson......... 132, 1385
Culp v. Price......... 2. ec eee 505
Culp v. Stanford............. 772
Culpepper v. Culpepper...... 415
Cuming v. R. R. Co....... 510, 514
Cumings v. Bird............. 761
Cumming v. Board........... 531
Cummings v. Cummings. .389,

442, 767
Cummins ». Cummins........ 405
Cumnar v. Milton........... 483

Cunningham v. Cunningham... 107
Cunningham v. Reardon. .121,

122, 129
Cunningham ». State......... 660
Currier v. Teske.......... 282, 283
Curtis v. Cochran............ 704
Curtis v. Devoe............. 779
Curtis v. Hobart............. 349
Curtis ». Simpson......... 222, 231
Cushing v. Blake............ 198
Cutler v. Brewster..........- 117
Cutler v. Butler............. 305
Cuyler v. Wayne........-... 731
Dade Coal Co. v. Haslitt...... 708

Daden v. Farwell...........- 591

xl vil

Daggett v. Wallace.......... 29
Dain ». Wyckoff...... 528, 526, 527
Dakin v. Dakin....... Y eratie ioe 210
Dale v. Robinson...........: 225
Daley v. Railroad Co. ........ 606
Dalheim v. Lemon........... 708:
Dalrymple v. Dalrymple. ..84, -
89, 90, 96
Dalton v. State......... ere 462
Dame v. Coffman............ 247

Damron v. Com............. 587
Danbert v. Western Meat Co. . 453
Danforth v. Danforth........
Daniel v. Daniel.............

Daniel v. Hill

Daniels v. Benedict..........
Daniels v. Lowery..........-
Daniels v. Richardson........

D’Anna, In re

Darby v. Boucher............
Darlington’s Appeal.........
Darrow v. Calkins...........
Daubney v. Hughes..........
David v. David..............
David’s Appeal.............
Davidson v. Abbott..........
Davidson v. Graves..........

Davenport v.

Lynch.........

D’Avignon, In re............
Davis v. Baugh. .............
Davis v. Beason .............
Davis v. Bomford............

_ Davis v. Combs............--

Davis ». Compton ...........
Davis v. Davis. . .210, 335, 412, 451

372

Davis ». Dinwoody........... 158
Davis v. Fogle.............5. 467
Davis v. Garrett............. 504
Davis v. Green .......-...--. 299
Davis v. Hudson............. 731
Davis ». Lanning ............ 702
Davis». Mason .......... 198, 200
Davis v. Rame ............. . 733
Davis v. Saladee............. 184
Davis ». St. Vincent’s Inst. ... 126
Davis v. State............005 612
xl viii

TABLE OF CASES

CITED

[References are to sections]

Davisv. U.S. ............... 670
Davol ». Davol.............. 423
Dawson v. Dawson.......... 499
Day 0. Day occ cc xcns eeveas ox 447
Day v. Messick.............. 180
De Angelis, Matter of........ 446
Deal v. Sexton.............. 453
Dean; In £0. 33.65 oe ss sts 775

Dean v. Metropolitan Ry. Co.. 283

Dean v. Peel................ 523
Dean »v. Skiff... 2.0... ee 24
Dean v. State............... 485
Deane v. Aveling............ 48
Deane ». Littlefield.......... 609
Debenham ». Mellon...... 120, 127
De Berry v. Wheeler......... 300

De Biddulph’s Trusts, In re... 694
De Blanquiere v. De Blanquiere 421
Decell v. Lewenthal....... 546, 554

Decker v. Decker............ 389
Decker v. Fessler............ 779
Dedham »v. Natick........... 494

Deeds »v. Strode............. 36

Deegan v. Deegan........... 785
Deenis v. Deenis............. 412
Deering v. Boyle............. 225
De France v. Johnson........ 218
Defries v. Davis............. 595
Degenhart v. Carscraft....... 757
De Gray v. Richardson....... 199
De Harn v. Mexican Ry. Co. .. 717
Dehl v. Rogers.............. 706
Delafield v. Parish. . .649, 650, »
651, 667
De la Garde v. Lempriere. ... . 232

De La Montanya v. De La
Montanya............. 339, 446
Delano v. Bruerton..........
Delano, In re...............
De La Rama v. De La Rama.. 332

Delaware, etc., Ry. Co. »v.
Reichs:424 ceyasseees caus 604
De Lima v. Bidwell.......... veel
Deller v. Deller.............. 6
Delliber v. Delliber.......... 393
Delphit v. Young............ 72
Delvee v. Boardman......... 519
De Meli v. De Meli....... 336, 342

Deming, Inre.............-- 383
Denegre v. Denegre..........- 299
Den v. Gibbons.............. 651
Den v. Lawshee............- 176
Dennick v. R. R. Co. ......--- 717
Denning v. Williams......... 222

Dennis v. Clark.......... 493, 510
Dennis v. Dennis. 317, 373, 396, 399

Dennison v. Nigh............ 172
Dennison v. Page............ 458
Dent v. Dent...............- 395:
Den v. Van Cleve...........- 612
Depas v. Mayo.............. 301
Derby v. Phelps............. 16
Deringer v. Deringer......... 450

Derocher v. Continental Mills 555
Derouche v. Savetier......... 301
Descelles v. Cadmus......... 122
Describes v. Wilmer....... 725, 730

Desilver, In re.............. 646
Deskins v. Gose........- .... 587
Despain v. Wagner........... 283
De Thorn v. Atty. Gen. ...106, 107
Detroit Chamber of Com. ».
Goodman. ............... 245
Devanbaugh »v. Devanbaugh
48, 51
De Vaughn v. McLeroy....... 172

Devin v. Scott........... 676, 677
De Vries v. Conklin.......... 237
Dewes v. Dewes.............. 420
Dewey v. Allgire..... 642, 644, 647
De Wilton v. Montifiore...... 97

De Wolf v. Middleton........ 714
Dexter v. Hall............... 640
Dey, Matter of.............. 634

Dezendorf v. Humphreys..... 222

Dibble v. Dibble............. 728
Dick v. Grissom............. 476
Dicken v. Railroad Co. ....... 606
Dickenson v. Winchester...... 469
Dickerman v. Graves......... 165

Dickerson v. Dickerson. . . .285, 785

Dickey v. Shirk.............. 207
Dickinson v. Barber.......... 656
Dickinson ». Dickinson... .... 349
Dickson ». Waldron.......... 672
Dickson’s Appeal............ 460
TABLE OF CASES CITED

(References are to sections]

Dieterich v. Hutchinson. . .220, 249

Dietrich ». Northampton. .... 453
Dilley ». Henry’s Exrs. ....... 236
Dillon v. Dillon...... 393, 398, 399
Di Lorenzo v. Di Lorenzo... .. 70
Disconto Gesellschaft v. Um-
DYOlti wile and ern wanawinte aes 717
Ditmar v. West.............. 761
Ditson v. Ditson...... 34, 334, 340
Dixon v. Bell. ............... 508
Dixon v. Dixon.............. 171
Dixon v. Merritt......... 574, 584
Doane v. Feather’s Est. ...... 178
Dodd ». St. John............ 255
Dodge v. Adams............. 491
Dodge v. Cole............ 635, 726
Dodge v. Dodge............. 500
Dodge v. Knowles........... 225
Dodson v. McAdams...... 470, 474
Doe v. Barford.............. 302
Doe v. Flemming............ 106
Doe ». Harter............... 680
Doe ». Howland............. 249
Doe v. Killen............-..- 196
Doe v. Manning............. 290

Doe v. Polgrean. ............ 173

Doe v. Pritchard ............ 699
Doe v. Roe.............. 148, 144
Doe v. Rusham.............. 290
Doe v. Scuddermore......... 199
Doe v. Staples .............. 305
Doe v. Wilkins.............. 173
Doed v. Griger.............. 231
Doerr v. Forsythe............ 341
Dolan v. Brooks............. 120
Doles v. Hilton.............. 538
Dollner v. Snow............. 244
Dolph v. Hand.............. 579
Dolphin v. Robins........... 117
Domling v. Domling......... 646
Donahoe v. Chicago Cricket
Clabases guises eenes pases 264

Donegan v. Donegan......... 178
Donald v. Donald............ 356
Donovan v. Donovan........ 426
Donley v. Shields............ 737
Donne v. Maun............. 759

4

Donnelly, Inre.............. 702
Donovan v. Ward............ 582
Doolittle ». Doolittle......... 357
Dorion v. Laurent........... 51
Dorsey v. Sheppard.......... 725
Dorsey v. Thompson......... 719
Dorrance v. Scott............ 182
Dorr v. United States........ 711
Doss #. Campbell............ 301
Doss v. Peterson............. 182
Dostor v. Atlanta............ 708
Doty v. Mitchell............. 224
Douge v. Pierce............. 134
Dougherty v. Powe.......... 640
Dougherty v. Snyder......... 117
Doughty ». Doughty......... 342

Douglass v. Douglass...... 361, 372
Douglass v. Ferris...........
Douglass v. Kessler. ..772, 773, 786

Douglass’s Appeal ........... 767
Dow »v. Blake............ 424,.427
Dowdell v. Petitioner......... 634
Dowling v. Crapo. ........... 519
Downer v. Howard........... 438
Downey v. Downey.......... 423
Downing v. Stone............ 563
Downs v. Bidwell............ 711
Doyle, In re................ 462

Doyle v. Petitioner........... 634

Doyley v. White............. 298
Drake v. Hanshaw........... 618
Drane v. Bayliss............. 734
Draper v. Draper............ 612
Drennan v. Douglas.......... 455
Drew v. Nunn............... 642
Dritt v. Snodgrass........... 537
Drude v. Curtis............. 564
Drummond v. Drummond.... 389
Drury v. Drury.............. 215
Druxtad v. Druxtad....... 334, 335
Dubois v. Jackson........... 236
Dubose v. Whidden.......... 578
Dudley v. Dudiey............ 277
Dudley v. Easton............ 208
Duffield v. Cross............. 470
Duffield v. Williamsport School
DiStissiacs Ae eave tes wae Tiecane 532
] TABLE OF CASES CITED

[References are to sections]

Dugert v. Rifmenschneider
272, 273
Dugger v. Dugger............ 200
Duke v. Duke............... 227
Dumarsley »v. Fishley....... 85, 89
Dunbar v. Meyer............ 237
Dunean v. Dunecan........... 90
Dunham v. Dunham...... 336, 337
Dunlap v. Dunlap........... 357
Dunlap v. Hales............. 569
‘Dunlap v. Robinson.......... 460
Dunlap v. Thomas........... 218
Dunlop v. Lamb............. 279
Dunn v, Dunn........... 357, 373
Dunn v. Portsmouth Sav. Bank 218
Dunn v. Sargent.......... 171, 236
Dunton v. Brown............ 575
Dupree v. Boulard........... 99
Dupuy v. Wurtz............. 4
Durant y. Durant............ 395
Durham y. Durham.......... 42
Durham v. Smith............ 651

Durkee v. Cent. Pac. Ry. Co. . 509

Durkee v. Durkee............ 464
Duryea v. Bliven............ 320
Dutcher v. Dutcher....... 335, 336
Duthey v. State.......... 661, 670
Dutton v. Dutton............ 322
Duval v. Duval.............. 299

Duvall v. Farmers’ Bank. .230, 233

Dyelt v. Cent. Trust Co. ..... 274
Dyer v. Brannock....... 87, 90, 93
Dyer v. Dyer............ 382, 505
Dyer v. State.............0. 164
Dyke v. Randall............. 215
Dysart v. Dysart............ 394
Dwyer v. Nolan............. 434
Earl v. Dresser.............. 737
Earl v. Godley.............. 80
Earl v. Kingscote............ 133
Earl of Bucks ». Drury....... 542
Earle v. Earle............... 410
Earle v. Peake............... 552
Earle v. Reed............... 578
Easley v. Craddock.......... * 691
Eastland v. Burchell... ... fens AQ2
Eastman v. Powell........... 505

Easton v. Huott............. 714
Eastwood v. Kenyon......... 182
Eaton v. Haton........ 67, 107, 642
Eaton v. Hill...............- 599
Eaubanks v. Banks.......... 455
Eckhoff v. Eckhoff........... 413
Eckford v. Knox............- 464
Eddy v. Courtright.......... 152
Edelmuth v. Wyhaut......... 289
Edgerly ». Shaw............. 570
Edgerly v. Union St. Ry...... 683
Edgerton v. Edgerton........ 410
Edings v. Brown..........-.. 179
Edmonson v. Welch.......... 206
Edsall v. Vandemark......... 738
Edson v, Edson....... 64, 431, 432
Edwards v. Davis............ 499
Edwards v. Edwards......... 367
Edwards v. Mister........ 567, 569
Edwards v. Schoeneman...... 249
Edwards v. State............ 673
Edwards v. Wessenger........ 133
Egbert v. Greenwalt......... 145
Eichar v. Kistler............. 527
Eichelberger’s Est., In re..... 506
Eichhoff v. Eichhoff........ 36, 415
Eidam v. Finnegan........... 738
Eikerenkotter, In re......... 731
Eingartner ». Ill. Steel Co. .... 717
Ekiu v. United States........ 713
Bila 'y. Was <3 mie vee wads eerie 423
Elder v. Reel............. 213, 218
Eldredge v. Forrestal......... 206
Eldredge v. Palmer.......... 647
Ellen v. Topp.............0 591
Eliason v. Bronnenberg....... 759
Elibank v. Montolieu..... 231, 293
Eliot v. Eliot. ............... 417

Ellington v. Ellington..... 518, 523

Ellington v. Harris........... 167
Elk v. Wilkins............... 711
Elliot v. Elliot.......000..... 372
Elliott v. Elliott. ....39, 41, 46, 100
Elliott v. Gower............. 225
Elliott ». Horn.............. 543
Elliott v. Western Coal Co.... 505
Elliott’s Est., Inre.........., 504

Ellis v. Davis............... 257
TABLE OF CASES CITED li

[References are to sections]

Ellis v. Hllis.............. 393, 552
Ellis ». Soper..........-.60.. 745
Ellison v. Mayor............. 326
Ellison v. Mobile............ 201

Ellison v. Straw..........-..
Ellis’s Est., In re... . .336, 344, 432

Ellsworth v. Hinds........... 170
Elrod v. Lancaster........... 763
Elsom v. Fawcett............ 150
Elwell v. Martin ............ 542
Elwes v. Elwes.............- 393
Ellwood v. Northrup......... 757
Elzas v. Elzas............--. 89
Elzey v. Elzey.............-- 44
Emancipation of Pochelu..... 538
Emerson v. Boville..........- 302
Emerson v. Spicer........... 750
Emmerich v. Thorley......... 632
Emmett v. Norton........... 120
Engelbert v. Troxall. .547, 564,

582, 584
Engelhart v. Young.......... 494
England v. Downes........-. 277
Engler v. White..........-.. 263

English v. English........ 358, 448
Eperson v. Nugeht........... 547
Equitable Trust Co. v. Garis.. 638
Erie, etc., Ry. Co. v. Schuster. . 606

Esbach v. Esbach............ 369
Espey v. Jones........-.-.- 14, 29
Essery v. Cowland..........- 271
Essex v. Essex... ......0-0055 48
Estabrooks v. Prentiss.......- 161

Estill v. Fort..........00-5-- 133
Eureka Co. ». Edwards. .. .564, 566
Evans v. Anderson........... 303
Evans v. Crawford County.... 311
Evans v. Evans. .285, 355, 357,

360, 362, 369, 389

Evans, In re........--- +--+ 487
Evans v. Kanze..........--- 238
. Evans v. Pierce..........---- 736
Evans v. Rugee..........-+-- 287
Evansville v. Senhenn.......- 606
Evelyn v. Chichester......... 572
Evelyn v. Templar........... 290

Everett v. Everett.........-- 64
Everett v. Sherfey.....,.. 492, 529

Evers v. Vreeland............ 239
Everton ». Everton.......... 357
Ewing v. Ewing............. 332
Ewing v. Smith.............. 224
Ewing v. Wheatley........... 69

Eyre ». Countess of Shaftsbury 628
Exchange Bank v. Watson.... 278
Ex parte Ah Peen............ 628,

Ex parte Ambrose........... 423
Ex parte Bailey............. 479
Ex parte Bartlett............ 744
Ex parte Becknell........... 628
Ex parte Chace.............. 691
Ex parte Crouse............. 628
Ex parte Crutchfield...... 729, 785
Ex parte Felchlin............ 2
Ex parte Francois........... 58
Ex parte Franks............- 184
Ex parte Garland............ 706
Ex parte Goodell............ 2
Ex parte Hall............... 2
Ex parte Heheiter........... 725
Ex parte Hollopeter.......... 39
Ex parte Hopkins........... 479
Ex parte Loving. ...........- 628
Ex parte March............- 270
Ex parte Robinson........... 2
Ex parte Unity, etc., Assn.... 598
Ex parte Wragg........-.--- 636
Epics ait antalecalaoare 442
Be 3 Pies caceeeens ihe wee ans 377
Fairbanks v. Snow.......--.- 607
Fairchild v. Fairchild. ...... 70, 207
Fairfax v. Hunter......... 718, 714
Fairmount, ete., Ry. Co. »
Suthers ic os4ee bess dale ces 470
Farley v. Farley........ 77, 82, 185
Farley v. Parker............. 646
Farmer v. St. Paul........... 630
Farmer’s Bank v. Boyd....... 248
Farmers’, etc., Bank v. Wal-
lkGe is Se save tees a aee esos 178
Farnham v. Farnham........ 395
Farnham »v. Pierce........... 629

Farnsworth v. Cole.......... 204
Farnsworth v. Farnsworth
376, 378
lii TABLE OF CASES CITED

[References are to sections]

Farrar v. Farrar............. 449°
Farrell v. Farrell............. 476
Farrell v. Patterson.......... 299
Farrington v. Secor....... 784, 786
Farrow v. Farrow......... 191, 192
Farthing v. Shields........... 246
Farwell v. Cramer........... 299
Faulkner v. Davis........... 757
Fay ». Hurd................ 731
Fay v. Oatley............... 76
Featherstone v. People....... 612
Fears v. Riley..............- 595
Feigly v. Feigly.......... 410, 414
Felchlin, Ex parte........... 2
Feldman v. Detroit United Ry.

CO ie ty Gade Bowes eSee ees 515
Felker v. Emerson........... 311
Fell v. Brown...........--.- 182
Fellows v. Fellows........... 382
Fellows v. Little............. 505
Felt v. Felt................. 342
Fendall v. Goldsmith......... 116
Fennessey v. Fennessey....... 277

Fenton v. Reed.............. 60

Fenton v. White............. 578
Ferebee v. Pritchard......... 277
Ferguson v. Bobo......... 587, 598
Ferguson v. Brooks....... 133, 135
Ferguson v. Jones......... 464, 465
Fernsler v. Moyer............ 741
Ferrers v. Ferrers............ 391
Ferriter v. Taylor............ 535
Ferry v. Ferry............... 335
Fessenden v. Jones........... 762
Fettyplace v. Gorges......... 306

Fidelity Trust Co. v. Glover... 753
Fidler ». McKinney.......... 30

Field v. Herrick............. 750
Fife v. Oshkosh.............. 239
Filler ». Tyler............... 226
Finch v. Finch.............. 494
Fink v, Fink................ 369
Fink v. Furnace Co.......... 604
Fink v. St. Louis............. 514

Finlay v. Chirney........... 25, 26

Finley v. R. R. Co. .......... 510
Finn, In re................. 480
Firebrass v. Symes........... 185

First Nat. Bank v. Garling-
Ouse? 6) dig agave aw ned ame 298

Fisher v. Conway........---- 311
_ Fisher v. Fisher............-. 389
Fisher v. Koontz..........- 6, 280
Fishli v. Fishli...........- 372, 410
Fitts v. Fitts............. 382, 739
Fitts v. Hall..........-.- 564, 597
Fitzgerald v. Reed........... 642
Fitzgerald v. Weston......... 683
Fivecoat v. Fivecoat......... 412

Flach v. Gottschalk....... 640, 644
Flanagan v. People. . .660, 685, 689

Flash v. Conn. .............- 717
Flattery v. Flattery.......... 442
Fleet v. Perrins.............. 167
Fleming v. Fleming.......... 360
Fleming v. People............ 108
Fleming v. Townsend........ 290
Flemming v. Borden......... 251
Flesh v. Lindsay... ... 133, 135, 312
Fletcher v. Fletcher.......... 633
Fletcher v. Parker........... 738
Fletcher v. People........ 484, 485
Fletcher v. State............- 109
Flight ». Balland............ 617
Florida Cent. Ry. Co. v. Wil-
AMS? 4ecne ace wesc et wean 697
Flower v. Flower............ 342
Flynn v. Flynn........... 202, 217
Flynn v. Messenger.......... 120
Fogarty v. Ream............ 772
Folds v. Allardt............. 575
Foley v. Foley............... 467
Foley v. Mut. Life Ins. Co. .... 722
Folmar v. Folmar............ 444
Fonda v. Van Horne...... 541, 607
Fong Yue Ting v. United
States... 0.0... 713, 721
Foot v. Card................ 143

Foote v. Nickerson. ..317, 320, 322
Ford v. Ford..... 367, 368, 372, 445
Ford v. MeVay.............. 590
Ford v. Phillips..............
Ford v. State...............,
TABLE OF CASES CITED

[References are to sections]

Forney ». Hallacher.......... 108
Fornshill ». Murray....... 106, 330
Forster v. Forster............ 396
Forsyth, Matter of.......... 588
Fort Worth, etc., Ry. Co. ».

Robinson. .............005 509
Forwood v. Forwood......... 215
Foscue v. Lyon.............. 753
Foss v. Foss... ......000005 70, 447
Foster v. Aleston............ 739
Foster v. Foster............. 399
Foster v. Hanchett........... 22
Foster v. Marshall........... 195
Foster v. Means............. 42
Foster ». McKinnon......... 697
Foster v. Mott.............. 730
Foster v. Waterman.......... 465
Foster v. Wilcox............. 182
Fowcks v. Baker ............ 491
Fowler v. Fowler............ 457
Fowler v. McLaughlin........ 779
Fox v. Davis................ 320
Fox v. Dawson.............. 328
Fox v. Drewey.............. 582
Fox v. Gordon........... 129, 130
Fox v. Hicks................ 483
Fox v. Oakland, etc., St. Ry.

CO Saad oes ine Dek basta, 606
Foye v. Bell................. 773
Frame v. Thorman........... 100
Francois, Ex parte........... 58
Franke v. Franke............ 70
Frankel v. Frankel........ 131, 291
Frankenfield’s Appeal........ 751
Franklin v. Beatty........... 182

Franklin v. Franklin. . .89, 117, 371
Franklin v. Lee.............. 92
Franklin v. McCorkle. .... 520, 521
France’s Est.. .............. 129
Frasher v. State............. 58
Fratlini »v. Castlini...........
Frazier v. Andrews...........
Frazier v. Fulcher............ 702

Frazier v. Jenkins............ 759
Freda v. Bergman........... 440
Freeman v. Boland........... 599
Freeman v. Brewster......... 774

Freeman v. Bridger....... 547, 549

Freeman v. Coit............. 495
Freeman v. Freeman. .357, 360, 443

Freeman v. Foss............. 474
Freeman v. Halkins.......... 116
Freeman v. Nichols.......... 558
Freeman v. People........... 662
Freeman v. Pope............ 289

Freeman v. Robinson .488, 491, 493

Freeman’s Appeal........... 301
Freethy v. Freethy........... 131
Frefethen ». Lyman.......... 289
French v. Currier......... 746, 753
French v. French............ 678
French v. Peters............. 210
French Lumbering Co. v. The-
Haul oi daveey se cews awe ees 646
Freto v. Brown.............. 473

Friend v. Friend.......... 413, 417
Friesner v. Symonds......... 461
Friltz v. Fox... 0...0....00.. 180

Fritchey Lumber Co. v. Milling

CO. e 6 Sees eee es 299
Frith v. Frith............... 336
Fritz v. Fritz............. 364, 369
Fronker v. State............. 34
Frost v. Frost............... 75
Frost v. Knight......... 10, 20, 21
Frost v. Vought............. 9
Fry v. Derstler.............. 147
Bryo. FEY? scenues as ve a gewlse 232
‘Fuert v. Carter.............. 258
Fulkerson v. Holmes......... 458
Fuller v. Dame. ............. 32
Fuller v. McHenery.......... 316

Fulton v. Fulton. .367, 372, 452, 494

Furguson v. Tweedy......... 199

Furman v. Van Sise. .470, 479,
513, 523, 525

Furnes v. Meckelson......... 714
Fuss v. Fuss.............0-5 301
Gable, Tn 16: «see ¢ cases cas ee 737
Gabrowski v. State........... 158
Gaffney v. Hayden........... 555
Gafford v. Dunham.......... 121
Gailbraith v. Lunsford........ 183
Gaillard v. Gaillard.......... 372
liv

TABLE OF CASES CITED

[References are to sections]

Gaines v. Green Pond........ 207
Gaines v. Hennan............ 460
Gale v. Gale... 2. .........0. 270
Gall v. Gall........... 61, 106, 107

Gallagher v. Gallagher... .201, 214

Galloway v. McPherson...... 129
Galusha v. Galusha....... 320, 325
Gambette v. Brock........... 298
Gardiner v. Manchester..... . 92
Gardner v. Gardner. .258, 356,
357, 395, 682
Garland, Ex parte........... 706
Garland v. Dover............ 493
Garner ». Garner......... 334, 346
Garrett v. Reese............. 772
Gascott v. Bragg............ 467
Gastineau v. Com. ........... 2
Gaston v. Babcock........... 634
Gates v. Bingham............ 636
Gates v. Gates.............. 366
Gates v. Meredith........ 656, 683
Gathings v. Williams......... 56
Gatts v. Clark............... 493
Gavin v. Chicago............ 605
Gay v. Essen Electric St. Ry.

Os ihe w rea aden Se. tusencninees 604
Gay v. Johnson.............. 575
Gaylor v. McHenry.......... 213
Gebhard v. Shindle.......... 690
Geise v. Schultz............. 29
Gelzer v. Gelzer............. 215
Gentry v. Gentry. ........... 401
Genz v. State............... 660
George v. Bussing............ 305
Gerecke v. Gerecke.......... 425
German Bank »v. Heinstedt.... 241
Gernerd v. Gernerd.......... 144
Getcher v. Getcher........... 433
Gholston v. Gholston......... 394
Giant v. Giant.............. 349

Gibson v. Gibson............ 216
Gibson v. Soper.............
Gibson v. Zimmerman........ 177
Gibson’s Appeal.......... 460, 465

Gienar v. Meyer............. 717
Gilbert v. Brown............ 182
Gilbert v. Kolb.............. 753
Gilbert v. McEachen......... 745

Gilbert v. Reynolds.......... 218
Giles v. Giles......-..--.. 349, 448
Gilfillin’s Est............... 736
Gillenwaters v. Campbell..... 559
Gillespie v. Nabors........... 587
Gillett v. Gillett............. 44
Gillett v. Powell.......... 170, 171
Gillett v. Wiley............-. 763
Gilley v. Gilley....... 452, 493, 494
Gilliland v. Fenn............ 290
Gillis v. Goodwin..... . Serene 566
Gillman v. Gillman.......... 4
Gilmer v. Baker............. 734
Gilmore’s Est., In re......... 268
Gilpin v. Gilpin.............. 447

Gilson v. Spear........... 596, 597
Gimbel v. Smidth............
Girls’ Ind. Home »v. Fritchey.. 494
Given v. Marr.........-...- 349

Glascott v. Bragg............ 302
Glass v. Bennett............. 148
Glassell v. Glassell........... 787
Gleason v. Boston..........- 494
Gleason v. Gleason........... 117
Gleason v. Spray............ 263
Gledden v. Stuper........... 183
Glendenning v. Conrad....... 737
Glidden ». Taylor............ 289
Glocke v. Glocke............ 500
Glover v. Glover............. 410
Glover v. Ott...... 0.2.2.0... 550
Godbold ». Bass............. 172
Goddard v. Westcott... .. 15, 28, 30
Godfrey v. State.......... 624, 627
Goesel v. Davis.............. 161
Goff v. Anderson............ 196
Goldbeck ». Goldbeck. ....... 369
Golding’s Petition... ........ 610
Goldman ». Smith........... 266
Goll v. Fehr................. 251
Gonzalez v. Williams......... 711
Goodale ». Lawrence......... 126
Goodchild v. Foster.......... 629
Goode v. Harrison........... 575
Goodell, Ex parte............ 2
Goodenough, Inre........ 479, 480

Goodenow v. Empire Lumber
TABLE OF CASES

CITED lv

[References are to sections]

Goodman’s Trusts, In re...... 457
Goodrich ». Gordon.......... 718
Goodrich ». Harrison......... 763
Goodright v. Moss........... 459

Goodsell’s App., 55 Conn..... 171
Goodwin v. Goodwin.........
Goodwin v. Thompson...... 40, 41

Googins v. Googins.......... 100
Goove’s Appeal............. 409
Gordon v. Eans.............. 222
Gordon v. English........... 756
Gordon ». Gordon........ 237, 352
Gordon v. Potter............ 493
Gordon v. State............. 624

Gore v. Gibson. . 639, 642, 678, 679

Gorin v. Gordon.......... 274, 280
Gorman v. Budlong.......... 453
Gorman ». State............. 115
Gornne v. Franklin.......... 127
Gosman v. Cruger........... 248

Goss v. Froman.......... 2138, 458
Goss v. Stone..... 0.2.2.5... 730
Gosselt v. Patten............
Gott v. Culp............. 746, 787

Gould »v. Carlton............ 128
Gould ». Christianson........ 484
Gould v. Crawford........... 690
Gould v. Crow.............. 340
Gould ». Gould........... . 52, 71
Goulding v. Davidson..... 182, 183
Gourlay v. Gourlay....... 373, 674
Gove v. Cather............-- 208
Governeur v. Robertson...... 714
Governor v. Rector.......... 41
Govier v. Hancock........... 122
Gower v. Gower...........5- 899
Grace v. Hale............ 551, 554
Graham », First Nat. Bank.... 301
Graham v. Graham....... 366, 393
Graham v. Londonderry. ..190, 191
Graham v. Long............. 298
Graham v. Martin........... 19
Graham v. Tucker........... 135
Graham ». Wallace.......... 519
Grand Rapids, etc., Ry. Co. v.
Showersy acca oseee os sseeee 511
Grant v. Grant.........-. 358, 372
Grant v. Green............-. 128

Grant v. Mitchell............ 458
Grattan v. Grattan....... 508, 504
Grauman, Marx & Cline Co. ».
Krienitz........... 597, 598 618
Graves v. Graves..... 369, 423, 433
Graves v. Trueblood......... 199
Gray v. Dryden............. 175
Gray v. Durland.......... 470, 479
Gray v. Fox.............0005 753
Gray v. Gray........ 367, 414, 445
Gray v. Holmes............. 465
Gray v. Lessington........... 566
Gray v. Parke............... 784

Gray v. Schofield............ 263

Gray v. Thacker.....:....... 180
Great Western Ry. Co. v. Mil-

VOB secs Miacaucthad cask Senn oee 717
Grebill’s Appeal............. 172
Green v. Bennett............ 249
Green v. Branton...... ee teed 298

Green v. Green... .58, 448, 565, 579
Green v. King............... ‘177
Green v. Leiter.............. 206
Green v. Salas.............4.
Green v. State..... oreeaterees 108
Greene v. Greene..... 432, 433, 649

Greenheld ». Morrison........ 714
Greenhill v. Greenhill........ 446
Greenlaw v. Greenlaw..... Ve. 849
Greenleaf v. Hill.......... 169, 170
Greenleaf v. McColley........ 30
Greenup v. Stoker........... 30
Greenwalt v. McEnelly....... - 106
Greenwood v. Greenwood..... 523
Greer v. Critz...........0.. . 708
Greer v. Greer............ ... 646
Gregg v. Tesson............. 297
Gregory v. Gregory....... 337, 338
Gregory v. Lee.............- 545
‘Gregory v. Paul............. 184
Gregory v. Pierce..... 184, 367, 445
Gribben v. Maxwell....... 640, 642
Grier’s Appeal.............. 758
Griffin v. Griffin. . .76, 332, 409, 411
Griffith v. Clark..........2.. 298
Griffith v. Griffith........ Lee. 648
Grime v. Borden............: 320
lvi

TABLE OF CASES CITED

[References are to sections]

Grimm’s Est. ............... 106
Gring v. Lerch....... 10, 14, 15, 21
Grinnell v. Wells......... 510, 523
Grist v. Forehand............ 737
Griswold v. Griswold......... 632
Griswold v. Penniman........ 170
Griswold v. Waddington...... 718
Gritten v. Dickerson ......... 198

Grobe’s Estate, Inre......... 32
Groner v. Scholz.............
Grosman v. Lauher..........
Grosso v. Delaware.......... 153

Grove v. Neville............. 596
Grove Ry. Co. v. Center...... 164
Grover v. Zook.............. 8, 15
Grubb »v. Sult............... 26
Gruhl v. Gruhl.............. 413
Grumley v. Grumley......... 505
Guarantee Co. v. Lynchburg
First Nat. Bank........... 707
Guardianship of Klein........ 726
Guardianship of Tank........ 730
Gulf, etc., Ry. Co. v. Beall.... 153

Gulf, etc., Ry. Co. v. Redecker 529

Gunn v. Thurston........... 505
Guy v. Du Uprey..........-.. 751
Guy v. Livsey............... 137
Guyer ». Smith........... 711, 714
Haas v. Shaw............... 237
Hackett v. Brooksville Graded
School Dist. .............. 533
Hackett v. Hackett.......... 130
Hackett v. Moxley........... 223
Haddock v. Bank............ 753
Haddock ». Boston.......... 459

Haddock v. Haddock... .. 333, 338,

340, 342, 343
Haddon v. Haddon....... 414, 415
Hadley v. Baxendale......... 26
Hadley v. Haywood.......... 150
Hagany v. Cohnen........... 634
Hagerty v. Nashua Lock Co. .. 555
Hagerty v. Powers........... 508
Haggin v. Haggin............ 82
Hagle v. Hagle.............. 326
Hagy v. Avery.............. 761

‘Hahn v, Cooper. .476, 483, 524, 637

Hahn v. Goings.............. 239
Haight v. Hall............... 200
Haight, In re............... 320
Hail v. Hancock............. 453
Haile v. State............ 684, 687
Haines v. Jescott............ 56
Haines v. West...........--- 664
Hains »v. Jeffel............... 460

Hair v. Hair.....117, 122, 269, 410

Hair v. Richards............. 122
Halbrook v. Brooks.......... 751
Hale v. Gerrish........... 558, 569
Hall ». Butterfield........ 566, 639
Hall, Ex parte.............. 2
Hall v. Green...........-... 452

Hall v. Hall. .267, 336, 445, 474, 478

Hall v. Hollender............ 510
Hall v. Perry.............-.. 650
Hall v. Wright.............. 15
Hallet v. Jenks.............. 718
Hallett v. Hallett............ 120
Halliday v. Miller............ 476
Hallock v. Hallock........... “414
Halloway v. Halloway........ 257
Hall’s Est., In re......... 217, 304
Ham ». Ham................ 728

Hamar v. Medsker........... 249
Hambleton’s Appeal......... 638
Hamiel v. Donnelly.......... 759
Hamilton v. Lomax.......... 593
Hamilton v. Taber........... 638
Hammond ». Corbett. .470, 494, 513
Hammond v. Hammond...... 377
Hamnill v. Augustine......... 240
Hampstead v. Plaistow....... 77
Hampton »v. Hampton........ 405
Hanawalt v. State........... 458
Hancock v. Peaty............ 46
Hand v. Werdner............ 210
Hands v. Slaney............. 550
Handberry v. Handberry..... 335
Handy v. Foley.............. 133
Handy v. Handy............ 389
Hanks v. Deal....... 0.200... 577
Hannah v. Hodgson.......... 501
Hanover v. Turner........... 337
Hanscomb v. Hanscomb...... 427
TABLE OF CASES CITED

[{ References are to sections]

Hanson v. Johnson........... 27
Hard v. Hard.............,. 433
Hardenberg v. Hardenberg.177, 178
Harding v. Alden. .95, 96, 334,

339, 340
Harding v. Cobb............. 249
Harding v. Harding. . .370, 413, 415
Hardy v. Citizens’ Nat. Bank. . 762

Hardy v. Waters............. 578
Hare v. Dean............... 512
Hare vy. Gibson.............. 414
Hargrave v. Hargrave........ 458
Hargroves v. Thompson...... 87
Harker v. Elliott............. 307
Harley v. State.............. 714
Harmer v. Kelling........... 560
Harmon v. Old Colony Ry.
139, 140
Harmon v. Ryan............ 278
Harmond »v. Garland......... 247

Harper v. Archer............ 453

Harper v. Scott.............. 280
Harr v. Schaffer............. 300
Harral v. Harral............. 301
Harran v. Harran............ 426
Harrer v. Wallmer............ 177
Harrigan v. Harrigan......... 664
Harriman v. Queen Ins. Co. ... 259

Harrington’s Est............ 61
Harris v. Cameron...........
Harris v. Harris. .342, 357, 397,

399, 404, 412

Harris v. Taylor.............
Harris v. Webster......... 112, 135
Harrison v. Bishop........... 682
Harrison v. Grady........... 120
Harrison v. Harrison. ..70, 111, 345

Harrison v. Price............ 150
Harrison v. State.......... 94, 455
Harriss v. Harriss............ 416
Harrod v. Harrod......... 693, 694
Harrod v. Myers......... 580, 584
Harshaw v. Merryman....... 121
Hart v. Church.............. 264
Hart v. Hart............. 302, 321

Hart v. Prater............... 551
Hart v. Striebling............ 772
Harteau v. Harteau...... +834, 377
Hartfield v. Roper........... 606
Hartford Ins. Co. v. Kirkpat-
TICK sieht i's a ete inadtinn 28 76
Hartford v. Morris......-.... 68
Hartford v. Palmer.......... 690
Hartley v. Rice.............. 31
Hartman v. McCrary........ 524
Hartpence v. Rogers...... 148, 150
Harvard College ». Amory. 746, 752
Harvey v. Godding.......... 289
Harvey v. Harvey........... 222
Harvey v. Lane.............. 448
Harvey v. Sutton............ 268
Harvie v. Farnie............. 117
Hascall v. Hafford........... 117
Haskell v. Haskell........... 448

Hastings v. Dollarhide . 558, 578, 607
Hatch v. Furgeson........... 731

Hatch v. Hatch.............. 763
Hatch v. Hatch’s Est......... 569
Hathaway v. Hathaway...... 500
Have v. Gibson.............. 123
Haviland v. Halstead......... ll
Hawaii v. Mankichi.......... 711
Hawk v. Harman......... 132, 1383

Hawkins v. Front St. Cable Co. 267
Hawkins v. Hawkins. . .89, 356, 398
Hawkins v. Providence, etc., R.

CO ordain oe nels xara 190, 193
‘Hawley v. Hawley........... 127
Hawley v. Howell......... 678, 680
Hayden v. Pierce............ 201

Hayes v. Jordan.............
Hayes v. Mass. Mut. L. Ins.... 761
Hayes v. Moulton........... 653

Hayes v. Parker............. 598
Haygood v. Harris........... 134
Haynes v. Nowlin........ 144, 145
Hayward v. Baker........... 182
Hayward v. Hayward..... 168, 169,

170, 363
Hazelbaker v. Goodfellow. .... 128
Hazleton v. Douglass......... 771
Head v. Briscoe............. 133
Head v. Harvard College...... 280
lviii

TABLE OF CASES CITED

[References are to sections]

Head v. Stamford............ 180
Heath v. Heath.............. 453
Heath v. Slocum............. 299
Heath v. White.............. 197
Heath v. West.........-...-- 573
Heather, Matter of.......... 739
Heatherwick v. Heatherwick... 332
Heath’s Est., Inre........... 767
Heatley v. Thomas........... 225
Hecht v. Hecht.............. 415
Heckle v. Lurvey............ 133
Hector v. Knox.............. 263
Hedden v. Hedden. . . .397, 399, 400
‘Heermance v. James...... 148, 369
Heilbron v. Heilbron......... 417
Heisen v. Heisen.......... 200, 750
Heisler v. Heisler............ 148
Heistand v. Kunz......... 540, 768
Helden v. Helden............ 448
Helfenstein v. Meredith...... 203
Heller, In re................ 676

Helms v. Chadbourne........ 618

Helms v. Elliott............. 467
Helms v. Franciscus. .230, 231,
232, 233, 320
Helser v. Helser............. 372
Helvey v. Hoover............ 178
Hemmenway v. Towner...... 458
Hemphill v. Halford.......... 646
Hendershott ». Henry........ 183
Henderson v. Ford........... 314
Henderson v. Fox............ 578
Henderson v. Henderson...... 320
Henderson v. James.......... 707
Henderson v. McGregor...... 641
Heninger v. Heninger........ 422
Henley v. Gore.............. 619
Henley v. Robb............. 767
Henneger v. Lomas....... 328, 519
Henry v. Root........... 570, 586
Hensinger v. Dyer........... 76
Hepburn v. Dubois.......... 249
Hepburn v. Warner.......... 225
Hermann v. Charlesworth. .... 31
Hernandez v. Thomas. 480, 481, 724
Herold v. Herold............ 367
Herrick ». R. R. Co...... 2.00 717

Herzog v. Weiler............. 287
Heth v. Coke. ........22.065. 218
Hetherington v. Graham...... 213
Hewett v. Long...........--- 448
Hewlett v. George........... 484
Heyl v. Goelz..........----- 763
Hibbard v. Bridges..........- 629
Hibbette v. Bains...........- 481
Hibblethwait v. Hepworth.... 85
Hibbs v. Union Cent. Life Ins.

Coin ised Seen eee ees 216
Hibernian Savings Institution

Os Dubs sds as eee e285 ee 244

Hicks v. Blakeman........... 759
Hicks v. Hicks.............. 386
Hicks v. Smith.............. 460
Hides v. Hides. .’............ 42
Higbee v. Higbee............ 330

Higginbotham v. Cornwall.... 208
Higgins v. MeNally.......... 3

Higgins v. Minagan.......... 487
Higgins v. Peltzer............ 298
Higham v. Janosdol.......... 148
Highberger »v. Stiffler......... 501
Hightower v. Maull.......... 748
Higley v. Bostwick....... ee. 458
Hilbish v. Hattle............ 320
Hiles v. Fisher........... 177, 178
Hillv. Arbon................ 551
Hill v. Hill... 2.2.2... 232, 320, 322
Hill ». Mitchell... 2.2.2.2... 193
Hillv. Nelms................ 582
Hill v. Saunders............. 175
Hill ». Sewald............ 310, 311
Hill v. West... 2.2... 0.0.0.0. 250
Hill ». Wilson. .............. 526
Hills ». Hills.............0.. 96
Hills v. State........... 95, 98, 159
Hillyer v. Bennett........... 566
Hilton v. Guyot............. 717
Hilton v. Hilton............. 504
Hilton v. Roylance...... 80, 82, £9
Hilton v. Shepherd........... 571
Hindman’s Appeal............ 3
Hinds v. Hinds.......... 335, 2}
Hinds, In re.............. 69, 171
Hinds ». Jones.............. 133
TABLE OF CASES CITED

[References are to sections]

Hinkle v. State............-- 485
Hinley v. Margaritz.......... 560
Hinsey v. Hinsey............ 264
Hiram v. Pierce............. 92
Hisle v. Hisle................ 779
Hite v. Hite................. 413
Hixon v. Cuff............... 708
Hoag, In fe. ccc cc awone ns 677
Hoard v. Peck..........-- 148, 151
Hobbs v. Hobbs.........- 131, 185
Hobbs v. Harlan.......... 745, 751
Hoboken v. Goodman........ 2
Hocaaday v. Sallee........... 172
Hocker v. Woods......... 735, 774
Hodges v. Hodges..........-- 400
Hoffman v. Hoffman...... 392, 395
Hogan »v. Pacific Mills........ 525
Hogan v. Roche...........-. 651
Hogann v. Cregan..........- 526
Hoggins v. Coad...........-- 150
Holbrook v. Finney.......... 206
Holcomb v. Holcomb. .404, 612, 672
Holden v. Curry........-- 731, 772
Holden v. Holden............ 359
Holdridge ». Mendenhall... .. 514
Hole v. Robbins............. 467
Holleman v. Hayward........ 151
Holliday v. Griffith.......... 20
Holliday v. Hively........... 223
Hollinger v. Mobile Branch
Batts sicwscsoane sess aneaten dies 295
Hollingsworth v. Flint........ 249
Hollingsworth v. Swedenberg
470, 493
Hollis v. Wells...........---. 526
Hollopeter, In re........-.- 39, 92
Holloway v. Connor........-- 231
Holloway v. Holloway........ 383
Holman v. Perry.........---- 306
Holmes v. Carrier..........-- 357
Holmes v. Blogg.........- 554, 566
Holmes v. Gilman..........- 242
Holmes v. Holmes.......- 144, 372
Holmes v. Rice.........----- 559
Holmes v. State...........-- 613
Holst v. State............--- 612
Holston v. Holston........... 372

Holt v. Baldwin.......,..491, 493

Holt v. Brien............-00. 120
Holt v. Holt...............- 378
Holt ». Ward Clarencieux..... 559
Holtz v. Dick. ............ 92, 148
Holyoke v. Holyoke.......... 364
Holyoke v. Jackson.......... 268
Homan v. Earle............- 18
Homeopathic Mut. Life Ins.

Co. v. Marshall............ 225
Honner v. Morton........... 171
Honnett v. Honnett.........- 76
Hood v. Hood............ 117, 214
Hood »v. State.............55 340
Hooker ». Phillips........... 27
Hooks v. Lee.....-..--0 2000+ 201
Hooper v. Rideout........... 762

Hopkins v. Atlantic, etc., R. R. 514

Hopkins, Ex parte........... 479
Hopkins v. Gentry........-.. 719
Hopkins v. Hopkins....... 335, 426
Hopkins v. Joyce.........--- 300
Hopkins v. Wampler......... 667
Hopps v. People............- 660
Hopt v. State..........--... 686
Horgan v. Pacific Mills....... 513
Horne v. Horne...........--- 392
Horner v. Marshall.......... 656
Horner v. Thwing............ 599
Horner v. Yance............: 165
Horning v. Horning.......... 448
Hornish v. People...........- 670
Horton ». Dewey............ 287
Hosler v. Beard...........+-- 642
Hospital v. Gatte..........-. 727
Hotchkiss v. Hodge.......... 11
Hotemav. U.S. ........-.05. 659
Houghton v. Houghton. . . .272, 273
Houlison v. Smith........... 122
House v. Alexander....... 551, 554
House v. Fowle...........+-. 215
House, In re........-.20-00- 673
House of Refuge v. Ryan...... 628
Hove v. Hove..........00005 48
Hoverson v. Noker..........- 508
Hovey v. Chase.........-.-+ 641
Hovey v. Hobson..... 642, 643, 647
Hovey v. Page...........+-: 26
Howard v. Bryant........... 171
lx TABLE OF CASES CITED

[References are to sections]

Howard v. Coke............. 651
Howard v. Digby............ 228
Howard v. Howard.......... 634
Howard v. Napier........... 231
Howard v. Menafee.......... 190
Howard v. Moffatt........... 230
Howard v. Simpkins......... 551
Howard v. Tucker........... 763
Howard v. Whetstone Town-
BID saved dad aa eee 126
Howarth v. Wannser......... 253
Howe v. White.............. 772
Howell v. Howell............ 683
Howe’s Est................. 79
Howett v. Hale.............. 298
Hoyt v. Casey...........---- 549
Hoyt v. Sprague............. 737
Hubbard v. Cummings....... 573
Hubbard v. Hubbard......... 389
Hubbard v. Mason City...... 683
Hubble v. Fogartie........... 132
Huchting v. Engel........... 601
Hudson v. Haskins........... 522
Hudson v. Sholem........... 255
Huff v. Ames...............- 606

Hughes v. Detroit, etc., R. R.. 612
Hughes v. Jones............. 644
Hughes v. Knowlton......... 460
Hughes’ Memoirs, Appeal of.. 752

Hughes v. Railroad Co....... 612
Huke v. Huke............... 488
Hulett v. Carey........ 85, 88, 104
Huling v. Huling............ 148
Hull v. Connally............. 549
Hull v. Louth............... 647
Hulme v. Tenant......... 224, 225
Hume v. Hopkins............ 178
Humphrey v. Breisson........ 760
Humphrey v. Douglas........ 593
Humphrey v. Pope........... 144
Humphries v. Davis.......... 467
Hunts Cary. sos. sea ntaadaes 752
Hungerford v. Hungerford.... 320
Hunnicutt v. Summey........ 262
Hunsucker v. Elmore......... 590
Hunt, Appellant......... 752, 753
Hunt v. Booth.............. 223
Hunt v. Hayes.............. 124

Hunt v. Hunt. ..117, 273, 334,

337, 349, 483
Hunt v. Insley.............. 731
Hunt v. Massey............- 567
Hunt v. State............... 156

Hunt v. Thompson. . .488, 492, 493

Hunter’s Appeal............ 325
Hunter v. Baxter............ 300
Hunter v. Boucher........... 122
Hunter v. Hunter............ 417
Huntley v. Huntley.......... 402
Huntoon v. Hazelton......... 472
Hunt’s Appeal.............. 107
Hurlburt’s Est., In re........ 458
Hurlbut v. State............. 774
Hurt v. Long.............--. 757
Hurtzig v. Hurtzig........... 443
Huson v. Wallace...........- 787
Hussey v. Ryan............. 509
Hutcheraft v. Shrout......... 773
Hutcheson v. Peck........... 148
Hutching v. Engel........... 593
Hutchins v. Dresser.......... 748
Hutchins v. Huggins......... 263
Hutchins v. Johnson......... 761

Hutchins v. Kimmell. . .85, 87,
95, 108, 110
Hutchinson v. Hutchinson.... 652

Hutton v. State............. 537
Hutton v. Williams.......... 748
Hyatt v. Adams............. 153
Hyde v. Hyde............... 80
Hyman ». Cain.............. 544
Hyman v. Harding........... 255

Hynes v. McDermott. .87, 105, 106
Hysong v. School Dist......... 533

Igglesden, Matter of......... 498
Illinois Cent. Ry. Co. v. Head 748
Illinois Land Co. ». Bonner.... 458
Imboden »v. Trust Co......... 82
Imlay v. Huntington.........
Imperial Loan Co. v. Stone.... 642

Indiana v. Gobin............ 708
Indianapolis Chair Mfg. Co. ».
WilCOXises caida vet wo nearsades 576
Indianapolis v. Kingsbury. ... 750
Ingalls ». Campbell.......... 724
TABLE OF CASES CITED lxi

[References are to sections]

Ingalls v. State.............. 684
Ingersoll v. Jones............ 525
Ingram v. State............. 627
In re Agar-Ellis....... 480, 481, 486
In re Alexander.............. 203
In re Allis’s Est.............. 753
In re Baker................ . 675
In re Bellamy. .............. 173
In re Besondy............ 495, 736
In re Bethell................ 80
In re Blakely’s Will.......... 631
In re Boot... ............... 446
In re Brown’s Est............ 304
In re Brush’s Will............ 652
In re Camille................ 720
In re Chace..........4+ 98, 99, 115
In re Christensen............ 628
In re Christianson........... 431
In re Cline. .............-... 652
In re Cochrane. ............. 115
In re D’Anna................ 480
In re D’Avignon............. 682
Inre Dean.................. 775
In re De Biddulph’s Trusts.... 694
In re Delano... .............. 447
In re Deming................ 383
In re Desilver.. ............. 646
In re Donnelly............... 702
In re Doyle. ................ 462
In re Eichelberger’s Hst....... 506
In re Eikerenkotter .......... 731
In re Elliott’s Est............ 504
In re Ellis’s Est....... 336, 344, 432
In re Evans............---4- 487
In re Fenton’s Will........... 654
In ré Winns «26:2 23eex sis ew ne 480
In re Florance............... 117
In re Gable.. ............... 737
In re Gilmore’s Est. ......... 268
In re Goodenough........ 479, 480
In re Goodman’s Trusts...... 457
In re Goods of Piercy......... 696
In re Grobes’s Estate......... 32
In re Guardianship of Klein... 726
In re Haight................ 320
In re Hall’s Est. ......... 217, 304
In re Harrall................ 190
In re Harris ................ 635

In re Heath’s Est. ........... 767
In re Hiller.................. 676
In re Hinds.............. 169, 171
In re Hoag................0. 677
In re Hollopeter............ 87, 92
In re House..............4-. 673
In re Hurlburt’s Est. ........ 458
In re Janes. ..........020-008 675
In re Jessup’s Est. ........... 458
In re Jones’s Est. ............ 304
In re Kilgore................ 2
In re King........... Gein ae 782
In re Klein............... 726, 782
In re Knowack.............. 629
In re Law’s Est.............. 753
In re Le Claire............... 428
In re Lee’s Will.............. 682
In re Leonard. .............. 2
In re Lewis ...........+.+--- 652
In re Lockwood.............. 2
In re Lynch................. 676
In re Mackintosh............ 734
In re Maher’s Est............ 90
In re Mansfield.............. 785
In re McCormick............ 465
In re McGrath. .......... 730, 785
In re McLaughlin’s Est... ... 87, 92
In re Moore.............. 320, 506
In re Moran...............-- 466
In re Morgan............ 446, 447
In re Natick ................ 58
In re Nerac.............005. 702
In re Newman............... 467
In re O’Connell.............. 724
In re O'Neal... 2.00.0. . eo 480
In re Payne’s Appeal......... 328
In re Phene’s Trusts.......... 109
In re Pierce...............0. 763
In re Popejoy............... 410
In re Reciprocity Bank....... 169
In re Scarrett........ 479, 480, 481
In re Sharp.............. 628, 629
In re Slinger’s Will........... 654
‘In re Smith’s Est. ........... 67
In re Smith’s Will............ 652
In re Soltykoff............... 578
In re Stittgen ..........0.0.. 628
In re Thaw .............405. 662
Ix

TABLE OF CASES CITED

[References are to sections]

In re Thomas................ 2
In re Thorne.. .............. 464
In re Tootal’s Trusts......... 4
In re Turner.. .............. 730
In re Van Houten............ 739
In re Vance................. 483
In re Wagner’s Hst........... 305
In re Walling................ 772
In re Wardell’s Est........... 460
In re Weis ss 623252 24 ace ees 676
In re Weringer............... 129
In re White................. 652
In re William’s Est........... 464
In re Wilson ................ 737
In re Wong Kim Ark......... 721
In re Wong Young Quy....... 716
Irvine v. Irvine....... 571, 579, 580

582, 584
Irving v. Ford......... 59, 457, 465
Isaacs v. Boyd.............. 738
Isbell v. N. Y., etc., R. R. Co... 683
Israell v. Rodin.............. 302
Ives v. MeNicoll.......... 456, 457
J.F.C.v.M.E.............. 449
I ota Oe eee eee rere 48, 49
Jackson v. Fitzsimmons....... 714
Jackson v. Goodell. .......... 720
Jackson v. Hill............... 231
Jackson v. Hobhouse......... 224
Jackson v. Hocke............ 460
Jackson ». Jackson. . .195, 280,

460, 504
Jackson v. King .......... 641, 668
Jackson v. McAlily........... 222
Jackson v. McConnell. ....... 173
Jackson v. Moore............ 467
Jackson v. Mull.............. 493
Jackson v. Stevens........... 249
Jackson v. Sublet............ 248
Jackson v. Von Ziedlitz....... 692
Jackson v. Winne........... 75, 89
Jackubke v. Jackubke........ 382
Jacobson v. Anderson... .. ,.. 775
James v. Cleghorn........... 487

James v, James........... 371, 377
James v. Taylor............. 229
Jamney v. Sprigg............

Janes, Inre........---00eee 675
Jarvais v. Moe..........++.- 258
Jarvis v. Jarvis.........--.5+ 349
Jaques v. M. E. Church. . .224,
225, 227
Jaques v. Swasey............ 505
Jeanes v. Davis..........---- 239
Jefferson v. Jefferson......... 395
Jefford v. Ringold............ 559
Jenkins v. Board........-...- 532
Jenkins v. Clement........... 289
Jenkins v. Jenkins........ 206, 372
Jenkins v. Morris............ 646
Jenkins v. Tucker............ 129
Jenne v. Jenne.............. 347
Jenner v. Walker............ 551

Jenness v. Emerson....... 470, 494
Jenness v. Jenness. . . .335, 336, 359

Jenness v. Smith............. 759
Jennings v. Jennings......... 445
Jennings v. Randall....... 595, 599
Jerdee v. Furbush........ 256, 263
Jervis v. Jervis.............. 191
Jervoise v. Silk.............. 495
Jessup’s Est., In re.......... 458
Jewell v. Colby........... 655, 656
Jewell v. Jewell.............. 79
Jewell v. Porter.............. 282
Jewett v. Jewett............. 378
Jewson v. Moulson........... 230
Joist v. Williams.......... 678, 680
Johns v. Fritchey............ 678
Johnson v. Allen...... 122, 148, 150
Johnson v. Baltimore, etc., R.

(GO ae ay aetna em ent at 139
Johnson v. Coleman:...... 432, 745
Johnson v. Cummins...... 225, 248
Johnson v. Disbrow....... 137, 150
Johnson v. Gallagher...... 224, 225
Johnson v. Glidden.......... 508
Johnson vy. Harmon.......... 678
Johnson v. Hart............. 177
Johnson v. Hicks............ 772
Johnson v. Hunt............. 32
Johnson v. Iss............... 11
Johnson v. Jenkins.......... 28, 30

Johnson v. Johnson. .. .80, 98, 106,
287, 355, 395, 405, 443, 734
TABLE OF CASES CITED

[References are to sections]

Johnson v. Jouchert.......... 284
Johnson v. Lawson........... 458
Johnson v. Line............. 546
Johnson v. Lyons............ 549
Johnson, Matter of....... 729, 730
Johnson v. Miller............ 208
Johnson v. N. W. Mut. Life

Ins: Coves 40% se nme exons 547, 566
Johnson v. Pye.............. 597
Johnson v. State.......... 485, 661
Johnson v. Terry..... 448, 464, 479
Johnson v. Vail.............. 293
Johnson v. Waterhouse....... 618

Johnstone v. Beattie. .483, 737, 743

Johnstone v. Marks.......... 549
Jolly v. Rees................ 120
Jones v. Clifton.......... 222, 289
Jones v. Cody..........2.... 537
Jones v. Coffey.............. 201
Jones v.Com.............44. 58
Jones’s Est., In re........... 304
Jones v. Hayes.............. 773

Jones v. Jones. . .241, 330, 338,
347, 349, 357, 372, 425, 458

Jones v. Leyman............. 19
Jones y. Monson.......... 148, 156
Jones v. Parker.............. 208
Jones v. Payne.............. 577
Jones v. Phoenix Bank........ 572
Jones v. Semple............. 679
Jones v. Tevis............... 529
Jones v. Valentine’s School of
Telegraphy............... 545
Jordan v. Clark.............. 280
Jordan v. Coffield......... 546, 550
Jordan v. Jordan............ 167
Jordan v. Westerman......... 418
Jordan v. Wright............ 491
Joyce v. J. I. Case Threshing
Mach. Co.............-04. 262
Joyce v. McAvoy............ 620
Joyner v. Joyner............. 340
Judge of Probate v. Chamber-
TRU se isin sos Mi aeeceenn se 170

Judge of Probate v. Mathis. ... 753
Judge of Probate v. Toothaker 772
Judkins v. Walker........... 555
Judson v. Walker............

Judy v. Sterritt.............. ll
Julier v. Julier...............

Ones aihotine wees uenttes 604
Kaggan v. Holmes........... 255
Kahalan v. Monroe.......... 301
Kantorowitz v. Prather....... 225
Karl v. Juniata Co............ 697

Karow v. Continental Ins. Co.. 655
Karren v. Karren......... 432, 448

Kattleman v. Guthries’s Est... 775
Kavanaugh v. O’Niel......... 248
Keading v. Joachmasthal..... 258
Keagy v. Trout.............. 169
Keane v. Boycott............ 559
Keats v. Keats........... 390, 393
Keegan v. Geraghty....... 465, 467
Keeler v. Keeler.....- Nerkehote 379
Keen v. Coleman............ 133
Keen v. Hartman............ 133
Keenan v. Com........... 686, 687
Keil v. Healey............ 579, 582
Kelch v. State..............- 670
Keleher v. Putnam........... 633
Keller v. Keller.............. 435
Kelley v. Davis...... 488, 491, 493
Kelley v. Grundy............ 239
Kelley v. Kelley.......... 118, 357
Kelley v. McGrath........... 277
Kelley v. N. Y., ete., R. Co.... 140
Kelley v. Owen.............. 711
Kelley v. Petitioner.......... 629
Kelley v. Proctor............ 158
Kelley v. Reily.......... 11, 26, 29
Kelley v. Renfro............ 19, 24
Kelley v. Scott.............. 54
Kelley v. Smith.............. 728
Kelley v. Sprout...... 476, 590, 592
Kelley v. State.............. 458
Kellett v. Robie............. 24
Kellogg v. Stoddard..... Serates,§ “125
Kelsey ». Green.......... 737, 743
Kemp v. Downham.......... 122
Kemp ». Folsom............. 300
Kendall v. May............. 645
Kendall v. Powers........... 262
Kendrick v. Neisez........... 570
lxiv

TABLE OF CASES CITED

[References are to sections]

Kenebel v. Scrafton.......... 302
Kenna v. Brockhaus......... 712
Kennedy v. Doyle........... 104
Kennedy v. Gaines........... 758
Kennedy v. Johnson......... 638

Kennedy v. Kennedy... ... 372, 392

Kennedy, Matter of......... 782
Kennedy v. Shea............ 526
Kenney v. Baltimore & Ohio
Rye CO. esa saetses canes 529
Kenney v. Laughenouer...... 525
Kenney v. Udall.......... 230, 231
Kenny v. People............. 689

Kenton Ins. Co. v. McClellan. . 312

Kentzler v. Kentzler...... 446, 448
Kenyon v. Farris............ 121
Kenyon v. Saunders.......... 702
Keppler v. Elser............. 108
Kern v. Field..............-. 336
Kern v. Kern..............-. 42
Kerner v. McDonald......... 178
Kerrigan v. Kerrigan......... 407
Kershaw v. Kelsey........... 718
Kessler’s Est............. 276, 280
Kester v. Hill............... 772
Ketchem v. Marshland....... 493
Kettelas v. Gardner.......... 784
Kettleschlager v. Ferrick... ... 289
Kevan v. Waller............. 735

Keys v. Keys.............. 46, 69

Kibby v. Rucker............. 108
Kierstad v. Orange, etc., Co.... 718
Kilgore, In re..............4 2
Kilgore v. Jordan............ 598
Kilgore v. Rich........... 546, 552
Kilpatrick’s Appeal.......... 751
Kimball v. Reding........... 754
Kimberly, Appeal of......... 652
King v: Barbour............. 575
King v. Brewer.............. 69
King v. Cutts............... 748
King v. Davis............... 237
King, In re................. 782
King v. Jamieson............ 560
King v. King.......... 31, 505, 784
King v. McCampbell......... 295
King v. Mittalberger......... 246
King v. State................ 670

Kingsley v. Smith............ 200
Kinnear v. Kinnear.......... 432
Kinney v. Com............--- 99
Kirby v. Miller......... vee. 224
Kirby v. Turner............- 774
Kirchman v. Cocoran........ 287
Kirk v. Christrand........... 124
Kirkland v. Whatten......... 744

Kirkpatrick v. Buford..... 222, 238
Kirkpatrick v. Kirkpatrick. ... 372

Kirkpatrick v. Lockhart. ..... 511
Kirkwall v. Kirkwall......... 392
Kirkwood v. Gordon......... 650
Kitchen v. Chapin........... 244
Kittridge v. Batton.......... 763
Klein, Guardianship of....... 726
Klein, Inre................. 782
Klein v. Klein............... 448

Kline v. Kline............ 341, 446
Klipfel v. Klipfel............
Klix v. Nieman..............
Knapp v. Knapp..... 423, 424, 427

Kneale v. Kneale............ 441
Knepper v. Glenn............ 775
Knight v. Thayer............ 250
Knight v. West Jersey R. Co... 155

Knight v. Wilcox......... 527, 528

Knott v. Fidyman........... 678
Knott v. Stearns............. 453
Knowack, In re............. 629
Knowing v. Manly........ 133, 183
Knowles v. People........... 158
Ixnox v. Kearns............. 773

Kobogum v. Jackson Iron Co.. 80

Kocher v. Cornell............ 226
Koerber v. Patek............ 130
Koonce v. Wallace....... 39, 40, 41
Kopeyzinski v. State......... 156
KXosminsky v. Goldberg....... 133
Kraft v. Wickey............. 737
Kraxberger v. Rotier......... 24
Krebs v. O’Grady......... 184, 311

Kremelberg v. Kremelberg.... 448

Kretz v. Kretz.............. 351
Krieger v. Crochu............ 249
Krieger v. Day.............. 174
Kriz v. Peege........ 237, 244, 245

Kxroessin v. Keller............ 145
TABLE OF CASES CITED

{References are to sections]

Krumm »v. Schoonmaker. . .655, 656

Kubic », Zemke............. 493
Kugler v. Prien.............. 764
Kuhn v. Ogilvie............. 252
Kuhn v. Stansfield........... 185
Kujek v. Goldman........... 68
Kumba »v. Gilliam........... 508
Kunze v. Kunze............. 427

Kurtz v. Frank... 0.0.0.2... 11, 24
Kurtz v. W. Duluth Land Co... 731

Kyle v. Barnett............. 754
Kyle ». Conrad....2......... 504
Kyne ». Wilmington, etc., R.

COs 8 bos a ESSE REESE IANS 606
Lackman ». Wood........... 587
Lacoste v. Gudroz........... 76
Lacy v. Pixler............... 582
La Donne ». Petitioner....... 634
Lady Arundel v. Phipps...... 287
Lafferty v. Third Ave. Ry.

©: sevhey sivas edawee seat 606
Lafitte v. Lawton............ 274
Lahey v. Knott.............. 19
Laird’s Appeal.............. 453
Lakin v. Lakin.............. 213
Lamar v. Micou..... 483, 676, 732,

743, 744, 760
Lamb v. Belden............. 180
Lamb »v. Tailor.............. 524
Lambert v. Kennery......... 264

Lambert v. Lambert...... 448, 449
Lamore v. Crown Point Iron Co. 604

L’Amoreaux v. Crosby....... 676
Lamprey v. Nudd............ 666
Lampriere v. Lange.......... 597
Lamson v. Varnum.......... 491
Lancaster County Bank ».
Moorens ics soe pees eeesers 642
Lanctot v. State............. 110
Land v. Land............... 107
Lander v. Seaver......... 534, 535
Lane v. Bishop.............. 316
Lane v. Bryant.............. 135
Lane v. Dayton............. 566
Lane v. Ironmonger.......... 120

Lane, State ex rel. v. Ballinger 738
Langdon v. Clayson......, ++, 586

5

Lange v. Geiser.............. 263
Lanham »v. Lanham.......... 100
Lanier v. Lanier............. 367
Lansing v. Hayes............ 304
Lansing v. Mich. Cent. R. R.
Colmes nee a vareee 558
Lapsley v. Grierson.......... 107
La Riviere v. La Riviere...... 80
Larkin, State ex rel. v. Ryan... 675
Larsen v. Johnson........... 272
Larson v. Butts.............. 263
Larson v. Chase............. 130
Latourette ». Williams....... 171
Lattimore v. Simmons........ 26
Laughlin v. Eaton........... 137
Laurence v. Laurence........ 110
Lavery v. Cook...... 523, 526, 528
Law 0. Comie. eicaccvccew eta sens 624
Law v. Smith............... 505
Lawes v. Lumpkin........... 173
Lawford v. Davis............ 96
Lawrence v. Cook....... 16, 27, 28
Lawrence v. McArter......... 607

Lawrence ». Nelson. . .482, 434, 448

Law’s Est., In re............ 753
Lawson v. Lovejoy........... 571
Lawson v. Shortwell.......... 328
Lawyer v. Fritcher........... 526
Lea py Leas vies sansa oes eas 409
Lea v. Tucker............... 146
Leach v. Burr... ........-... 669
Leach v. Leach.............. 384
Leach v. Rains.............. 282
Leache v. State.............. 661
Leakey v. Manpin.. . .167, 168, 169
Leaman v. Thompson....... 11, 18
Leavell v. Leavell............ 148
Leavett v. Cruger............ 295
Leavett v. Cutler............ 29
Leavett v. Jones............. 244
Leavett v. Leavett......... 70, 404
Leavitt ». Lamprey.......... 210
Le Claire, Inre.............. 428
Ledwith v. Union Trust Co.... 783
Lee v. Hammond......... 146, 399
Khee@: Veena escaaeis soe sae eos 731
Lee v. Lanahan.............. 182
Lee vp. Lee,.....1+,+,444, 652, 747
xvi

TABLE OF CASES CITED

[References are to sections]

Lee v. Muggeridge........... 183
Lee v. Prieaux............5-. 222
Lee v. Savannah Guano Co.... 240
Lee v. State............5-.. 82
Lee v. Winston.............. 247
Leeds ». Cook.............. 23, 28
Lee’s Appeal..............-. 728
Lee’s Will, Inre............. 682

Leete v. State Bank. . .236, 237, 300

Lefels v. Sugg............... 551
Leipe v. Hisenlerd........ 524, 528
Leith v. Leith............ 337, 352
Le Mesurier v. Le Mesurier.... 343
Lemmin ». Lorfield.......... 480
Lemmon v. Beeman....... 565, 573
Lem Moon Sing v. United
BLates sees Aiea: tees demas os 713
Lenfers v. Henke............ 207
Lenning v. Lenning.......... 442
Lent v. Howard............. 752
Leonard v. Braswell....... 101, 455
Leonard ». Columbia, etc., Co. 155
Leonard v. Leonard ...... 383, 646
Leonard v. Rogan............ 247
Leonard v. Whetstone........ 17
Leslie v. Leslie.............. 415
Leslie v. Lewiston............ 606
Lessee v. Hoge.............. 668
Letters v. Cady.............. 79
Leucker v. Steileu........ 526, 527
Levi v. Earl................. 246
Levy v. McCartee........... 714
Levystein v. O’Brien......... 618
Lewis v. Arbuckle............ 641
Lewis v. Coxe............... 210
Lewis v. Howell............. 252
Lewis, Inre...............4. 652
Lewis v. Jones............... 682
Lewis v. Lewis...... 42, 69, 71, 373
Lewis v. Smith.............. 216
Lewis v. State........ 490, 527, 708
Lewis, Succession of......... 483
Lewis». Yale................ 225
Lewsome v. Lewsome........ 395
Libbey v. Berry............. 131
Lichfield v. Cudworth........ 175
Lichter ». Thiers............. 468
Lies ». De Diablar........... 256

Lillard v. Turner..........-. 225
Lilley v. Waggoner........... 646
Lillie v. Lillie. .............-- 378
Lincoln v. Madans........... 163
Lindley v. Cross............. 247
Lindsay v. Brewer..........- 265
Lindsey v. Danville.......... 138
Lindsley v. McIver.......... 504
Lingen v. Lingen............ 457
Lingo v. State.............-. 162
Linkmeyer v. Brandt......... 649
Linton v. Walker............ 469
Lippard v. Troutman......... 297
Lippincott v. Mitchell........ 223
Liston v. Brown...........-+ 124
Litowitch v. Litowitch........ 64
Little v». Duncan............. 569
Littlefield v. Rice............ 161
Lively v. Paschal......... we. 215
Liverpool Adelphi Assn. v. Fair-
Whurstcag es gabe see ees 133, 183
Livingston ». Hammond...... 494
Livingston v. Kiersted........ 672

Livingston v. Livingston. ..423, 427

Lloyd v. Lee................ 182
Lloyd ». Williams............ 232
Lobdell v. Allen.......... 589, 590
Lochner v. New York........ 2
Lock v. Dean............... 633
Locke v. McPherson......... 301
Locke v. Smith.............. 545
Lockenour v. Sides........... 632
Lockridge v. Lockridge. .. .420, 421
Lockwood, Inre............. 2
Lockwood v. Lockwood. . . .145, 358
Lockwood v. Robbins........ 556
Lockyear »v. Sinclair.......... 82
Lodge v. State... .........00. 703
Logan v. Gardner............ 541
Logan v. United States....... 703
Lohner v. Coldwell............ 28
Loker v. Gerald.......... 117, 338
Lombard v. Morse........... 291
Londonderry v. Chester...... 93
Long v. Barnes........... 178, 236
Long v. Booe.............00. 150
Long v. Hewett.......... 464, 465

Long v. Long...., 70, 357, 757, 764
TABLE OF CASES CITED

[References are to sections]

Long v. Morrison............
Longnecker ». Greenswade.... 619

Longworth v. Hockmore...... 123
Lonstorf v. Lonstorf.......... 143
Loomis v. Bush.............. 249
Loose v. State............... 626
Lord v. Parker.............. 316
Lord v. State................ 108
Lorenz v. Lorenz.......... 51, 405
Loring v. Thorndyke......... 96
Losey v. Stanley............. 757
Lott v. Sweet............2.. 633
Love v. Logan.............4. 748
Love v. Masoner......... 520, 527
Love v. Moynahan........... 184
Lovell v. Beauchamp......... 575

Lovell v. House of Good Shep-

753
Lovenden v. Lovenden. 416, 442, 443

Lovering v. Lovering......... 400
Loving v. Bacon............. 773
Loving, Ex parte............ 628

Louisville Coffin Co. v. Stokes 312
Louisville, etc., R. R. Co. ».

Goodykoontz.......... 510, 741
Low »v. Anderson............ 263
Lowe v. Fox............-..- 297
Lowe v. Griffith............. 554
Lowe v. Linklear............ 555
Lowe v. Peers............... 31
Lowe v. State............... 660
Lowell v. Daniels......... 176, 183
Lowery v. Cate.............. 596
Lozear v. Shields............ 641
Lucas v. Brooks............. 163
Luck ». Luck. ............... 451
Ludblom »v. Sontiailie........ 150
Ludington v. Patton......... 216
Ludlam v. Ludlam........... 712
Luhrs v. Eimer.............. 714
Luhrs v. Hancock............ 646
Lunay v. Vantyne........... 467
Lupie v. Winans............. 464
Lyle v. Lyle................- 448
Lyman v. Conkey............ 758
Lynch v. Clarke............. 712

Lynch v. Dodge.......... 679, 691

Lynch, In re................ 676
Lynch v. Knight............. 144
Lynch v. Lynch.......... 367, 370
Lynch v. Moser............. 251
Lynch v. Smith.............. 605
Lynde v. Lynde...... 338, 342, 427
Lynde v. McGregor.......... 175
Lyndon v. Lyndon........... 68
Lynn v. Hockaday........... 464
Lynn v. Kent..........-..-. 608
Lynnaird v. Leslie........... 701
Lyon »v. Lyon............... 71
Lyster v. Lyster.......... 364, 373
Maas v. Territory............ 670
Mabin v. Webster........... 28
Macaulay v. Phillips......... 230
Machar v. Burroughs......... 225
Machen v. Machen.......... 171

Mack v. Handy............. 443
Mackenna »v. Fidelity Trust Co. 219

Mackintosh, In re........... 734
Maclay v. Equitable Life Ins.

DOGks ees oes aw wees 760, 761
Maclay v. Love.............. 236
Maconnehey »v. State......... 689
Maddox v. Maddox....... 357, 375
Maddox »v. Simmons......... 631
Madigan v. Walsh........... 206
Madison Co. v. Johnson...... 772
Mad River R. Co. v. Fulton... 160
Magahay v. Magahay........ 674
Magee v. Holland............ 529
Magee v. Toland............ 167
Maggill ». McEvoy.......... 784
Magie v. Welsh.............. 552
Magnac v. Thompson..... 270, 278
Magrath v. Magrath...... 366, 369
Maguire v. Maguire.......... 111
Maher’s Est., In re.......... 90
Maher v. Title.............. 432
Main v. Scholl............... 244
Major v. Holmes............ 243
Male v. Roberts............. 540
Mallett v. Parham........... 246
Mallory v. Mallory.......... 16
Malone v. Malone........... 373
Maltby v. Harwood.......... 590
TABLE OF CASES CITED

[References are to sections]

Manby ». Scott...... 120, 122, 124
Manchester v. Hough........ 176
Mandelbaum ». McDonald.... 31

Mangam ». Brooklyn R. R. Co. 606
Mangles v. Mangles.......... 414
Manion v. Ohio Valley Ry. Co. 761
Manley’s Exrs. v. Staples. .651, 679

Mann ». Higgins............. 172
Mann »v. Jackson............ 31
Manning v. Johnson......... 564
Manning »v. Wells............ 493

Mansfield v. Gordon...... 559, 582

Mansfield, In re............. 785
Manson ». Felton............ 691
Manz ». Oakley............. 774
Marble Co. v. Ripley......... 617

March, Ex parte............ 270

Marcus v. Rovinsky.......... 135
Mardee v. Mardee........... 171
Markover v. Kruss........ 466, 467
Marks v. Crume............. 74
Marks v. Marks........... 90, 483
Markwell v. Pereles.......... 480

Marlborough v. Marlborough. . 321

Marlett ». Wilson............ 461
Marlow ». Pitfield........... 552
Marquat v. Marquat......... 179
Marquess v. La Baw...... 740, 745
Marselis v. Seaman.......... 311
Marsellis v. Thalhimer....... 196
Marshall v. Marshall...... 164, 395
Marshall v. Morris........ 270, 278
Marshall v. Oakes........... 133
Marshall v. Perkins.......... 121

Marshall vy. Reams........ 462, 480

Marshall v. Rutton.......... 184
Marshall v. State............ 686
Marston v. Dresen........... 300
Marston v. Jenness.......... 461
Marston v. Norton........... 305
Marston v. Roc.............. 302
Marthienke v. Grotthaus..... 744
Martin v. Dwelley........... 176

Martin ». Harrington..... 251, 263
Martin v. Martin... .. 185, 218, 424

Martin v. Payne............. 523
Martin v. Robson......... 135, 239
Martin v. State.............. 624

Martin v. Tally............-. 729
Marvin v. Marvin.........+. 75
Mason »v. Fuller............. 301
Mason v. Homer............- 301
Mason v. Mason...... 66, 218, 764
Mason v. MecNeil............ 167
Mason v. Ship Blaireau....... 590
Massachusetts General Hospi-

tal v. Fairbanks........... 762
Massey v. Stimmel........... 338
Masten v. Masten........... 443
Matchin v. Matchin...... 351, 443
Mathews v. Cowan.......... 597
Matter of Forsyth........... 588
Matter of Rose.............. 785
Matthewman’s Case...... 225, 316
Matthews v. Ry. Co.. ........ 510
Matthews v. Terry........... 484

Matthewson v. Matthewson... 357
Mattox v. Mattox........... 388
Mauldin ». Southern Shorthand

and Bus. University........ 548
Maunder v. Venn............ 523
Maurer’s Appeal............ 224
Maxwell v. Sawyer........... 424
May ». Little............... 161
May ». May............. 638, 787
May »v. Skinner.............. 751
Maybury ». Brien........206, 208
Mayer v. Mayer............. 427
Mayer v. McClure........... 568
Mayers v. Kaiser............ 289
Mayfield ». Clifton....... 170, 171
Mayhew v. Mayhew......... 358
Maynard »v. Davis........... 210
Maynard v. Hill........... 34, 330
Mayo »v. Hutchinson......... 243
McAdam v. Walker.......... 84
McAllister ». McAllister. ..... 366
McAnally v. Insane Hospital.. 185
McAnnulty v. McAnnulty.... 273
McBee v. McBee............ 373
McBride v. McBride......... 384
McCabe v. Bellows.......... 207
McCabe v. McCabe.......... 449
McCabe v. O’Connor....... :- 593
McCall v. Parker............ 542

458

Peewee
TABLE

OF CASES CITED

[References arc to sections]

McCartee v. Teller........... 215
McCarthy »v. Boston, etc., R. R. 512
McCarthy v. Henderson. ..... 564
McCarthy v. McCarthy. . .404, 425

McCartin v. McCartin....... 364
McCarty v. Carter........... 547
McCarty v. Iron Co.. ........ 586
McCas v. Wolf.............. 171
McCauley v. Grimes......... 208
McClaim v. Alshire.......... 301
McCleary v. Barcalow........ 43
McCleary v. Menke....... 737, 767
McCloskey v. Gleason. ....... 755
McCloskey v. Provident Sav-

ing: Insti: es vecenx areas: 240
McClure v. Com............. 771
McClure ». Fairfield......... 198
McClurgh v. Terry........... 82
McClurgh’s Appeal.......... 372

McCook County v. Kanmoss.. 499

McCollister v. Yard.......... 466
McCord v. Massie........... 203
McCormack v. State......... 624
McCormice v. Leggett......... 571

McCormick Harvester Mach.

Co. v. Ponder............. 289
McCormick, In re........... 465
McCormick »v. Littler... .. 642, 644,

645, 676
McCoy ». Lane.............- 762
McCraney v. McCraney...... 349

McCreery v. Davis... .34, 332, 342
McCrum ». Hildebrand....... 14

McCullis v. Bartlett.......... 691
McCullom v. McKenzie...... 303
McCullough v. Boyce........ 295
McCullough v. McCullough... 380
McCurdy v. Baughman....... 298

McCutcheon v. McGahay . .122, 123

McDaniel v. Edwards........ 524
McDaniel v. Whitman........ 167
MeDavid v. Adams....... ... 128
MeDermott ». McDermott.... 443
McDonald v. Southern Ry.... 463
McDowell v. Bonner......... 732
McElfresh v. Kirkendall. ..... 182
McElhaney v. McElhaney.... 367
McFadden v. Hewett......... V7

McFarlane v. McFfarlane..... 394
McGan »v. Marshall.......... 584
McGarry v. Loomis..... «e+. 606
McGee v. Cunningham....... 252
McGee ». McGee..... 215, 409, 494
McGill v. Rowland........... 160
McGonnigle v. McKee....... 456
McGoon »v. Irvin............ 491
McGovern’s Estate.......... 652
McGrath v. Berry........... 264
McGrath, In re.......... 730, 785
McGregor v. McGregor....... 322
McGuire v. Callaghan........ 680
McIntire v. McIntire......... 410
McIntyre v. People.......... 764
McIntyre v. Sholty........... 655
McKamy v. Cooper.......... 553
McKay v. McKay........... 374
McKee v. Ingalls............ 683
McKee v. Jones............. 715
McKellar v. McKellar. ....... 714
McKelvy v. McKelvy........ 484
McKenna »v. Garvey......... 663
McKenna v. McKenna..... 89, 106
McKenna »v. Merry.......... 551
McKenzie v. Downell........ 647
McKenzie v. Stevens......... 491
McKim v. McKim........... 480
McKinney v. Jones.......... 748
McKnight v. Hogg........... 589
McLane v. Curran........... 764
McLaren v. Hall............. 312
McLaughlin’s Est., Inre ... .87, 92
McLean v. Davis............ 301
McLean v. Dean.............- 748
McLemore ». Chicago, ete., R.

Ry COs 4 a oe suss yeakesdeeds 620
MceLennon v. McLennon. . .67, 100
McLeod v. Board............ 301
McMahan v. McMahan...... 357
McMannis »v. Rice........... 757
McMaster ». Scriven......... 650
McMasters v. Blair.......... 668
MeMillen v. Lee............. 493
MecMorrow v. Dowdell....... 476
McNaghten’s Case.......... 670

McNeer v. McNeer. .195, 200,
203, 236
Ixx

TABLE OF CASES CITED

[References are to sections]

MeNees v. Thompson........ 654
McNeil v. Boston Ice Co... ... 606
MeNiel’s Est................ 432
MeNight v. Dudley.......... 117
MeNutt v. McNutt.......... 279
McParland v. Larkin......... 763
McPherson v. Com........... 58
McPherson v. Housel......... 117
McQuaid v. Fontaine......... 246
McQueen v. Fulgham........ 135
McQuhae v. Rey............ 125
McQuitty v. Continental L.

Wns; Cos heivaeety cndsacqacane ds 242
McSein v. State............. 108
McSparren v. Neeley......... 681
McVeigh v. U.S............. 719

MeVickar v. MeVickar. .. .859, 370
McWilliams v. Northfleet..... 773
Meacham v. Bunting.........
Mead v. Baum.............. 6

Mead v. Billings............. 589
Meader v. Archer............ 467
Meakings v. Cromwell........ 714

Mears v. Sinclair..... 479, 483, 743

Meathie v. Meathie.......... 373
Medbury v. Watrous...... 555, 563
Medway v. Needham....... 97, 99
Medworth v. Pope........... 460
Meeks v. South Pac. Ry. Co. .. 606
Meese v. Fon du Lac......... 139
Megginson v. Megginson...... 110
Meister ». Moore........ 85, 87, 93
Mellinger’s Admr. v. Bausman 236
Melvin v. Melvin............ 364
Memphis Nat. Bank v. Sneed.. 642
Mengel, Appeal of........... 506
Menherther v. Hatton........ 140
Meredith v. Crawford........ 555
Merkel’s Est... .............. 751
Mercer v. Mercer......... 357, 461
Mercantile Trust Co. v. R. I.
Hospital Trust Co.......... 303
Merchant’s Nat. Bank v. Ray-
MODE: os iasdelvnevag here 251
Mercier v. Colace............ 265
Mercer v. Walmsley.......... 524
Mercien v. People............ 479

Merrells v. Phelps... .772, 773, 786

Merriam v. Cunningham. .551,

554, 597
Merriam v. Hartford......... 163
Merriam v. Wilkins.......... 558
Merrill v. Merrill............ 48
Merrill v. Parker............ 241
Merrill v. Peaslee............ 114
Merrill v. Purdy.......... 244, 248
Merrill v. Smith............. 240
Merritt v. Howe............. 198
Merritt v. Scott............. 270
Merryweather v. Brooker... .. 173
Messer v. Smyth............. 244
Metcalf v. Cook............. 224
Metcalf v. Louther........... 737
Metford v. Metford.......... 171
Metropolitan Bank v. Turner.. 225
Mettler v. Miller............ 198
Meurer’s Appeal............ 726
Meyer v. Kinzer............. 267
Meyer v. Meyer........... 71, 399
Meyers». Field.............- 255
Meyers v. King...........--- 312
Meyers v. Pope.........-.-4- 108
Michael v. Dunkle........... 147
Michael v. Morey......... 270, 274

Michigan Trust Co. v. Chapin 262
Middleborough v. Rochester. .42, 46
Middlebury College ». Chand-

TOPh ictal eho Rote oes 548
Middleditch v. Williams...... 652
Middleton v. Hoge........ 571, 572
Middletown v. Janverin...... 101
Miller v. Bingham........... 167
Miller v. Blankley........... 597
Miller v. Brown............. 124
Miller v. Clark.............. 424
Miller v. Finley.............. 681
Miller v. Hart............... 663
Miller ». Miller...... 250, 326, 433,

435, 457
Miller v. Newton............ 225
Miller v. Pennington......... 456
Miller v. Rosier............ 27, 28
Miller v. Shackelford......... 249
Miller v. Smith.............. 558
Miller v. State..... 2.0.0.0... 157
Miller v. Steele.............. 241
TABLE OF CASES CITED

[References are to sections]

Miller v. Weatherby......... 249
Miller v. Williams........ 178, 228
Miller’s Appeal............- 505
Miles v. Boyden...........-- 469
Miles v. U.S........0 00220 108
Milford v. Milford........... 355
Millburn v. Ewart........--- 185
Milliken v. Pratt........-.-- 301
Millington v. Loring.......--. 29
Millner v. Millmer..........-- 370
Mills v. Armstrong..........- 606
Mills v. St. John. ........-0-- 787
Mills v. U.S... 0.0.0.6 000 ee 101

Mills v. Van Voorhees. .... 204, 207
Millsaps v. Estes. .... 577, 738, 768

Miltimore v. Miltimore....... 431

Milward v. Littlewood........ 11

Milwaukee Industrial School v.
Clark County......-.-- 628, 630

Milwaukee Industrial School

Miner v. Miner........--- 448, 450
Miner v. People..........--- 108
Mink ». State........----+5- 459
Minneapolis v. Reum........- 711

Worthingham
103, 105, 107

Minnesota Stoneware Co. ».
McCrossen....----++--++: 258

Minnesota 2.

Minock v. Shortridge. ...----- 567
Minor v. Happersett.....-.-- 710
Mintzer’s Estate.......----- 784
Mitchell v. Kingman.......-.- 639
Mitchell v. Williams.......-- 775
Mitchinson v. Hewson......-- 180
Mitford v. Worcester......-- 85, 92
Mix v. McCoy.....---- +--+: 683
Mix v. Peck......----- +0005 691
Mizen v. Pick.......----+++ 122
Modawell v. Holmes......--- 784
Modisett v. McPike.......--- 148
Moeller v. Moeller......----- 441
Moffett v. Witherspoon......- 458
Mohler v. Shank.......--- 344, 664
Mohon v. Tatum........---- 757
Mohoney v. Evans.......- 551, 554
Mohr »v. Porter.....----++-+-: 758
Mobr v. Tulip.......---- e+ + 644

Molensky v. Hartmeister..... 528
Moley v. Brine.....-.-.+.++: 575
Molton v. Chamroux...... 642, 678
Monroe v. Osborne......-.--- 753
Monson v. Palmer........ 460, 462

Montague v. Benedict... .. 120, 124
Montague v. Montague....... 828
Montgomery v. Gordon....... 587
Montgomery v. Montgomery.. 406
Montoya de Antonio v. Miller 779
Monumental Building Assn. v. —

Herman.........-+++-- 541, 597
Mooers v. White.........---+ 714
Moody ». State Prison........ 708
Moon v. Moon..........-+++ 414
Moon »v, Tower.....-.-.+-+55 508

Moore v. Alexander.........- 775

Moore v. Allen.........----- 273
Moore v. Christian..........- 479
Moore v. Cornell.........--- 249
Moore v. Darby........----- 200
Moore v. Graves........----- 610
Moore v. Hageman.........- 100
Moore v. Heineke........-..- 106
Moore, In re......-.----+ 320, 506
Moore v. Monroe.......-.--+ 533
Moore v. Moore...... 231, 373, 467
Moore v. Morris.......-.-+++ 227
Moore v. New York.........- 203
Moore v. Page........------5 282
Moore »v. Petitioner.......... 466
Moore v. Railroad Co......... 606
Moore »v. State........... 158, 612
Moore v. Tisdale.........- 210, 712
Moorhouse v. Moorhouse..... 393
Moors v. Moors.........- 352, 430
Moorson v. Moorson........- 399
Moot v. Moot.........206205 68
Morain v. Devlin......... 655, 657
Moran v. Dawes.........606 524
Moran, Inre..........--- 447, 466
Moran v. Stewart............ 215
Mordaunt v. Mordaunt....... 656
Morey’s Appeal...........-- 691
Morey »v. Sohier...........-- 302
Morgan v. Chetroynd........ 124
Morgan v. Elam...........-- 224
Morgan, Inre........-.----+ 446
Ixxii

TABLE OF CASES CITED

[References are to sections]

Morgan v. Kennedy.......... 135
Morgan v. Martin........... 144
Morgan v. Morgan........... 200
Morgan v. Potter............ 737
Morgan v. Reel.............- 465

Morgan »v. State............. 56

Morgan v. Yarborough....... 6, 8
Morgenroth v. Spencer....... 123
Morrell v. Morrell........... 415
Morrill vy. Aden.............. 596

Morrill v. Nightingale........ 76
Morrill v. Palmer............ 328
Morris v. Chicago, etc., Ry. Co. 155

Morris v. Low............... 470
Morris v. Miller............. 108
Morris v. Morris............. 355
Morris v. Palmer............ 125
Morrison v. Dickey.......... 316
Morrison v. Holt......... 120, 125
Morrison v. Morrison... .. 237, 393,

399, 400, 445
Morrison v. Rogers.......... 32
Morrison v. Sessions......... 464
Morrison »v. Thistle.......... 222
Morrow v. Whitesides....... . 167
Morrow v. Wood............ 537
Morse v. Crawford........... 655
Morse v. Ely..............-- 555
Morse v. Wheeler............ 560
Morse v. Woodworth......... 76
Mortimer v. Wright.......... 493
Morton v. Steward........... 578
Moses v. Stevens............ 555
Mosley v. Mosley............ 406
Moss »v. Fitch............... 427
Moss v. Moss............... 70
Mosser v. Mosser............ 351
Motley v. Head............. 676
Motley v. Motley............ 208
Moulton v. Moulton......... 406

Mountain v. Fisher....... 473, 556

Mowbry v. Mowbry.......... 494
Mowrey v. Latham.......... 637
Moyer v. Fletcher........... 740
Mueller v. Brenner........... 732
Mulford v. Saltsenback....... 757
Mulholland’s Estate......... 755
Muller v. Oregon............ 2

Mulvehall ». Millward........ 523
Munger v. Hess............- 542
Munger v. Munger..........- 474
Munro v. De Chemant....... 127
Munro ». Ritchie......... 724, 728
Munson v. Washband..... 125, 547

Murphy v. Board of Directors 537

Murphy v. Renner........... 263
Murray v. Barlee............ 225
Murray ». Carlin............ 678
Murray v. Elibank........... 232
Murray v. Kelley............ 714

Murray v. Lord Elibank...... 230

Musson v. Trigg.............
Mustard v. Woblford..... 541, 564,

565, 574, 581
Mutual Fire Ins. Co. ». Deale.. 505
Mutual Life Ins. Co. v. Hunt.. 642

Myersv. Ford............... 257
Myers v. McGavock...... 757, 758
Myers v. Myers............. 495
Mytton v. Mytton........... 357
Nagle v. Robins.......... 752, 753
Nailor ». Nailor............. 675
Nance v. Nance.......... 289, 753
Nary v. Bradley............. 409
Nash v. Mitchell............. 312
Nash v. Nash............ 169, 171
Nashville, etc., R. Co. v. Elliott 555
Natick, Inre................ 58
National Valley Bank v. Han-
COCK iohacitnic enone Secale wes 495
Naugle v. State.............. 772
Navasata First Nat. Bank v.
McGonty. ...... 2.0.0.2... 645
Naylor v. Field........... 249, 307
Neal v. Berry............... 575
Neal ». Gillette.............. 594
Neal ». Parkerson............ 300
Neal v. Robertson........... 297
Neal v. State................ 485
Neasham v. McNair......... 255
Neboyet v. Nugent.......... 1

Needles ». Needles........ 168, 171
TABLE OF CASES CITED

[References are to sections]

Neef v. Redmond............ 182
Neely’s Appeal......,....... 276
Neff v. Beauchamp.......... 338
Neff v. Landis............... 597
Nelson v. Galveston.........: 453
Nelson v. McDonald...... 248, 312
Nelson v. Ray............-- 491
Nelson v. Sargent............ 267
Nerac, In re................ 702
Nerot v. Burnand............ 315
Nettleton v. State........... 784
Neves v. Scott........... 270, 279
New Hampshire Mut. Fire Ins.

Co. v. Noyes.............. 547
Newman, Inre.............. 467
Newman’s Est............... 431
Newton v. Hammond........ 764
Newton v. Rhodes........... 126
New York Foundling Hospital

Os RGB pais oaaiaiee 8 Minton 743
New York Life Ins. Co. v

Stratham................ 718
New York v. Miln........... 713
Nicholls v. Nicholls.......... 447
Nichols v. Eaton............. 692
Nichols, etc., Co. v. Snyder.... 561
Nichols v. Nichols........ 135, 351
Nichols v. Sargent.........-. 762
Nichols v. Weaver........... 16
Nicholson v. Cox............ 295

Nicholson v. Nicholson. . . .482, 433
Nicholson v. Wilborn......... 549
Nicholson’s Appeal. . .730, 784, 785

Nickerson v. Nickerson....... 434
Nicoll, Matter of............ 728
Nicrosi v. Phillippi........... 196
Niell v. Morely.............. 642
Nightingale v. Hidden........ 200

Nightingale ». Withington . 470,
476, 493, 555, 578
Niles v. Chilton............. 56

Nilson v. Sarment........... 299
Nine v. Starr. .........-00005 461
Nix v. Bradley........... 223, 227
Nixon v. Ludland............ 138
Noble v. Moses..........-... 501
Nobles v. Ga... ...... 000006 662

Noel v. Kinney.............. 247

Nogees v. Nogees............ 332
Noice v. Brown.............. ll
Nolan v. Jones.............. 597
Nolan v. Nolan.............. 692
Nonnemacher v. Nonnemacher 42
Norcross v. Rodgers....... 128, 184
Norfolk, etc, R. R. Co. ».
Ormsbysaus Gensuteecs ome: 606

Norris v. Corkill............. 135
Norris ». Morrison........... 265
North v. James.............. 297
North Chicago St. Ry. »v.
BIOs sss ev cenoa saute 516
Northern Pac. Ry. Co. ». Bab-
COCKS os: eens hauindiobs emsuiek 717
Northern Pac. Ry. Co. v. Ma-
honeys se escsesasede sass 604
Northrup v. Hale............ 458
Northwestern Guaranty Co. ».
Silithi. 2 concsidcarnins we aucua VOl
Northwestern Guaranty Loan
Co. ». Smith.............. 751
Northwestern Ins. Co. v. Blank-
Cnshipy jc ete eegiie es eutches 643
Norton v. Devitt............ 198
Norton v. Fazan............. 123
Norton v. Nichols............ 264
Norton v. Ohrns............. 732
Norton v. Warner............ 150
Norval v. Rice............... 293
Norwood v. Harness......... 752
Nottingham, etc., Soc. v. Thur-
SON. vcr comes eee §52
Noyes v. Kramer............ 208
Noyes v. Southworth...... 305, 307
Nuding »v. Urich............. 240
Nugent v. Powell............ 464
Nugent v. Vetzera........ 5387, 743
Nurse v. Craig.............. 122
Nutt v. Norton.............. 302
Nyce’s Estate............ 752, 753
Oakley v. Long........... 635, 726

Oates v. Union Pac. Ry. Co.... 515
Oatman v. Goodrich.........
Oberfelder v. Kavanaugh. .299, 300
Oborn v. State.............. 660
Ixxiv

TABLE OF CASES CITED

[References are to sections]

O’Brien v. Philadelphia....... 470
O’Brien v. Strang............ 764
O’Byrne v. Feeley........... 609
O’Connell, In re............. 724
O’Connor v. Decker.......... 755
O’Connor v. Hendrick........ 533
O’Dea v. O’Dea............. 342
O’Dell v. Rogers.......... 558, 587
Odom v. Riddick............ 647
Offield v. Davis.............. 92
Offutt v. Offutt........... 185, 273
Ogden v. McHugh........... 271
Ogden v. Ogden............. 282
Ogilvie v. Ogilvie......... 367, 372
Oglander »v. Bastion....... 171, 293
O’Grady v. State........... _. 685
O’Hare v. Jones............. 708

Ohio & M. Ry. Co. v. Crosby.. 139

Oinson v. Heritage........... 122
O’Leary v. Brooks........... 593
Oliver v. Houdlett........... 541

Olmstead v. Olmstead .342, 347, 432

Olney v. Ferguson........... 245
Olsen v. Thompson.......... 745
Olson v. Johnson............ 462

Olson v. Solverson.......... 27, 28

Olson, State ex rel. ». Brown... 628
O’Malley v. Ruddy.......... 263
O’Mara v. Hudson R. R. Co... 512
O'Neal, In re............... 480
O’Neall v. Dudley........... 772
Orchardson v. Cofield. . .36, 42,

46, 652, 653
Oritz v. Navarro............ 20, 24
Ormston v. Olcott........... 753
Orr v. Hougson.............. 714
Orr v. Mortgage Co........... 642
Orr v. Sharft................ 259
Osborn v. Allen........... 470, 479
Osborn ». Cooper......... 252, 284
Osborn v. Morgan........... 232

‘Osborn v. United States Bank 711
Osborn v. Wilkes............ 289
Osgood v. Breed...... 305, 306, 504
Osmun v. Winters.......... 29, 30

Osterhout v. Osterhout....... 384
Ostrander v. Quin............ 598
Otis v. Spencer.............. 270

Ott v. Hentall............... 124
Otto v. Van Riper...........- 755
Otway v. Otway............- 389
Overbury ». Overbury........ 302
Overseers of the Poor v. Over-
SOCTR As 234uy het wees tds 92, 117
Overton v. Banister.......... 598
Overton v. State............. 156

Owen v. Bracket............. 66

Owen v. Brocksmidt.......... 516
Owen v. Cawley............. 245
Owen v. Crumbaugh......... 652
Owen v. Hyde............... 207
Owen v. Long............... 541
Owen v. Owen............ 362, 376
Owen ». Slatter.............. 218
Owen v. State............... 162
Owen v. White........... 491, 493
Owens v. Dennison........... 225
Owens v. Dickinson.......... 225
Owens v. Johnson............ 225
Owens v. Mitchell........... 762
Owens v. Owens............. 448
Owing’s Case............... 631
Oxenden v. Compton......... 638
Pace v. Alabama............. 58
Packard v. Packard.......... 445
Paddleford v. Paddleford..... 370
Paddock ». Robinson......... 11
Page v. Horne.............0. 276
Page v. Krekey.............. 678
Page v. Marsh............... 590
Page v. Morse..............5 575
Page v. Page............. 373, 427
Paine v. Parker.............. 174
Pain’s Case................. 196
Palliser ». Gurney........... 244
Palm v. Iverson............. 508
Palmer v. Buck........... 632, 634
Palmer v. Cook. ............. 150
Palmer v. Davis............. 577
Palmer v. Miller........ eeanatale 584
Palmer v. Oakley..... 729, 731, 741
Palmer v. Palmer......... 352, 357
Palmer v. Rankin............ 224
Palmer v. Voorhis............ 216

-Pannillv, Potomac, etc., Ry. Co. 604
TABLE OF CASES CITED

[References are to sections]

Pardee v. Lindley............ 264
Pardy v. Am. Ship Windlass Co. 589

Parent v. Callerand.......... 249
Paris ». Strong.............. 16
Park v. Barron.............. 66
Parker v. Cowan......... 180, 182
Parker v. Marks............. 226
Parker v. Medsker........ 772, 773
Parker v. Meek.............. 523
Parker v. Parker............. 45
Parker v. State.............. 624
Parker v. Steed.............. 180
Parkhurst v. Bardill.......... 158
Parks v. Cushman........... 172
Parlement Belge, The........ 717
Parr v. State................ 775
Parrett v. Palmer............ 301
Parrott v. Wells............. 657
Parsley v. Martin............ 755
Parsons v. McLane.......... 252
Parsons v. Parsons........ 410, 464
Parsons v. Spencer........... 298
Parsons v. State.......... 658, 660
Parton v. Hervey........ 39, 87, 92
Partridge v. Stocker.......... 229
Passenger Cases............. 713
Pate’s Apps sss access aege vey 462
Patterson v. Browning. ....... 467
Patterson v. Crawford........ 708
Patterson v. Gaines........ 60, 458
Patterson v. Hayden...... 522, 526
Patterson v. Kicker .......... 299
Patterson v. Lawrence........ 249

Patterson v. Nutter....... 485, 584

Patterson v. Patterson........ 857
Patton v. Cates.............. 240
Patton v. Merchants’ Bank... 224
Patton v. Smith............. 289
Patton v. Thompson......... 745
Patil; Davisis: 23 eaccaens oa 467
Paul v. Hummel............. 508
Pauley v. Drain............. 595
Paulson v. Hall.............. 161
Pauly v. Pauly........... 425, 448
Payne v. Burnham........... 251
Payne v. Payne.............. 48
Payne v. Williams........... 148
Payne’s Appeal, In re........ 328

Peabody v. Peabody......... 378
Peacock v. Binder........... 572
Peacock v. Linton........... 493
Peak v, Shasted............. 618
Pearl v. McDowell........ 644, 645
Pearman v. Pearman......... 115
Pearson v. Daley............ 772
Pearson v. Darrington........ 122
Pearson v. Howie........... 87, 93
Pease v. Pease..........0.00- 389

Malis van Gadeacaeeae chad ss 178
Peaslee v. McLoon........... 163
Peck v. Cary..... 0... cee eee 682
Peck v. Peck........... 90, 79, 425
Pedley v. Wellesley.......... 158
Peet v. Peet.......... 60, 106, 208
Peigne v. Sutclife......... 593, 599
Pelletier v. Conture.......... 575
Pellew v. Pellew............. 405
Peltier v. Peltier............. 423
Pemberton Bldg. Assn. ».

AGSIIBS a. wisi sg bated ae sens vere 579
Pendrell v. Pendrell.......... 458

Penn v. Whitehead. ..224, 229, 289

Pennegar v. State....... 96, 99, 100
Pennoyer v. Neff......... 339, 347
Pennsylvania R. Co. v. Good-
MAN Ge guodes eee RE eee Re ees 138
Pennsylvania v. Ravenal...... 117
Penrose v. Curren............ 599
Penso v. McCormick......... 604
People v. Allender............ 670
People v. Baker ........ wee. B42
People v. Baldwin ........... 612
People v. Bell..... .......... 660

People v. Bennett........... 40, 41
People v. Board .............
People v. Board of Edueation.

531, 533
People v. Brooklyn........... 675
People v. Brooks.......... 479, 786
People v. Byron........... 735, 774
People v. Carpenter .......... 660
People v. Catholic Protectory.. 629
People v. Chapman ....... 114, 351
People ». Compagnie Generale
Transatlantique........... 713
Ixxvi

TABLE OF CASES CITED

[References are to sections]

People v. Dawell.......... 333, 338
People v. Dewey............. 483
People v. Dunn.............. 156
People v. Durfee............. 660
People v. Fenley............. 660
People v. Fire Ins. Co......... 458
People v. Fish ............... 686
People v. Flynn.............. 708
People v. Gallagher........... 531

People v. Garbutt......... 670, 685

People v. Green.............. 485
People v. Humphrey.......... 108
People v. Ingersoll............ 750
People v. Lake .............. 460
People v. Lambert... .104, 108, 110
People v. Lochner............ 2
People v. McLain............ * 629
People v. McLeod............ 716
People v. McNair... .......... 612
People v. Mercein......... 323, 481
People v. Messenger.......... 627
People v. Messersmith........ 669
People v. Mills............... 686

People v. Moores.......... 542, 543
People v. Mullen............. 542
People v. Olmstead...........
People v. Owens ............. 660
People v. Pierson.............
People v. Randolph ..........
People v. Rogers.......... 685, 687

People v. Ryland............. 157
People v. School Board........ 531
People v. Schoonmaker ....... 158
People v. Schuyler............ 156
People v. Seelye........... 768,.772
People v. Shrady..:.......... 122
People v. Slack............. 40, 41
People v. Sternberger......... 479
People v. St. Saviour’s Sanita-
TUM s2cssc pole Ped tues acas 675
People v. Tobin.............. 670
People v. Todd .............. 625
People v. Turja.............. 629
People v. Walker.......... 612, 685
People v. Wandell............ 628
People v. Whipple............ 703
People v. Wilcox.......... 726, 731

People v. Williams........... 2

People v. Winters......... 115, 118
Pepper v. Stone.............. 735
Peppercorn v. Black River
Palle 24a sede nes ree 509, 602
Percy v. Cocknell............ 236
Perine v. Grand Lodge........ 748
Perkins v. Board............. 531
Perkins v. Elliott............. 225
Perkins v. Finnegan....... 784, 785
Perkins v. Hersey........... 18, 27
Perkins v. Stimmel........... 764
Perkins v. Westcoat....... 488, 495
Perrin v. Wilson............. 549
Perzell v. Perzell.......... 334, 336
Peters v. Fleming............ 551
Peters v. Fowler............. 299
Peters v. Peters...... 130, 185, 292
Petersine v. Thomas......... 426
Peterson v. Delaware River
Ferry Co............-.-44 621
Peterson v. Haffner.......... 593
Petree v. People............. 409
Pettigrew v. Pettigrew... .129, 130
Pettinger v. Pettinger........ 109
Petty v. Rosseau............ 571
Pettyjohn v. Pettyjohn....... 108
Pfannebecker v. Pfannebecker 369
Pfeiffer v. Board............. 533
Pharis v. Gere............... 638
Phelan v. Phelan......... 372, 384
Phelps v. Phelps.......... 169, 206
Phelps v. Rooney............ 259
Phelps v. Worcester....... 547, 762
Philleo v. Sanford............ 599
Phillip v. Moore............. 714
Phillips v. Barnett........ 131, 508
Phillips v. Ferguson.......... 31
Phillips v. Graves............ 225
Phillips v. Green............. 571
Phillips v. Hassell............ 233
Phillips v. McConiea......... 467
Phillips v. Meyers ........... 114

Phillips v. Phillips.. ......... 367

Phillips v. Sloyd............. 547
Phillips v. Stewart........... 298
Phillips v. Thorp ............ 320

Phillips ». Weiseman. ........ 213
Philpot v. Bingham.......... 607
TABLE OF CASES CITED

{References are to sections]

Philpot v. Sandwich Mfg. Co.
569, 571
Pickering ». De Rochmont.... 737

Pickering v. Gunning......... 548
Pickett ». Muck............. 106
Pico v. Cohn. ............... 433
Picquet v. Swan............,. 222
Pidgin v. Cram.............. 124
Pier v. Siegel................ 299
Pierce v. Dustin............. 171
Pierce, In re................ 763
Pierce v. Kittridge........... 247
Pierce v. Pierce...... 124, 215,
276, 352, 495

Pierce v. Prescott..... 733, 746, 747
Pierce v. Swan Point Cemetery 130

Piercy, In re Goods of........ 697
Pierre v. Fontenette.......... 59
Pierson v. Smith.......... 171, 239
Pike v. Collins........... 169, 171
Pike v. Fitzgibbon........... 226
Pim v. Downing............. 735
Pinkard v. Pinkard.......... 372
Piper ». Kingsbury........... 28
Pittsburg, etc., Ry. Co. v. Ha-

[kee ater enter ona Ane ee 602
Pittsburg, ete, R. Co. »v

Thompson................ 672
Plake v. State............... 670
Planter v. Sherwood.......... 296
Plaster v. Plaster............ 452

Platner v. Patchin. .. .180, 253, 294
Platner v. Sherwood...... 206, 703
Pledger v. Ellerbe............ 206
Plotts v. Rosebury...........
Plumb v. Sawyer:........... 195
Pochelu, Emancipation of... ..
Poertner v. Poertner.........
Poffenberger v. Poffenberger.. 240
Poindexter v. Jeffries. .230, 231, 233
Pollock v. Sullivan........... 11

Polydore v. Prince........... 111
Pomeroy v. Pomeroy......... 505
Pond v. Hopkins............. 761
Ponder v. Graham..... Sa -aipee 330
Pones v. State............... 690
Pool v. Blakie...... fase vet 200, 305

Poor », Poor....... Rha 359, 372

Popejoy, In re.............. 410
Popkin v. Popkin............ 443
Porritt v. Porritt............ 373
Porto. Ports i2.cecesci cans. 89, 90
Porter v. Bank............... 212
Porter v. Haley.............. 247
Porter v. Noyes.............. 203
Porter v. Powell.......... 492, 493

Porterfield ». Butler.......... 182
Portsmouth v. Portsmouth. . .42, 68
Postelthwait v. Parks........ 524
Potter v. Hiscox.......... 737, 767
Potter v. Ogden............. 734
Pottinger v. Wightman. .. .483, 743
Potts v. Breen............... 532

Powell v. Benthnall .......... 148
Powell v. Manson............ 180
Powell v. North.............. 754

Powell v. Powell. . . .44, 46, 117, 363

Power v. Lester.............. 238
Power v. Power.............. 320
Powers v. Wheatley.......... 30
Prather v. Prather........ 372, 445
Pratt Coal & Iron Co. v. Braw-
l6Vns ia ae dent ome ee dasa 606
Pratt v. Court of Probate..... 691
Pratt v. Pratt..... 63, 65, 259,
352, 430
Pratt v. Wright.............. 771
Pray v. Gorham ............. 470
Pray v. Stebbins.......... 177, 178
Prentice v. Bates......... 667, 668
Prentiss v. Paisley........... 183
Presbury v. Hull............. 703

Prescott v. Brown... .128, 167, 293

Prescott v. Guyler........... 19
Prescott v. Norris............ 599
Preston ». Dunn............. 726
Prettyman v. Williamson..... 150

Pretzinger v. Pretzinger. . .4938, 452

Prewit v. Thompson......... 270
Prewit v. Wilson............. 278
Price v. Crone............... 619
Price v. Furman.......... 558, 565
Price v. Hart................ 249
Price v. Hewitt.............. 597
Price v. Jennings............ 547
xxviii

TABLE OF CASES CITED

[References are to sections]

Price v. Planter’s Bank. . . .224, 227
Price v. Price............ 206, 214
Price v. Sanders. .551, 552, 553, 578

Price’s Appeal.............- 762
Prideaux v. Mineral Point... .. 606
Prindle v. Holcomb.......... 767

Prine v. Prine.......... 44, 46, 417

Pringle v. Pringle............ 158
Pritchard v. Pritchard........ 499
Pritts v. Ritchey............. 207
Probate Judge v. Cook....... 768
Procter v. Bigelow........... 106
Procter v. Sears............. 570
Proctor v. Cole.............. 487
Propes v. Propes............- 238
Prosser v. Warner...........- 111

Proudley v. Fielder.......... 227

Prout v. Wiley.............. 582
Prouty v. Edgar............. 543
Pryne v. Pryne.............. 263
Pugh v. Currie.............. 207
Pullam ». State.............. 313
Pulling’s Est................ 207
Purcell v. Goshorn........... 249
Purczell v. Smidt............ 714
Purdew v. Jackson........... 171
Puth v. Zumbleman....... 146, 150
Putnam »v. Putnam.......... 100
Putnam v. Town............ 474
Pyatt v. Pyatt.............. 787
Pyne v. Wood............ 551, 565
Quarles v. Quarles........... 391
Queen v. Jackson............ 115
Quigley v. Mitchell.......... 467
Quilty v. Beattie............. 135

Quincey v. Quincey. . .122, 392, 393

Quinn’s Est..............0.,. 227
Quintard v. Knoedler......... 698
Rabeke v. Baer.............. 519
Radford v. Carwile........... 224
Rains v. Wheeler............ 320

Rainwater v. Durham..... 551, 553

Ralph »v. Carrick............. 453
Rambolt v. East............. 272
Ramsay v. Ramsay....... 730, 731

Ramsay v. Thompson..... 462, 724

Ramsey v. McDonald........ 701
Ramsey v. Ramsey.......... 452
Randall v. Krieger..... 34, 202, 203
Randall v. Krueger........... 249
Randall v. Randall........ 128, 320
Randall’s Case...........--+ 79
Randlet v. Rice..........-..- 60
Rankin v. Miller............. 758

Rankin’s Heirs »v.

Ext iccsce ta vis panes Bs 701, 702
Rannells v. Gerner. . . .644, 646, 676
Ransom »v. Pennsylvania R. Co. 185
Ransom v. Ransom....... 185, 283
Rapid Transit Co. v. Sanford... 569
Rasmussen v. United States... 711

Ratcliff ». Davis............. 750
Ratcliff v. Wales...........-. 165
Rather v. State.............. 157
Rathfon v. Locher........... 182

Rathmaier v. Beckwith... .114, 320

Rawdon v. Rawdon........ 42, 405
Rawson v. Pa. R. Co.......... 192
Ray v. Tubbs............... 578
Raymond v. Vaughan........ 643
Raynes v. Bennett........... 124
Rea 0; ReGies sic seaca bevkaaes 339
Rea v. Tucker............... 146
Read v. Drake.............. 730
Reade v. Livingston.......... 273
Reader v. Reader............ 500
Reading Fire Ins. Co.’s Appeal 107
Reading v. Reading.......... 390
Reading v. Wilson........... 762
Reaves v. Reaves........... 87, 93

Reciprocity Bank, In re...... 169
Record v. Central Pac. Ry. Co. 748

Reddie v. Scoolt............. 526
Reed v. Bashears............. 560
Reed v. Batchelder........... 567
Reed v. Harper.............. 683
Reed v. Kennedy ............ 206
Reed v. Morrison... .......... 218
Reed ». Reed........ 148, 389, 405
Reed v. Williams......... 526, 527
Reel v. Elder................ 342
Rees v. Walters.............. 231
Reese v. Chilton............. 122
Reese v. Watergs............. 714
TABLE OF CASES CITED

[References are to sections]

Reeves v. McNiell ........... 239
Reeves v. Reeves...... 60, 359, 448
Reg. v. Brighton............. 56
Reg. v. Chadwick............ 54
Reg. v. Davis................ 689
Reg. v. Featherstone.. ....... 156
Regs v, Hitchiv: <4 was seks con 156
Reg. v. Glassie............... 156
Reg. v. Good................ 156
Reg. v. Griffin............... 484
Reg. v. Hawes............... 104
Reg. v. Haynes.............. 660
Regio: Ail reo. aieie ae a at se ey 672
Reg. v. Johnson,............. 626
Reg. v. Kenney.............. 156
Reg. v. Layton. ............. 670
Reg. v. Leggatt. ........2.... 149
Reg. v. Millis.............. 82, 90
Reg. v. Nash................ 462
Reg. v. Senior............... 490
Reg. v. Smith............... 623
Reg. v. Sutton. ............. 625
Reg. v. Tollett .............. 156
Reg. ». Waggstaffe.......... 490
Reg. v. Waite............... 624
Reifenschneider v. Reifen-
schneider. ................ 82
Reilly v. Reilly.............. 417
Reinders v. Koppelmann..... 467
Reinhard v. Reinhard........ 357
Reinhart v. Bills............. 148
Reis v. Lawrence............ 249
Reisch v. Thompson......... 9
Remington v. Field.......... 750
Renaux v. Teakle............ 124
Renfrow v. Renfrow.......... 106
Rennick v. Fincklin.......... 122
Renwick v. Smith............ 171
Retz v. Wheeling............ 604
Rex v. Brazier...........04.- 612
Rex v. Castlehaven........... 159
Rex v. Clark.............4.. 165
Rex v. Deleval............-.. 479
Rex v. Esop......... 0. eee ee 716
Rex v. Frampton............. 108
Rex v. Greenhill ............. 479
Rex v. Groombridge.......... 624
Rex v. Knight.............65 157

Rex v. Lester. ............06. 115
Rex v. Luffe.... 0. cece ee eee 458
Rex v. Owen... csc eee eens 624
Rex v. Soper ...........00 eee 462
Rex v. Thornton............. 625
Rex v. Yeargan.............. 627
Reynolds v. Board........... 531
Reynolds, Matter of......... 735

Reynolds v. Reynolds. .70, 213,
352, 373

Reynolds v. Robinson........ 474

Reynolds v. U.8............. 80

Rhoades v. Rhoades.......... 427
Rhodes v. Robis............. 198
Rice v. Boyer............ 580, 597
Rice v. Butler............ 551, 566
Rice v. Hoffman............. 196
Rice v. Lumby.............. 206
Rice v. Nickerson............ 529
Rice v. Rice... .........0005. 449
Rice v. Wilson............... 775
Richter v. Richter........... 500

Richard v. Brehn............ 90
Richards ». Collins...........
Richards v. East Tenn., ete.,

RY) COs sacs cas ani seoes 757
Richards v. Railway Co....... 619
Richards v. Richards...... 115, 359
Richardson v. Board......... 531

Richardson v. De Giverville... 223
Richardson v. Du Bois........ 645
Richardson v. Foults...... 526, 528
Richardson, Matter of....... 538
Richardson v. Merrill........
Richardson v. Richardson . 389,

398, 750
Richardson’s Est............ 432
Richardson v. Smith......... 106
Richardson v. Steusser....... 126
Richardson v. Strong......... 679
Richardson v. Woodstock. .... 264
Richter v. Leiby’s Est........ 738

Rickenbacker v. Zimmerman. .
Ricom v. Brandenstein.......
Riddle v. Riddle............. 80
Ridden v. Baker..... bs aria sens
Ridenhour v. Kansas, ete., R. R. 612
372
Ixxx

TABLE OF CASES CITED

[References are to sections]

Riggs v. Am. Tract Soc.....42, 641,

646, 652
Rigney v. Rigney............ 339
Riley v. Mallory.......... 564, 566

Riley v, Ledtke.............- 140
Riley’s Admrs. v. Riley....... 173
Ring v. Lawless............. 651
Ripley v. Babcock........... 668
Ritch v. Hauxhurst.......... 506
Ritchie v. People............ 2
Rivers v. Gregg..............- 549
Rivers v. Rivers............. 383
Ax 0; RIK S oa. ptei'n vane sein es 199, 397
Roach & McLean v. Quick.... 544
Robert’s Appeal............. 505
Roberts v. Frisby............ 114
Roberts v. Knights........ 715, 717
Roberts v. Lisenbee....... 132, 134
Roberts v. State... ......,..... 706
Roberts v. Wiggin............ 574
Robertson v. Brost........... 161

Robertson v. Cole............ 68

Robertson v. Norris.. ........ 175
Robertson v. Robertson... .... 352
Robbins v. Mount........... 600

Robbins v. Robbins. . 197, 332, 395,

399, 442
Robbins v. Eaton............ 569
Robinson v. Berry........ 564, 597
Robinson v. Burton.......... 527
Robinson v. Carver.......... 28
Robinson v. Clark........... 287
Robinson v. Coulter....... 541, 579
Robinson, Ex parte.......... 2
Robinson v. Hersey.......... 762
Robinson v. Holt............ 287
Robinson v. Hoskins......... 568
Robinson v. Nahon.......... 127
Robinson »v. Queen........ 249, 301
Robinson v. Randolph. ....... 227
Robinson v. Redd............ 93
Robinson »v. Reynolds........ 184

Robinson v. Robinson. . . .357, 360,
364, 653, 764

Robinson v. Wayne Circuit

Judges... 0.6.0.0... . 2. eee 628
Robinson v. Zollinger......... 728
Robinson Bank v. Miller. ..... 207

Robinson’s Appeal...........
Robinson’s Appellant........
Roche v. Washington. . .34, 80, 101
Rockafellow v. Newcomb..... 6

Rockwell v. Rockwell........ 218
Roesner v. Darrah........... 165
Roff v. Burney. ............. 720
Rogers v. Blackwell.......... 640

Rogers v. Rogers... .. 367, 393, 637

Rogers v. Smith............. 510
Rogers v. Vines.............. 420
Roll v. Roll... .........0.--- 320
Rolette v. Rolette............ 320
Roller v. Roller.............- 484
Rollins v. Marsh............. 764
Romaine v. Chauncey........ 409
Ronald v. Backley........... 751
Roosevelt v. Dale............ 298
Roper v. Clay............-. 14, 29
Rosa v. Prather..........-.. 297
Rosecrance v. Rosecrance..... 442
Rose, Matter of............. 785
Rose v. Rose...... 34, 107, 364, 395
Rose v. Sanderson.... . awe 236

Roseberry v. Roseberry. . . .185, 291
Ross, Matter of............. 634
Ross v. Morrow.............
Ross v. Ross...... 5, 336, 399,
410, 414, 457, 460, 465, 540
Roth v. House of Refuge...... 628
Roth v. Railroad Co..........
Roth v. Roth......... 338, 344, 345
Rourk v. Murphy............ 226
Rouse v. Detroit Elec. Ry..... 516
Rouse’s Est. v. Directors of
POOR: d.nencusten geese 195

Rowell v. Barber............ 273
Rowell v. Klein.............. 312
Rowe v. Hamilton........... 210
Rowe v. Roper.............. 497
Rowe ». Smith.............. 135
Rowley v. Towsley........... 751
Rubeck v. Gardner........... 714
Ruddock v. Marsh........... 120
Ruckman v. Ruckman........ 367

Rugh v. Ottenheimer...... 236, 237
Rumping v. Rumping........ 435
Rumney v. Keyes....,.,,.,,, 126
TABLE OF CASES CITED

[References are to sections]

Runding ». Smith............ 101
Runke v. Hanna............. 208
Runkle v. Runkle......... 376, 378
Runnells v. Webber.......... 203
Ruohs v. Backer............. 784
Rush’ v. Wick............... 9
Rushton’s Case............. 695
Russel v. Chambers.......... 527
Russell v. Bank.............. 245
Russell v. Cowles............ 18
Rutter v. Collins........... 27, 28
Ryan v. Dockery............. 269
Ryan v. Growney......... 579, 598
Ryan v. Sams... ............. 127
Ryan v. Smith............... 553
Rycraft v. Ryeraft........... 379
Ryder v. Hulse.............. 236
Ryder v. Ryder........ 48, 71,
395, 447
Ryder v. Wombwell. . .546, 550, 551
S———-_ ».-S——__............. 48
Sabalot v. Papulus........... 46
Sackett v. Ruder............ 152
Salchert v. Reinig........... 29
Salem Female Academy ». Phil-
lips: a iawaswdacwhad sceed 762
Sallee v. Arnold............. 733
Salter v. Salter.............. 231
Sample v. Lane.............. 751
Samus v. McLaughlin........ 240
Sanborn v. Cole............. 161
Sanborn v. Gale............. 165
Sanders v. Coleman.......... 28
Sanders v. Sanders........... 382
Sanderson v. Sanderson....... 785

Sandford v. Hestorville R. R... 612

Sandford v. McLean.......... 208
Sandon v. Sandon............ 467
Sapp v. Sapp................ 363
Sarbach v. Jones............. 672

Sargent v. Sargent... .323, 369, 372

Sargent v. Matthewson....... 529
Sargent v. Wallis... .......... 772
Saterthwaite v. Emly......... 273
Saul v. His Creditors...... 267, 540
Saunders v. Ott.............. 551
Saunderson v. Marr..../..... 607

6

Sauter v. Crutchfield......... 120
Sauter v. Scrutchfield......... 124
Savage v. Davis.............. 311
Savage v. Foster........ .. .183, 598
Savage v. King... ............ 171
Savage v. Savage. ........... 283
Savage v. Winchester......... 251

Savings Assn. v. Burkhardt... 264
Sawyer v. Baldwin...........
Sawyer v. Cutting........ 310, 313
Sawyer v. Metters...........
Sawyer v. Sauer.............
Sawyer v. Richards.......... 122

Say v. Barnes............... 768
Sayers v. Cassell............. 773
Sayles v. Christie............ 582
Scarborough v. Watkins...... 166
Scarlett v. Snodgrass......... “182
Scarrett, In re....... 479, 480, 481
Sceva v. True............... 645
Scheafe v. Laighton.......... 412
Schaeffer v. Weed............ 208
Schefferling v. Huffman....... 301
Schieb v. Thompson.......... 787
Schlitz v. Roenitz........:465, 629
Schmidt v. Durham.......... 29
Schmidt v. Milwaukee, etc.,

Rye Co. eaceues o5 says canes 605
Schmidt v. Shaver........ 757, 776
Schneider v. Brien........... 129
Schoessow v. Schoessow...... 358
Schofield v. Hopkins......... 258
Schonwald v. Schonwald...... 405
School Directors v. James. .488, 743
Schoonover v. Sparrow....... 472
Schramek v. Shepeck.......:. 645
Schroch v. Crowl............ 579
Schroeder v. Crawford........ 152
Schroyer v. Richmond........ 634
Schuler v. Henry............ 135
Schultz v. Schultz............ 131
Schuman »v. Steinel........... 310
Schuschart v. Schuschart..... 107
Schuster v. L. Bauman Jewelry

Cons we see Sade e es Raa s 471
Schuylkill Co. ». Copley...... 703
Schwab ». Pierre............. 474
Schwank v. Hufnagle......... 301
Ixxxii

TABLE OF CASES CITED

[References are to sections]

Schwartz v. Schwartz........ 74
Scoland v. Scoland. . . .357, 363, 385
Scott v. Atty.Gen............ 100
Scott v. Brown............... 584
Scott v. Buchanan............ 571
Scott v. Devin............... 677
Scott ». Gamble.............. 132
Scott v. Key........---..000- 457
Scott v. School Dist.......... 535
Scott v. Schufeldt........ 70, 75, 77
Scott v. Scott............. 249, 407
Scott v. Seabright........ 68, 69, 73
Scott v. State.............60, 57
Scott v. Tyler... ..........0.. 31
Scott v. Watson.............. 593
Scrimshire v. Scrimshire...... 101

Scroggins v. Scroggins........ 70

Scuyler ». Hall.............. 171
Seagar v. Slingerland......... 526
Searcy v. Hunter......... 547, 581
Searle v. Galbraith......... 42, 641
Sears v. Geddey............. 129
Sears v. Swenson............ 125
Seaton v. Benedict........... 120

Seattle Board of Trade v. Hay-
EDs alaie s bomly se elses » aos ablee 316

Seaver v. Adams............. 145
Seaver v. Phelps............. 642
Secor’s Case................ 130
Seguin’s Appeal............. 754

Seifert Lumber Co. v. Hartwell 264

Seiler v. People.............. 157
Seitz v. Mitchell............. 128
Selden’s Lessee v. Newton..... 543
Sell v. Miller................ 540
Selleck v. Janesville.......... 138
Semmes »v. City Fire Ins. Co... 718
Senft v. Carpenter........... 124
Senior v. Ackerman.......... 784
Seroka v. Kattenberg......... 135
Sessons v. Kell.............. 728
Setzer v. Setzer............0, 370
Sever v. Lyons.............. 259

Sewall v. Defiance Union School
5385

Seybold v. Morgan........... 129
Seyer v. Seyer.............0. 76

Shackleford v. Hall.......... 31
Shackleford v. Hamilton...... 15
Shackleton v. Shackleton. .393, 395
Shaddock »v. Town of Clifton

139, 239
Shafer v. Bushnell........ 340, 345
Shafer v. Enen.............. 468
Shafto v. Shafto............. 442

Shamleffer v. Council Grove

Shanahan ». City of Madison.. 140

Shannahan v. Com........... 685
Shannon v. People........... 460
Sharkey ». McDermott....... 464
Sharman v. Sharman......... 359
Sharon v. Sharon..... 332, 413,

415, 417
Sharpe v. Crispin......... 483, 637
Sharp, In re................ 628
Sharp v. Sharp........... 357, 394
Shattuck ». Hammond....... 150
Shaver v. McCarthy......... 650
Shaw v. Atty. Gen........... 334
Shaw »v. Carlisle.............. 718
Shaw v. Coffin............... 542
Shaw v. Hallihan............. 133
Shaw v. Kirby............... 258
Shaw v. Nachtwey........... 481
Shaw v. Shaw. . ............. 118
Shaw v. Thackeray........... 681
Shaw v. Thompson........ 182, 185
Shea v. Gumey.............. 604
Sheahan v. Berry........ 14, 28, 29
Shearer v. Fowler......... 133, 181
Sheffield v. Franklin.......... 466
Shell v. Shell.........0...000, 360
Sheltan v. Gregory........... 325
Shelton v. Orr............... 262
Shelton v. Smith............. 772
Shelton v. Springett....... 493, 488
Shepard v. Pebbles. ....... 767, 775
Shepherd »v. Shepherd........ 282
Shepherd ». Wakeman........ 6
Sherburne v. Sherburne. ...... 349
Sherman »v. Ballou........ 728, 736
Sherman v. Sherman......... 74
Sherrid ». Southwick......... 263
Sherwin ». Maben........... 125
TABLE OF CASES CITED

Ixxxiii

{References are to sections]

Sherwin v. Saunders.......... 182
Sherwood v. Wooster......... 505
Shick v. Howe............... 465
Shields v. Pflanz............. 708
Shipley v. Bunn............. 580
Shippy v. AuSable........... 606
Shirk v. Shirtz........... 564, 575
Shirley v. Shirley............ 227
Shoemaker v. Collins......... 263
Shordiche v. Shordiche....... 364
Shoro v. Shoro............. 68, 75
Short v. Moore.............. 172
Short v. Stone............... 20
Shortall ». Hinckley.......... 201
Showalter v. Bergman........ 527
Shreeves v. Caldwell......... 584

Shuck v. Shuck.............. 374

Shunks v. Seamonds......... 757
Shurtleff ». Millard.......... 563
Shurtleff v. Rile............. 749
Shute v. Sargent............. 117
Shuttleworth v. Noyes........ 172
Sibley v. Gilmer............. 123

Sickles v. Carson............ 75
Siegelbaum v. Siegelbaum. .362, 366

Sikes ». Johnson............. 600
Simar v. Canaday............ 217
Simmons v. Bull............. 461
Simmons v. Brown........... 135
Simmons »v. Oliver........... 753
Simmons v. Simmons......... 222
Simon v. Craft.............. 634
Simon »v. State.............. 93
Simonds v. Bollinger......... 178
Simonds v. Simonds....... 330, 352
Simonin v. Mallac......... 96, 101
Simonton v. Gray............ 207
Simpson v. Grayson. .522, 523,

526, 527
Simpson v. Ins. Co........ 547, 566
Simpson v. State............. 612
Sims v. Everhardt... .579, 580,

582, 587
Sims v. Ricketts...... 179, 282, 289
Sims v. Sims....... 43, 46, 503, 504

Singer Mfg. Co. v. Cullaton... 265
Singer Mfg. Co. v. Lamb...... 584
Singleton v. State............

Sioux City, etc., Co. v. Stout.. 604

Sistare v. Sistare.......... 213, 427
Skelton v. Ordinary.......... 756
Skillman »v. Skillman...... 128, 270
Skinner v. Maxwell.......... 554
Skinner v. Skinner........ 362, 448
Skinner v. Tyrell............. 121
Skoglund »v. Minneapolis St.
Bt) as daaeaes bara 137
Slanning v. Style..... 222, 228, 270
Slatyon v. State............. 156
Slaughter v. Heath........... 650
Slaughter House Cases....... 711
Slauter v. Favorite........... 752
Slayton v. Berry............. 597
Slinger’s Will............ 571, 654
Slingloff ». Brunner.......... 669
Sloan v. Cox............000- 424
Small v. Proctor............. 207

Small v. Small............ 131, 736

Small’s Appeal.............. 754
_ Smallwood v. Smallwood...... 359
Smee v. Smee............... 650
Smiley v. Wright............ 218
Smith v. Adair............... 193
Smith v. Allen............... 270
Smith v. Becker.............. 702
Smith v. Borden.. ........... 298
Smith v. Carney............. 616
Smith v. Compton............ 15
Smith v. Derr’s Admrs........ 457
Smith v. Evans.............. 564
Smith v. Fuller....... 104, 105, 109
Smith v. Gummers........... 772
Smith v. Keener. ............ 258
Smith v. King.. ............. 325
Smith v. Knowles............ 320
' Smith v. Krow............-5. 593
Smith v. Low..........-..005 572
Smith v. McAtee............. 301
Smith v. Meyers.......... 150, 157
Smith v. Milburn ............ 520

Smith v. Norfolk, ete.,R. R.Co. 683
Smith v. North Memphis Sav.

Bank ince acne! 9-5-8 hs ae eevee 87
Smith v. O’Brien............. 165
Smith v. Oliphant............ 552
Smith v. Pearce.............. 264
Ixxxiv

TABLE OF CASES CITED

{References are to sections]

Smith v. Rogers..............
Smith v. Smith. .19, 42, 45, 48,
68, 70, 71, 131, 137, 139, 143,
169, 329, 339, 349, 363, 372,
384, 394, 502, 652, 446, 427, 753

Smith v. State............0.. 703
Smith v, St. Joseph........... 137
Smith v. Voges............... 289
Smith.v. Weeks.............- 254

Smith v. Wells............... 223

‘Smith, Will of............... 652
Smithie ». Smithie........... 413
Smith’s Appeal.............. 754
Smith’s Est., Inre........... 67
Smith’s Exrs. v. Smith........ 453
Smithson v. Smithson........ 367
Snavely v. Hardraker....:... 785
Snider v. Ridgeway.......... 169
Snoddy v. Leavett........... 250
Snook »v. Sutton............. 750
Snover v. Snover............ 446
Snowman v. Wardwell....... 14, 22
Snyder v. People......... 156, 235
Snyder v. Snyder............ 130
Soltykoff, Inre.............. 578
Sommermeyer v. Schwartz.... 289
Sommerville ». Sommerville... 483
Soper v. Igo.......... 0.000 529
Soper v. Igo, Walker & Co.. ... 470

Sottomayer v. De Barros... .96, 97
South v. Dennison........ 522, 523
South v. Williamson.......... 678
Southard v. Plummer........
Southard v. Rexford........ 24, 30
South Covington, etc., Ry. Co.

v. Herrklotz .............. ‘606
Southerland ». Southerland
AdMfPsy cogs eases sees 273

Southwick v. Southwick. . .366, 369

Southworth v. Treadwell...... 424
Sowell v. McDonald.......... 487
Spaggs v. State.............. 695
Spangenburg v. Guiney....... 467
Sparhawk v. Sparhawk....... 330
Sparman v. Keim............ 575
Spaulding v. Spaulding....... 412
Spear v. Cumings............ 535

Spear v. Robinson........... 54

Speck v. Gray.........0. 000 150
Speedling v. Worth.......... 631
Spelling v. Parks............. 28
Spencer v. Boardman......... 279
Spencer v. Houghton....... .. 7783
Spencer v. Pollock......... 90, 107
Spencer v. Simmons.......... 28
Spencer v. State............. 660
Spears v. Snell........0..000. 479
Spicer v. Earl............... 556
Spier v. Opfer............... 237
Spiller v. Woburn............ 533

Sprague v. Craig............ 22, 28

Sprague v. Moore........-... 504
Sprayberry v. Merk.......... 121
Spreckles v. Spreckles........ 268

Springfield v. State....... 685, 687

Spurlock v. Brown........... 276
Stable v. Dixon.............. 489
Stack v. Cavanaugh.......... 566
Stafford v. Roof............. 558
. Stahl v. Stahl........... 0.0. 501
Stallard v. White............ 537
Stallings v. Bartlett.......... 782

Standeford v. Devol....... 167, 171
Stanley’s App............... 734
Stanley v. Montgomery.......
Stanton v. Willson........ 161, 452

Stapleberg v. Stapleberg...... 411
Stapleton v. Crofts........... 158
Star v. Curtis............... 255
Starbuck v. Starbuck......... 344
Starr v. Pease............... 330

Starr v. Peck. ............... . 90

Starr v. Wright.............. 543
St. Fernando, etc., Academy v.
Bobb enki sit id Sig eireaiin dace 494

St. George v. Biddleford...... 42

St. George v. St. Margaret.... 455
St. John v. St. John.......... 325
St. Sure v. Lindsfelt.......... 344
State v. Aaron............... 614
State v. Adams........... 624, 712
State v. Alexander............ 660
State v. Armington........... 338
State v. Avery..............,. 685
State v. Bailey............... 497
State». Baker............... 767
TABLE OF CASES CITED ‘Ixxxv

[References are to sections]

State v. Banks. .............. 156: State v. Hamilton County

State v. Barrow. ...........-. 301 COMPS ss 64% Shas a ieee os 757
State v. Bechdel............. 480 State v. Hand.............-- 99
State v. Beggs...........005- 40 State v. Handy.............- 624
State v. Behrman............ 104 State v. Hansborough......... 108
State v. Beldon.............- 612 Statev. Hansen.............. 670
State v. Bell.............00.. 99 State v, Harrison......... 660, 662
State v. Berry............-5- 660 State v. Hayes..........-.--- 190
State v. Billings.............. 634 State v. Hilton ..........---- 108
State v. Bittick.......... 34, 87,92 State v. Hodgkins............ 108
State v. Board of Education... 532 State v. Home Soc..........- 629
State v. Bostick.............. 625 State v. Hostetter...........- 2
State v. Brandon............. 660 State v. Houston............- 157
State v. Brecht.............- 108 State v. Houx..............- 626
State v. Britton........... 108,771 State v. Howard...... 625, 693, 695
State v. Buck..............-- 708  Statev. Huessey............. 159
State v. Burdge........-....-. 532 State v. Hull............. 772, 775
State v. Burt............-5-- 159 State v. Jackson........ 57, 58, 497
State v. Burton.............. 535 State v. Jenkins.............. 108
State v. Castello..........-.. 690 State v. Joest............-4. 779
State v. Chambers..........- 159 State v. Johnson...... 487, 660, 689
State v. Chinoweth........... 490 State v. Jones........ 485, 624, 660
State v. Clark ............--- 538 State v. Kelley........... 157, 673
State v. Cone...........-6-5-- 41 State v. Kennedy........... 97, 99
State v. Craton............5- 115 State v. Kilbourne........... 634
State v. Davis..........--- 75,687 State v. Kluseman........... 625
State v. Deberry.........---- 674 State v. Knight.............. 660
State v. Dennis..........-.-- 773 State v. Koonse.............. 485
State v. Dickerson........ 486, 590 State v. Kraemer .........-... 689
State v. Dist. Board.......... 5387 Statev. Larnard............. 624
State v. Dowell...........--- 114 State v. Lee..............005 670
State v. Doyle.........--.--- 612 Statev. Lehman............. 661
State v. Draper........-.---- 696 State v. Leslie............04. 767
State v. Drury.........--+-+- 773 ~=State v. Levy...........--665 612
State v. Ducket.........-. 330, 383 State v. Libbee.............. 481
State v. Eaton.........-..--- 429 Statev. Libbey.............. 106
State v. Fellows..........-.:. 851 State v. Locker............-- 674
State v. Felter..........----- 660 State v. Long...............- 485
State v. Fertig. .......--.---- 157 State v. Lowell...........-. 40, 92
State v. Fulton...........--- 159 State v. Ma Foo............. 157
State v. Geddis............-- 660 State v. Marenouget.........- 629
State v. Giroux...........+-- 448 State v. Maryland Institute... 531
State v. Glenn...........---- 628 Statev. Marvin......... ics Gr 104
State v. Gooch........-..-+-- 753 State v. McCann............. 531
State v. Goodenow.........-- 352 State v. McLaughlin......758, 771
State v. Greenslade........... 754 State v. Melton.............. 487
State v. Guild............--- 627. Statev. Michael............. 612

State v. Haab...........-5-- 689 State v. Miller............... 79
Ixxxvi

TABLE OF CASES CITED

[References are to sections]

State v. Milton.............. 58
State v. Mizner.............. 537
State v. Muller.............. 2
State v. Murphy............. 664
State v. Newberry............ 159
State v. Oliver............... 115
State v. Pearce .............. 159
State v. Peckham............ 767
State v. Pendergrass....... 485, 536
State v. Pike............. 660, 689
State v. Plym................ 109
State v. Potts................ 689
State v. Pugh................ 624
State v. Ray................. 628
State v. Ridemeier........... 670
State v. Reed................ 156
State v. Reidell.............. 660
State v. Reuff............... 479
State v. Rhodes.............. 115
State v. Richie............... 612
State v. Robinson............ 686
State v. Rood..............-. 108

State v. Roswell........... 56, 108

State v. Russell.............. 159
State v. Saidell............... 458
State v.Sam................. 624
State v. Scanlan ............. 612
State ». Schingen ............ 685
State v. Schweitzer........... 108
State v. Scott........ 479, 660, 670
State v. Shackelford....... 772, 773
State v. Shaw ............... 156
State v. Sheve............... 533
State v. Shorey.............. 626
State v. Slauter.............. 775
State v. Slevin............ 746, 764
State v. Sloane............... 731
State v. Smith............... 672
State v. Snyder.............. 670
State v. Spencer ............. 670

State v. S. S. “Constitution”... 713
State v. St. Louis Ct. of App... 417
State v. Ta-ha-na-tah......... 80

State v. Tice ................ 624
State v. Traveler’s Insurance

COe gotee et nerds bd 718, 714
State v. Treadway ........... 58
State v. Trout............... 670

State v. Tutty.............0. 99
State v. Vellatio............. 711
State v. Walker............. 79, 87
State v. Watters............. 58
State v. Weathermore........ 542
State v. Webber.......... 533, 537
State v. White............ 672, 690
State v. Wilson.......... 82, 85, 93
State v. Winkley............. 108
State v. Witham............. 377
State v. Worthingham........ 105
State v. Wright.............. 670

State v. Yeargan............. 624

State v. Zimmerman.......... 532
State ex rel. Aldrach v. Morse.. 343
State ex rel. Burpee v. Burton... 536
State ex rel. Lane v. Ballinger... 738
State ex rel. Larkin v. Ryan... 675
State ex rel. Olson v. Brown... 628
State ex rel. Weiss v. Dist.

School Board............. 533
State Bank v. McCoy........ 681
State ex rel. Jordan.......... 2
States v. States.............. 70
Statz v. Schreck............. 177
Stikeman v. Dawson......... 598
Stiles v. Stiles............... 370
Stilley v. Foley.............. 215
Stillman v. Stillman.......... 424
Stillson v. Hannibal, etc., R. R.

COs Musee Sareea) 2 ante ex we 606
Stimpson v. White........... 128
Stittgen, Inre............... 628
Stead v. Nelson.............. 224
Steadman v. Wilbur.......... 287
Stearns v. Stearns............ 169
Stearns v. Weathers.......... 236
Steasey v. Rice.............. 227
Stebbins v. Anthony...... 159, 332
Stebbins v. Palmer........... 25
Stebbins v. Petty............ 500
Steel v. Steel... 2.2.0.0 0 000, 70
Steele v. Frierson............ 504
Steele v. Steele............0, 398
Stegall v. Stegall..........00. 213

Stein v. Bowman......... 158, 162
Stein v. Stein... .....00.0000,
TABLE OF CASES CITED

[ References are to sections]

Stephenson »v. Ballard........ 247
Stephenson v. Osborn... .. 210, 320
Sterling v. Adams............ 600
Sternman v. Ashdown........ 289
Stevens v. Carson............ 287
Stevens v. Smith......... 206, 207
Stevens v. State............. 660
Stevens v. Stevens........... 205
Stevenson v. Belknap......... 527
Stevenson v. Bruce........... 748
Stevenson v. Gray...... 97, 98, 101
Stevenson v. Stevenson....... 48
Stewart v. Bailey............ 759
Stewart v. Lispenard...... 646, 671

Stewart v. Stewart ...227, 358,
366, 369, 427

Stewart v. Vandervort..... 329, 349

Stewart’s Exr. v. Lespenard... 651

Stockman, Matter of......... 730
Stoddard v. Gibbs........... 199
Stokes v. Ammerman......... 242
Stoltz v. Doering.......... 90, 460
Stone v. Appel............. 19, 21
Stone v. Carr............0.. 494
Stone v. Dennison........ 555, 556
Stone v. Pulsipher........... 473
Stone v. Stone.............. 400
Stone v. Vandermark........ 216

Storey v. Storey.......... 320, 424

Storey’s Appeal............. 505
Storke v. Storke............. 417
Stover v. Herrington......... 287
Stoudt v. Shepherd....... 526, 528
Stoughton’s Appeal.......... 750
Stowe v. Haywood........... 529
Stowers v. Hollis............. 542
Strain v. Wright.......... 564, 565
Strait v. Strait.............. 336
Strathmore v. Bowes......... 277
Stratton v. Dole............ 22, 28
Streitwolf v. Streitwolf....... 337
Strom v. Strom........... 131, 292
Strong v. Clem.............. 203
Strong v. Lord.............. 207
Strong v. Smith............. 172
Stroop v. Swartz............. 139
Stroup v. Stroup............. 277

Strubbe v. Kings Co. Trust Co. 762

Stuart v. Bute............... 729
Stuart v. Simpson............ 529
Studdy v. Studdy............ 398
Studwell v. Shapter.......... 597
Stull’s, Est. ...224 250¢:aeeeres 100
Stumm v. Hummel.......146, 150
Stumpf v. Pfeifer............ 638
Stumpf’s App............... 461
Sturgis v. Sturgis........... 96, 97
Sturnbridge v. Franklin....... 126
Succession of Benton......... 339
Succession of Caballero....... 99
Succession of Caldwell........ 467
Succession of Lewis.......... 483
Succession of Minniville...... 58
Sullivan v. Horner........... 497
Sullivan v. Sullivan.......... 398
Summers v. Babb............ 205
Summerville v. Summerville... 106
Sumner v. Conant........... 312
Suter v. Suter..............- 117
Sutherland’s Estate.......... 467
Sutton v. Hancock........... 303
Sutton v. Huffman........... 524
Sutton v. Warren....... 56, 98, 101
Swan v.Hammond........ 302, 305
Swan v. Caffee.............. 315
Swan v. Sayles.............- 303
Swain v. Lyon..............- 298
Swain v. Tyler.............. 491
Swarthout v. Curtis.......... 761
Swartz v. McLelland......... 300
Swasey v. Vanderheyden...... 578
Swayne v. Lyon............. 298
Sweaney v. Mallory.......... 218
Sweeney v. Sweeney.......... 367
Sweet v. Sweet.............. 322
Swetzer v. Kee.............. 128
Swift v. Bennett............. 552

Swift v. Luce................ 249

Sykes v. Lalor..............- 510
Tabb v. Archer.............. 280
Tabor v. Tabor.............. 231
Taft v. Pike........... 0000s 566
Taft v. Sargent.............. 560
Tagert v. State.............. 54
Taggert v. Muse............. 226
lxxxviii

TABLE OF CASES

CITED

[References are to sections]

Talbot v. Bowen............. 608
Talbot v. Chamberlain....... 637
Talcott v. Arnold............ 289
Tank, Guardianship of........ 730
Tasker v. Stanley............ 148
Tate v. Mott................ 737
Tatro.v. Tatro.............. 214
Taubert v. Taubert.......... 487
Taunton v. Plymouth........ 476
Taylor v. Am. Freehold, etc.,
Onan nei ae ye wash 252
Taylor v. Diplock............ 302
Taylor v. Everett............ 504
Taylor v. Jacques............ 76
Taylor v. Jeter....... 483, 737, 743
Taylor v. Lovering........... 665
Taylor v. Meads...... 189, 224, 306
Taylor v. Murphy............ 268
Taylor v. Peabody ........... 757
Taylor v. Philips............. 757
Taylor v. Rountree. .......... 253

Taylor v. Taylor.......... 361, 505

Taylor v. Thieman........... 474
Taylor v. Treich............. 652
Taylor v. Wing.............. 54
Teargarten v. McLaughlin.... 508
Defi: 0. Tei G soso ue ciace neu aigins 330
Tellexman v. Wilson......... 190
Templeton v. Twitty......... 198
Tennant v. Stoney........... 218
Tenney v. Evans.........-.. 733
Tenton’s Will, Inre.......... 654
Territory v. Sheriff, ete........ 634
Terry v. Buffington .......... 668
Terry v. Dayton............. 504

Terry v. Hutchinson. .522, 523, 527
Teter v. Teter..... 85, 87, 105,

109, 448
Texas, etc., Ry. Co. v. Morin

509, 516
Texas, etc., R. R. Co. v. O’Don-

MOU iin ea dees caescnh wae 604
Texas, etc., Ry. Co. v. Robert-

BOD. aig eee g Sea Sas eee eee ty 453
Thackaberry v. Thackaberry.. 325
Thackeray’s Appeal ......... 749
Thaw, Inre................. 662
Thaw v. Ritchie............. 758

’ Thompson v. Vance..........

Thayer v. Boyle............. 690
Thayer v. Thayer......... 409, 442
The Prize Cases............. 718
The Santissima Trinidad..... 712
Thing v. Libbey....... ee tteaa 560
Thomas v. Bennett.......... 748
Thomas v. Dyke............. 555
Thomas v. Folwell........ 224, 306
Thomas, Inre............... 2
Thomas v. Kennedy.......... 300
Thomas v. People............ 708
Thomas ». Thomas. .156, 372,
398, 456
Thomas v. White............ 770

Thompson v. Bronk.’......... 708
Thompson v. Brown...........
Thompson v. Clendening ..... 527
Thompson v. Edw. P. Allis Co. 603

Thompson v. King ........... 195
Thompson v. Kyle ........... 301
Thompson v. Law ........... 570
Thompson v. Leech .......... 646
Thompson v. Salt Lake Rapid
Transit Co................ 695

Thompson v. Thompson. . .62,

66, 376, 401, 505, 749
207
Thorington v. Thorington..... 757
Thormaehlen v. Kaeppel. . .579, 582
Thorn v. Knapp............. 30

Thorne, In re............... 464
Thornton v. Thornton........ 177
-Thorp v. Brookfield.......... 683
Thorp v. Thorp........... 100, 384
Thrash v. Starbuck.......... 647
Thrasher v. Ingram.......... 170

Thresher v. Barry............ 247

Thrupp »v. Fielder............ 569
Thurston, Matter of......... 752
Thurston v. Thurston........ 341
Tibbetts v. Gerrish........... 569
Tidd v. Sister............... 230
Tiffany v. Tiffany............ 363
Tifft v. Tifft..........00000. 508
Tillett v. Com............... 171
Tillison v. Tillison........ 388, 435
Tilt v. People............... 2

Tilton v. Tilton. .........0... 373
TABLE OF CASES CITED

[References are to sections]

Timbus v. Katz............. 171
Tioga Co. v. South Creek Town-
“SID pivawaialenin ain esata 459
Tipping v. Tipping........... 190
Tipton v. State.............. 674
Tipton v. Tipton............ 336
Titlow v. Titlow............. 667
Tobey v. Smith.............. 133
Tobey v. Wood.............. 569
Tobin v. Dixon.............. 231

Todd v. Ames............... 226
Todd v. Lee. .224, 225, 226, 229, 248

Todd v. Morehouse.......... 505
Todd v. Oviatt....... 198, 199, 201
Todd v. Todd.......... 70, 73, 402
Todd v. Weber.............. 461
Tollemache v. Tollemache.... 405
Toms v. Flack............... 299
Tong v. Marvin............. 200
Tootal’s Trusts, In re........ 4
Topper v. Perry............ 89, 90
Torre v.Summers............ 150
Torrens v. Campbell......... 477
Torrey v. Torrey............ 177
Totten v. McManus.......... 171
Tourne v. Tourne............ 364

Towle v. Dresser.......... 558, 607

Town v. Lamphire........... 161:
Town of Londonderry v. Ches-
tO? dc eae Vee ee ee Reese 93
Town of Tunbridge v. Town of
BOD. ccs sissy ou eed ee Rahs 476
Townes v. Durbin........... 301

Townsend »v. Kendall. .737, 743, 744

Townsend v. Pepperell....... 671
Townsend v. Windham....... 190
Towson v. Moore..........-- 501
Tozer v. Saterlee............. 644
Trader v. Jarvis............. 543
Trail v. Trail............- 357, 367
Trainer v. Trumbull...... 545, 549
Trammell ». Trammell ....... 483
Trammel v. Vaughn..... 15, 19, 30
Trapnell v. Conklyn...... 236, 289
Traverse v. Reinhart. ..89, 101

106, 107
Travis v. Barger............- 526

Trevor v. Trevor .........+.- 270

Trimble v. State............. 251
Trimmings v. Trimmings ..... 399
Tripp v. Barker............. 161
Tritts’ Admr. v. Colwell.. .... 171
Trout v. Drawhorn .......... 54
Trubee v. Trubee............ 382
True v. Ranney ........... 46,93
Trueblood v. Trueblood ...... 607
Trueman v. Hurst ........... 578
Trumbull ». Trumbull........ 148
Trust Co. v. Sedgwick........ 183
Tucker v. Andrews........... 230
‘Tucker v. Burrow............ 505
Tucker v. Gest ............0. 547
Tucker v. Moreland. .541, 579,

584, 607
Tucker v. Shaw ............. 672
Tufts v. Tufts........... 349, 406
Tullett v. Armstrong...... 225, 227
Tumbleson v. Tumbleson ..... 425
Tunison v. Chamberlain...... 584

Tupper v. Caldwell. ..546, 547, 554
Turner v. Alexander.......... 748
Turner v. Estes.............. 148
Turner v. Gathier. . . .548, 560, 569

Turner, Inre............... 730
Turner v. Meyers............ 42
Turner v. Rush........... 643, 646
Turner v. Scheiber........... 265
Turner v. Shaw........... 224, 282
Turner v. State...........00. 159
Turner v. Thompson......... 829
Turner v. Trisby............. 553

Turner v. Turner. .107, 259, 341, 767
Turner’s Appeal............. 651
Tuten v. Buyrd.............. 80
Tuttle v. Gilmore............
Tuttle v. Northrop...........
Tyler v. Salley .............. 29

Tyler v. Tyler............... 303
Tyler». Wheeler............. 307
Tyson v. Latrobe............ 751
Tyson v. Richardson......... 619
Tyson v. Tyson.............. 619
Ucker v. Koehn .......... 571, 586
Udall v. Kenney............. 233
Udny v. Udny............... 457
xe TABLE OF CASES CITED

[References are to sections]

Uhlman v. Uhlman....... 393, 448
Ullman v. Meyer ............ 16
Ulrich v. N. Y. Press Co....... 656
Unilauf v. Umlauf ........... 448

Underwood v. People...... 634, 662
Union Nat. Bank v. Chapman 301
Union Pac. Ry. Co. v. McDon-

ald ec. snevarg aheaesaes 604, 605
United States v. Crukshank ... 710
United States v. Drew..... 685, 689

United States v. Green ....... 479
United States ». Gruteau ..... 660
United States v. Rogers....... 98
United States v. Snow........ 80
United States v. Throckmorton 433
United States v. Williams..... 721
United States v. Wong Kim
SALK occ can bad sare ba RR ee 711
United States v. Young....... 660
Upson v. Noble.............. 467
Urig v. Horstman............ 240
Urquhart v. Oliver........... 307

Van Arsdalen ». Van Arsdalen 369
Van Bentheusen v. Van Ben-
Theusetess geek ness eens

Vanderheiden v. Mallory . .225, 226
Van Deusen v. Newcomer. .632, 634

Van Deusen v. Sweet......... 646
Van Deuser v. Van Deuser..... 742
Van Doren v. Everett ........ 572
Van Duzer v. Van Duzer...... 426
Van Dyke v. Van Dyke....... 370
Van Epps v. Van Deusen...... 231
Van Fosen v. State........ 338, 344
Van Guysling v. Van Kuren

650, 652
Van Hoffman v. Ward........ 483
Van Horn v. Freeman ........ 527
Van Houten, Inre........... 739
Van Houten, Matter of....... 724
Van Houten v. Morse ....... 13, 14
Van Inwagen v. Van Inwagen

341, 381

Van Matre v. Sankey 462, 465, 467
Van Orsdale v. Van Orsdale 340, 341
Van Storch v. Griffin......... 346

Van Tine v. Van Tine ........ 464
Van Vactor v. State....... 485, 534
Van Valkenburg v. Watson.... 493
Van Voohis v. Brintnal ..... 11, 100

Van Walters v. Board ........ 629
Van Winkle v. Schoonmaker... 305

Vail v. Winterstein........... 316
Valentini v. Canali........... 566
Valk v. Valk .............04. 335
Valleau v. Valleau ........ 352, 406
Valpey v. Rea............... 646
Vance v. McLaughlin ........ 172
Vance v. Calhoun............ 475
Vanee, Inre..............-. 483
Vance v. Vance........... 297, 621
Vandegrift v. Vandegrift...... 413
Vanderburg v. Williamson .... 759
Vanderpool v. Richardson... .. 28
Vandewater, Matter of....... 730
Varier v. Loris .............. 268
Varney v. Young ............ 493
Varney v. Varney....... 69, 70, 376
Vason v. Bell................ 270
Vasse v. Smith........... 596, 599
Veal v. Hurt..............0. 252
Vehue v. Pinkham ........... 555
Vellareal v. Mellish .......... 479

Venable v. Wabash Ry. Co. ... 208

Vent v. Osgood.............. 555
Vermillion v. State........... 535
Vernon’s Case............005 216
Vernon v, Vernon............ 216
Verser v. Ford. ...........005 480
Viall v. Smith .............2. 458
Vick v. Pope.............2.. 298
Vickerie v. Pierce............ 590
Vidal ». Commagere ......... 464
Viets v. Union Nat. Bank ..... 43
Villard v. Robert ............ 745
Vinalhaven v. Ames.......... 590
Vincent v. Starks............ 748
Vineall v. Veness ............ 17
Vischer v. Vischer ........ 117, 352
Viser v. Seruggs ............. 179
Vondal v. Vondal........... 48, 71
Von de Vel v. Judy........... 649
Vorres v. Nussbaum.......... 252
Vosburg v. Putney........... 593
TABLE OF CASES CITED

xel

[References are to sections]

Vosburg v. Vosburg.......... 371
Vose v. Myott............... 255
Vossel v. Cole............... 525
Vowles v. Young ............ 458
Vreeland’s Exrs. v. Ryno’s
EXT. dh. Weed AW ee ee 167
Vreeland v. Vreeland......... 753
Vusler v. Cox......... 122, 128, 124
W— v. W—...........5.. 360
Wackerlie v. People.......... 781
Wade v. Calvert............. 678
Wade v. Kalbfleisch.......... 26
Wade v. Loebdell............ 768
Waddington v. Buzby........ 650
Wadleigh v. Clines........... 250
Wadsworth v. Connell........ 725
Wadsworth v. Sharpsteen. .679, 681
Waesche’s Est............... 129
Wagenseller v. Zimmers . .19, 20, 24
Wagner v. State............. 689
Wagner v. Varner............ 467
Wagner v. Wagner. . .372, 417,
427, 647
Wagner’s Est., Inre ......... 305
Wainright v. Smith .......... 763
Wake v. Parker.............. 293
Wakefield v. Ives............ 446
Walch v. Bunce ............. 580
Waldron v..Davis............ 645
Waldron v. Waldron ......... 150
Wales v. Coffin.............. 177
Walford v. Powers ........... 462
Walker v. Brooks............ 503
Walker v. Davis............. 597
Walker v. Ebert............. 697
Walker v. Johnson........... 28
Walker v. Laighton........... 123
Walker v. Nierosi............ 285
Walker v. Reamy......... 249, 300
Walker v. Simpson........... 121
Walker v. State ..........4-- 672

Walker v. Walker... . .325, 373, 423
Walker’s Admrs. v. Potomac,

ete:, R. Re'G@o. s asec swe nian 604
Walker’s Est.............--- 57
Wall v. Williamson........... 80

Wallace v. Auldgo ........ 231, 232

Wallace v. Bardwell.......... 547
Wallace v. Del Bois.......... 506
Wallace v. Kimball .......... 59
Wallace v. Long............. 474

Wallace v. Wallace. . .165, 274,
342, 380, 455, 459

Waller v. Armistead.......... 768
Wallenburg v. Missouri Pacific

Rys Cou: scsey gece seaigie ise 711
Wallin v. Park Co............ 545
Walling, Inre............... 772
Waltermire v. Waltermire. .357, 359
Walter’s Appeal............ 55, 56
Walters, Matter of........... 532
Walters v. Morrow........... 590
Walsh v. State .............. 774
Walton v. Broaddus.......... 222
Walton v. Gaines......... 579, 582
Walton v. Twiggs............ 730

Walton v. Walton............ 398
Wanamaker v. Weaver ... .120, 123

Waples v. Hastings .......... 607
Warburton v. White ......... 268
Ward v. Cronaster........ 655, 656
Ward'v. Dulaney........... 42, 46
Ward v. Flood............... 531
Ward v. Ward............... 359
Ward, Will of............... 307
Wardwell v. Wardwell..... 724, 725
Wardell’s Est., In re......... 460
Ware v. Ware............... 779
Warfield v. Fiske............ 646
Warner v. Heiden............ 125
Warner v. Smith............. 591
Warner v. State............. 613
Warner v. Warner........... 370
Warner’s Case.............. 108
Warren v. Freeman.......... 248
Warren v. Manchester St. Ry.

CO siina tanepicls, Passeaieles Gusmenscs 606
Warren v. Prescott....... 457, 467
Warren v. Warren........... 144
Warren v. Williams.......... 180

Warrender v. Warrender...... 117

Warter v. Warter............ 100
Warwick v. Bruce............ 559
Washburn v. Abrahams ...... 529
Washburn v. Burns.......... 177
xcl

TABLE OF CASES CITED

[References are to sections]

Washburn v. Hale...........
Washburn v. Sproat.......... 289
Washburn v. Washburn. . .377, 435
Washington v. Beaver..... 462, 637
Waskam v. Waskam...... 359, 360

Watertown v. Greaves........ 117
Watkins v. De Armond....... 123
Watkins v. State............. 734
Watkins v. Thornton......... 199

Watkins ». Watkins. .335, 338, 344

Watson v. Cross............- 552
Watson v. Lincoln............ 506
Watson v. Threlkeld.......... 127
Watson v. Warnock........... 730
Watson v. Watson......... .. 869
Watts v. Dull............ 464, 466
Watts v. Owens.......... 455, 458
Watts v. Steele.............. 495
Waugh v. Emerson........... 555
Waugh v. Riley.............. 714
Way v. Way.............0ee 344

Weaver v. Bachert. . .17, 19, 29, 526
Weaver v. Jones ............. 541
Weaver v. Ward.......... 655, 657

Webb ». Jackson.......... :. 467
Webster v. Conley........... 750
Webster v. Page............. 616
Webster v. Webster.......... 432
Wedgewood’s Case.......... 104
Weedon »v. Trunbrell......... 147
Weems v. Weems............ 171
Weiland v. Koblick.......... 579
Weinberg v. State............ 110
Weinham ». State............ 2
Weis, In 16) icaencrtnaaeanes 676
Weishrod v. Chicago, etc., R... 312
Weise v. Norton............. 779

Weishaupt v. Weishaupt. ..376, 379
Weiss, State ex rel., v. Dist.

School Board.............
Welch v. Welch........... 448, 607

Weld v. Johnson Mfg. Co...... 759
Weld v. Walker.............. 130
Weldon v. De Bathe.......... 131
Weldon v. Lytle............. 750
Wells v. Padgett............. 17
Wellner v. Eckstein.......... 702
Wells v. Foster...... 244, 251, 252

Wells v. Gaywood........... 283
Wells v. Tyler............... 169
Wells v. Williams............ 719
Wellsley v. Wellsley.......... 628
Welty v. Indianapolis, etc., R.

Reo Cone gaaecimmns secaenae’ 683
Wendel v. Wendel....... 48, 69, 70
Werner v. Werner............ 411
Weringer, Inre ............. 129
West v. Duff................ 527
West v. Forsythe ............ 785
West v. Gregg’s Admr........ 547
West v. Jones ............... 504
West v. Penny............567, 568
West v. State ............... 108
West v. West. ............ 306, 349

West Cambridge v. Lexington 100
Westbrook v. Comstock. .169,
172, 769
Westbrook v. Railroad Co..... 606
Westcott v. Miller...........
Westerfield v. Levis........... 606
Westervelt v. Gregg. .170, 171, 236
Westlake v. Westlake.114, 144, 148
Westmeath v. Westmeath. .361, 362
Westmeyer v. Gallenkamp.... 618

Wetmire v. Wright........... 207
Weyand’s Hst............... 735
Whalen v. Olmstead.......... 486
Wharton v. Lewis............ 13
Wharton v. McKenzie........ 551
Wheatley ». Calhoun......... 208
Wheaton v. Trumble ......... 247
Wheeler v. Hollis......... 483, 743
Wheeler v. Hotchkiss......... 201
Wheeler v. Raymond....... 7. 240
Wheeler v. State............. 671
Wheeler v. United States...... 612
Wheeler & Wilson Mfg. Co. v.
Monahan ................ 289
Whelan v. Whelan........ 270, 501
Whipp ». State.........0.0.. 159
Whippen v. Whippen....... 96, 100
Whirley v. Whiteman........ 606
Whispell v. Whispell......... 394
Whitacre v. Whitacre........ 376

Whitaker v. Warren....... 510, 513
TABLE OF CASES CITED

[References are to sections]

Whitbeck v. Cook,.......... 250
Whitcomb ». Whitcomb...... 433
White v. Clements........... 710
White v. Equitable Union... .. 31
White v. Henry........... 476, 493
White v. Hildreth............ 289
White, In re................ 652
White v. Murtland. . . .526, 523, 527
White v. Nellis.............. 527
White v. New Bedford Cotton

Waste Corp............... 576
White Sewing Machine Co. »v.

Wooster.............00085 289
White v. Sherman 752, 753, 754, 755
White v. Sullivan Co......... 708
White v. Thomas............ 30
White v. Wagner............ 283
White v. White. . .94, 335, 418,

440, 448
Whitehead v. Jones.......... 761
Whitehead v. St. Louis, etc.,

RY RWCGa2ssead sneara sie 473
Whitelocke ». Baker......... 458
Whitfield ». Whitfield........ 369
Whiting v. Earle............. 472
Whiting v. Nicoll............ 206
Whitmarsh v. Hall........... 555
Whitmore v. Hardin......... 332
Whitney v. Closson.......... 322
Whitney v. Dutch........ 569, 607
Whiton v. Snyder......... 192, 299
Whittelsey v. McMahon...... 169
Whitten v. State............. 685
Whitten v. Whitten.......... 222
Whittlesey v. Fuller.......... 178
Wier v. Marley.............. 481
Wier v. Still..............0.. 68, 69
Wiesmann v. Donald......... 663
Wiggin’s Appeal.............- 179
Wiggins v. Keizer............ 461
Wightman v. Brush.......... 708
Wightman v. Wightman . 35, 46,

. 56, 332
Wilber v. Wilber.......... 210, 215
Wilbur, Matter of........... 80
Wilcox v. Arnold............ 182
Wilcox v. Luco............-- 716

Wilcox v. State.............- 660

Wilcoxon v. Read............ 160
Wild v. Beebe............... 586
Wilde v. Wilde.............. 404
Wilds v. Bogan.............. 129
Wiles v. Wiles............... 231
Wilford v. Phelan......... 168, 222
Wilhelm v. Hardman......... 556
Wilhitev. Wilhite............ 67
Wilhoit v. Hancock.......... 524
Wilkin’s Guardian........ 743, 744
Wilkinson v. Dellenger....... 476
Will of Brush ............... 652
Will of Chafin............ 650, 652
Will of Fenton, Inre......... 654
Will of Scholl ............... 453
Will of Slinger ........... 654, 671
Will of Ward ................ 807
Willard v. EHastham.......... 248
Willard v. Stone........ 10, 20, 28
Willett v. Com............... 624
Willetts v. Willetts. ..... 40, 41, 411
Williams v. Baker............ 195
Williams’ Devisees .......... 761
Williams’ Est., In re......... 464
Williams v. Inabnet.......... 680
Williams v. Harrison.......... 774

Williams v. Hayes... .594, 655, 657

Williams v. Kent............ 180
Williams v. Kimball ......... 457
Williams v. King............. 702
Williams v. Monroe.......... 125
Williams v. McGahay........ 122
Williams v. Motron.......... 772
Williams v. Oates............ 111
Williams v. Shackleford ...... 702
Williams v. State...... 75, 264, 718
Williams v. Urnston ......... 225
Williams v. Walton .......... 733
Williams v. Wells ............ 218
Williams v. Wentworth....... 645

Williams v. Williams . . .36, 60,
107, 117, 130, 148, 282, 356,
357, 366, 367, 415, 426, 474

Williams v. Wilson........... 714
Williamson v. Adams......... 460
Williamson v. Morton........ 161
Williamson v. Williamson. .332, 405
Willis v. Fox................ 750
Xciv

TABLE OF CASES CITED

[References are to sections]

Willisford v. Phelan....... 238, 239
Willson v. Willson........... 445
Wilson v. Coolidge........... 298
Wilson v. Glossup............ 122
Wilson v. Herbert......... 120, 121
Wilson v. Hickman....... 420, 424
Wilson, Inre..............-. 737
Wilson v. Jones.............. 225
Wilson v. King.............. 702
Wilson v. McMillan.......... 477
Wilson v. Mitchell........... 650

Wilson v. Wilson 321, 392, 399, 503

Wilson’s Guard v. Wilson..... 587
Wilton v. Middlesex.......... 509
Wilts v. Welsh.............. 599
Wilworth v. Leonard......... 644
Windleton v. O’Brien......... 751
Winkler v. Fisher............ 508
Winn v. Riley............ 236, 237
Winscom v. Winscom........ 395
Winship v. Winship.......... 337
Winslow v. People........... 774
Winsmore »v. Greenbank...... 148
Winston v. Winston.......... 342
Winter v. Truax............. 763

Winter v. Walter......... 287, 299
Winter v. Winter............ 322
Winters v. Railway Co........
Wireback v. First Nat. Bank.. 642
Wirt v. Dinian........... 133, 183
-Wisconsin Industrial School

for Girls v. Clark County... 628
Wise v. Schlosser............ 18
Wiser v. Lockwood.......... 46
Withers v. Jenkins........... 198
Withrow v. Smithson..... 656, 666

Wittingham v. Broderick..... 293
Woldson v. Larson........ 146, 150
Wolf v. Banereis............. 184
Wolf v. Frank............ 144, 150
Wolff v. Lozier.............. 183
Wolf v. Wolf................ 404
Wollaston v. Tribe........... 270
Wolverton v. State........ 104, 108
Wong Kim Ark, Inre...... “.. 721
Wong Wing ». United States

718, 721
Wong Young Quoy, Inre..... 716

Wood v. Chapman........... 180
_ Wood v. Cole............0 es 59
Wood v. Lee............065- 216
Wood v. Losey..........2045 554
Wood »v. State .............. 108
Wood v. Vance..........-.-- 596

Wood v. Wood. . .835, 367, 434, 743
Woodcock’s Appeal.......... 4638.

Woodcock’s Case...........- 159
Woodell v. Coggeshall........ 529
Woodruff v. Logan........... 589
Woods »v. Trinity Parish...... 604
Woods v. Woods............- 104
Woodward v. Barnes......... 183

Woodward-Holmes Co. ».
Kntidd). 5.24 ceived cwenoasuins 207

Woodward v. Woodward. .239,
400, 540

Woodworth v. Spring. .727, 737, 743

Woolson’s Appeal........... 287
Wootrich v. Freeman......... 165
Word v. Com................ 628
Worrall’s Appeal............ 501
Worrell v. Drake............ 284
Worthington v. Charter Oak L.

TS. (CG ia idence vate a ova 718

Worthington’s Lessee v. Young 182
Worthington v. Mercer... .657, 672

Wotton v. Hele.............. 182
Wragg, Ex parte............. 636
Wray 0: Coxe 3 cee. wet es 126
Wray v. Wray............00. 126
Wrighell v. Sultan of Johore... 717
Wright v. Brown............. 591
Wright v. Fisher... ...674, 678, 679
Wright v. Hicks............. 458
Wright v. Jackson............ 641
Wright v. Leonard........... 133
Wright v. Tuttle............. 591
Wright v. Waller ............ 678
Wright v. Wright 174, 330, 381,

426, 461, 464
Wrynn v. Downey........... "29
Wunderle v. Wunderle........ 714

Wuller v. Chase Grocery Co... 575
Wusnig v. State............. 624
Wyatt v.. Wyatt.......000000. 299
Wyland v. Board............
TABLE OF CASES CITED XCV

' [References are to sections]

Wyman v. Ritchie........... 2 Young v. Foster.......... 106, 108
Wymore v. County.......... 606 Young». Fruse.............. 31
Wyndham v. Lebanon........ 462 Young». Hicks.............. 279
Wynkoop v. Wynkoop........ 130 Young v. Young............. 373
Wynn »v. Sandford........... 410 Youngs v. Youngs. . .358, 359,
362, 673
Xenos v. Wickham........... 17 =Yount v. Yount............. 653
Yunt v. Hartfrunft....... 147, 150
Yale v. Curtiss............. 17, 18
Yale v. Dederer.......... 225,248 Zahorka v. Geith............ 429
Yamataya v. Fisher....... 713,721 Zeph, Matter of............. 702
Yarde v. Yarde.............. 276 = Zetlin v. Zetlin.............. 433
Yeates v. Reed.............. 656 = Zilley v. Dunwiddie....... 452, 493
Yeaton v. Berney............ 718 Zouch v. Parsons... .541, 543,
Yeiser v. Lowe.............. 125 545, 580, 607
York v. Ferner.............. 280 Zule v. Zule................. 455

Yorston v. Yorston.......... 405
DOMESTIC RELATIONS

INTRODUCTORY

STATUS AND THE DOMESTIC RELATIONS IN GENERAL—
STATUS AND DOMICILE CONSIDERED

1. Scope of Subject—In General.

Status has been defined as ‘“‘the legal position of a
party in or with regard to the rest of the community.” }
Thus, every individual is either legitimate or illegitimate,
infant or adult, married or single, sane or insane, citizen or
alien, and as such has legal rights, duties, capacities or in-
capacities, more or less distinct from those of other mem-
bers of the community.” It requires but a moment’s
thought to realize that status of natural persons to a great
extent involves or grows out of what we call the family, and
hence, as civilized society is now organized, the law of
status is largely, though of course not wholly, the law of
the family or of ‘‘ Domestic Relations” as it is commonly
termed in American and English law.* It has been thought
best, therefore, to append the phrase ‘‘status and capac-
ity of natural persons” to the title ‘‘ Domestic Relations,”’
and by adding a few topics to those usually found in books
on that subject to cover, in a general way, substantially

* Brett, J., in Neboyet ». Nugent, L. R. 4 Prob. Div. 11. The at-
tributes or qualities attached to a person by operation of law, regard-
less of his own wishes, constitute his status in law. Minor’s Confl. L.,
sec. 68.

2 As to the different conditions or relations of natural persons that
have at one time or another been regarded as involving status, see
Holland’s Jurisp. (7th Ed.) 308.

3’ That the idea of status is the dominating principle of domestic
relations, see 1 Nels. Div. & Sep., secs. 2 et seq.; Andr. Am. L. (1st Ed.)
631; 2 Austin’s Jurisp. 709, 711.

1 1
2 INTRODUCTORY

the whole law of domestic relations and non-corporate
status and capacity as now administered in this country.

The classification adopted by Blackstone and followed
by Reeve in this country ! distributes the law of domestic
relations under the following general heads:

1. Husband and Wife.

2. Parent and Child.

3. Guardian and Ward.

4. Master and Servant.

To these a recent writer, following the example of
Chancellor Kent, adds a fifth head, Infancy, under which
he states such parts of the law relating to persons under
the age of legal majority as cannot be conveniently dis-
eussed under the more familiar heads.”

So far as the relation of master and servant is concerned,
itis common knowledge that it has ceased to be in any
strict sense a domestic one. Even the distinction be-
tween menials and domestics and other servants, as taken
by Blackstone, who says that “if the hiring in the case of
the menials or domestics be general without any particular
time limited, the law construes it to be a hiring for a
year,” is probably not recognized in this country as part
of the common law.* Furthermore, since the abolition of
slavery it can hardly be said to involve status or even
capacity, except remotely, any more than can partner-
ship or any other purely contract relation. So much of
the subject of master and servant, therefore, as does not
involve the technical apprenticeship of infants ‘ is practi-
cally omitted as properly belonging to treatises on con-
tracts and torts and to special works on employment and
representation rather than to a work on domestic rela-
tions, or even upon persons or status generally.®

1 Reeve’s Dom. Rel.

2 §chouler’s, Dom. Rel. (5th Ed.), sec. 1; 2 Kent’s Com. 233.

8 Adams ». Fitzpatrick, 125 N. Y. 124.

4 See post, secs. 588 et seq.

*See 1 Cooley’s Bl. 267 and note; Schouler’s Dom. Rel. (5th Ed.),
sec. 2, p. 7; Andr. Am. L. (Ist Ed.) 631, 843.
INTRODUCTORY 3

Particular topics of the present subject, like those of all
the more general heads or subdivisions of the law, overlap
other particular topics always treated under other general
titles. Thus, while no work on domestic relations is com-
plete without its chapters on dower and curtesy, neither
is a work on real property, and chapters on the contract
capacity of infants, lunatics and married women are found
both in books on ‘“‘Domestic Relations” or ‘‘Persons”’
and works on contracts.!

The duty of parents to educate their children has been
generally discussed by writers on domestic relations,
and the relation of teacher and pupil has usually been
incidentally considered in that connection. It would seem,

_ however, that the latter relation is often something more
than a mere extension or delegation of the parental au-
thority, and that it is of sufficient importance in itself
to warrant its treatment as a separate topic.

We will therefore treat of domestic relations and non-
corporate status and capacity as embracing the following
subjects:

. Husband and Wife.

. Parent and Child.

Teacher and Pupil.

Infancy.

Persons Non Compotes Mentis and Spendthrifts.

Persons Deprived of Special Senses.

Guardian and Ward.

Citizens and Aliens.

Convicts.

. Status in Relation to Sex.

It may be well to say a few words here in relation to
sex. As affecting legal status or capacity apart from
marriage, sex has received little separate treatment in

bb SON OG R oN eS

1 Difficulties of this kind are unavoidable, for the classification of
legal principles and phenomena, particularly as belonging to the law
of persons on the one hand, or the law of things upon the other, depends
largely upon considerations of convenience or the view point of the
writer.
4 INTRODUCTORY

English and American law books. Women, considered
simply as such, have with few exceptions been upon a
parity with men in private law.! The public law, how-
ever, has exacted from them no duties save that of paying
taxes and performing such duties as can be discharged by
deputy,? though the tendency of modern sentiment and
legislation is toward an enlargement of their political
rights, duties and capacities.’

It is chiefly in the relation or status of marriage and
the rights and duties directly or collaterally involved
that the civil inequality of the sexes has been and con-
tinues to be most prominent, and it is these inequalities,
often bearing more heavily on the woman than the man,
though sometimes the reverse, that it is a leading purpose
of this work to explain.

One problem, however, based upon mere difference of
sex seems to require special notice, and that is the validity
of such laws as regulate the occupations of women and
their hours of labor. Not only is admission to practice
law in the nature of a privilege rather than a right, but it
appertains more to public than to private law. The
authorities disagree, however, as to the right of females
to be admitted to practice as attorneys when otherwise
qualified unless the statutes, as is now the case in most
states, plainly give or withhold it.47 And though women

1 The preference of the English law of descent for males over females,
like primogeniture, doubtless had its basis, if not its origin, in the
feudal policy; a preference little manifested here and obsolete to-day.
See 2 Pol. & Mait. Hist. Eng. L. (2d Ed.) 260, 261.

*See 1 Pol. & Mait. 482 et seq.; Holland’s Jurisp. (7th Ed.) 308;
Chorlton v. Lings, L. R. 4 C. P. 374.

3See Andr. Am. L. (1st Ed.), sec. 527. In Colorado, Idaho, Wyo-
ming and Washington women enjoy the right of equal suffrage.

‘See denying the right, Ex parte Robinson, 131 Mass. 376, 41 Am.
R. 239; Bradwell v. Illinois, 16 Wall. (U. 8.) 130; In re Lockwood, 9
Ct. Cl. 346, 154 U. S. 116; In re Leonard, 12 Oreg. 93, 53 Am. R.
323; Ex parte Goodell, 39 Wis. 232. Conceding it, see In re Kilgore, 17
Weekly Notes Cas. (Pa.) 475; Ex parte Hall, 50 Conn. 131, 47 Am. R.
625; In re Thomas, 16 Col. 441, 13 L. R. A. 538.
INTRODUCTORY 5

by the common law are citizens, they have been from time
immemorial destitute of political power under English
law and hence ineligible to public office.!| They could not
take part in the administration of justice as judges or
even as jurors, with the single exception that a jury of
matrons might be impaneled upon a suggestion of preg-
nancy. Women, however, have been held eligible even
at common law to certain offices of an administrative
character involving such duties as women are competent
to perform,? and their powers and privileges as to office
holding have in some states been wisely enlarged by
statute, notably as regards the administration of our
educational system, and in connection with the enforce-
ment of certain of our police regulations.

Under statutes excluding women from purely civil oc-
cupations generally lawful for men, or regulating their
hours of labor therein, grave constitutional questions
have arisen. While laws excluding them from direct
participation in the retail liquor traffic have always been
upheld upon obvious grounds,’ their exclusion from occu-
pations that are not inherently vicious or likely to corrupt
the public morals, or the restriction of their hours of
labor therein, has occasioned difficulty. Statutes reason-
ably restricting the hours of female labor in factories
and workshops have usually been upheld as valid police
regulation regardless of the validity of similar laws when
applied to adult males; and though statutes arbitrarily

* The Queen of England has, of course, been an exception to this rule.
Ex parte Robinson, supra.

2See Mechem’s Pub. Officers, sec. 73; Ex parte Robinson, supra;
State cx rel. Jordon (Neb., 1910), 125 N. W. 619; State v. Hostetter,
137 Mo. 636, 38 L. R. A. 208, and note.

3 Cronin v. Adams, 192 U.S. 108; Ex parte Felchlin, 96 Cal. 360, 31
Am. St. R. 223, and notes to Gastineau v. Com., in 49 L. R. A. 111;
Hoboken v. Goodman, 68 N. J. L. 217.

4Com. v. Hamilton Mfg. Co., 120 Mass. 383; Weinham 2. State, 65
Neb. 394, 58 L. R. A. 825; State ». Muller, 48 Oreg. 252; Muller ».
Oregon, 208 U. S. 412, and note thereto referring to state, federal and
foreign statutes on pp. 419 and 420. Compare Ritchie v. People, 155 Iil.
6 INTRODUCTORY

excluding adult females from lawful occupations are void
as in violation of various constitutional provisions, in-
cluding those relating to life, liberty and the pursuit of
happiness, deprivation of property without due process
of law, and the equal protection of the laws, it seems that
statutes excluding them from such occupations as are
specially and plainly calculated to impair their health
and deteriorate the race in view of the inherent peculiari-
ties and special functions of the sex, as employment in
mines and quarries, should be upheld as a proper exercise
of the police power.!

DOMICILE CONSIDERED IN ITS RELATION TO STATUS

3. Nature and Significance of Domicile.

The domicile of a natural person, as used in interna-
tional and interstate law, is the state or country where
he actually or constructively has his permanent home.?
Domicile is distinguishable both from residence and citi-
zenship. Thus, an Englishman who comes to Boston for
temporary purposes of business or pleasure can hardly
be said to have either a domicile or residence there. If
he should remain a considerable time in Boston, however,
but without intending to remain permanently, he would

98, 46 Am. St. R. 415, 29 L. R. A. 79, holding an eight-hour law for
women invalid; Tilt v. People, 155 Ill. 98 (1895); People v. Williams,
189 N. Y. 137. But see Wyman ». Ritchie, 244 Ill. 509, upholding a
ten-hour law for women. See generally as to the validity of statutes
restricting the hours of adult labor, Holden ». Hardy, 169 U. S. 366;
Freund’s Police Power, secs. 316 et seq.; Black. Const. L. (8d Ed.) 415;
Lochner v. New York, 198 U. 8. 45, reversing People v. Lochner, 177
N. Y. 145, 101 Am. St. R. 773.

1See Cooley’s Prin. Const. Law, 231; Muller ». Oregon, supra;
Freund’s Pol. Power, sec. 314.

2 See Minor’s Confl. L., sec. 26, and authorities cited. Story defines
domicile as the place where a person has his true, fixed and permanent
home and principal establishment, and to which, if he is absent, he has
the intention of returning. Confl. L., sec. 41. See also Bell ». Kennedy,
1H. L. (Scotch) 307; Borland v. Boston, 132 Mass. 89, 42 Am. R. 424;
Hindman’s Appeal, 85 Pa. 466, and authorities cited. See also the
elaborate discussion in Jacob on Dom.,’ secs. 57 et seq.
INTRODUCTORY : 7

have a residence there, but not a domicile; but if he settled
there with the intention of making it his permanent
home, his domicile would be in Boston, though his citi-
zenship would remain English until he became naturalized
under federal laws.!| The term residence, however, is
often used in statutes and law writings as coterminous
with domicile.?

As a legal concept domicile is highly important, for it
often determines:

1. The political rights and allegiance of the indi-
vidual.

2. His civil status, whether married or single, legiti-
mate or illegitimate, sui juris or non sui juris.

3. The distribution of his personalty at his death.

4. His business, testamentary or contractual capacity.’

4. Kinds of Domicile and General Rules Touching.

Domicile is either (1) of origin, or (2) of choice. The
domicile of origin is that which is determined by law at
the time of birth. That it arises without the volition of
the individual results from its very nature. In the case
of a legitimate child it is ordinarily the domicile of the
father at the time of its birth; in the case of a bastard, of
the mother.

The domicile of origin is always retained until another
is acquired. One who has reached full age and is free
from legal disabilities may, by his own voluntary act,
acquire a new domicile, termed the domicile of choice.
An infant, however, may lose his domicile of origin and
acquire a new one, but this new domicile is not of choice,
but arises by act or operation of law and is sometimes
called a constructive domicile. Thus, the domicile of an
infant who is legitimate follows and changes with that

1 See post, sec. 711.

2 See post, sec. 336; Borland ». Boston, supra.

3 See Jacob on Dom., Chap. II; Abington v. N. Bridgewater, 23 Pick.
(Mass.) 170-176. 2

4 See post, secs. 462, 483.
8 INTRODUCTORY

of its father; of a bastard, with that of its mother; ! and
a woman, whether she be infant or adult, acquires upon
marriage the domicile of her husband regardless of her
domicile of origin or choice, and her domicile commonly
changes with his.?

It should be constantly borne in mind in considering
questions involving domicile:

1. That no natural person is ever without a domicile.
He may be homeless or not, in the ordinary sense, but
legally his domicile will be found in some particular state
or country.®

2. That no natural person can have more than one
domicile at a time.‘ 3

3. That a domicile once fixed is retained until a new
one is acquired.®

4. That mere intention to change one’s domicile to
a given state or country is not sufficient to effect such
change, nor is mere physical presence or residence there.
The party must have been present at the place of domicile
with the intention to make it his permanent home. Phys-
ical presence must be coupled with the animus manendi.®

The proof of domicile is not within the scope of the
present discussion. It is enough to say that residence
and the transaction of business at a given place, the
presence of his family, the payment of taxes and his
exercise of the right of suffrage there, are not necessarily

1 See post, secs. 462, 483. As to the power of the guardian to change
his ward’s domicile, see post, sec. 743.

2 As to this and as to the wife’s right to acquire a separate domicile
under exceptional circumstances, see post, secs. 117, 334.

3§ee Dicey’s Confl. L. 88, 149; Minor’s Confl. L., sec. 27. If no
other domicile can be assigned it will be the domicile of origin. First
Nat. Bank ». Baleomb, 35 Conn. 351.

4 The exceptions to this rule are probably more apparent than real as
Professor Minor suggests. See Minor’s Confl. L., sec. 28; post, sec. 334.

’ Abington v. N. Bridgewater, 23 Pick. (Mass.) 170, 177; Borland v.
Boston, 132 Mass. 89, 42 Am. R. 424; Dupuy ». Wurtz, 53 N. Y. 556.

6 Bell ». Kennedy, 1 H. L. (Scotch) 307; Gilman ». Gilman, 52 Me.
165, 838 Am. D. 502; Dupuy ». Wurtz, supra.
INTRODUCTORY ‘ 9

conclusive that one is domiciled there, though they are
admissible in proof and are frequently conclusive, at
least where there is no countervailing evidence.

5. Significance of Domicile in Relation to Status.

Usually the status of an individual is dependent upon
his own domicile or that of some other person with whom
his status is legally connected or identified.” Brief general-
izations here are particularly difficult, for whether the
law of any state will recognize within its borders a status
acquired or alleged to have been imposed elsewhere, or
some or all of its incidental rights, capacities or incapaci-
ties, must depend, as a rule, upon the public policy of the
place where the party is or assumes to act, the character
and situs of property rights involved, and the rights and
interests of its own citizens. It may be stated generally,
however:

1. That capacity to marry and the formal requisites
of marriage are generally tested by the law prevailing
where the marriage is entered into, and not by the law
of the domicile of the parties, or either of them, and that
a marriage valid where entered into will be recognized
as creating the marriage status everywhere.* The rights
which either spouse acquires by the fact of marriage in
the personality of the other, however, depend ordinarily
upon the law of the matrimonial domicile. Rights in
real property and capacity to deal with it depend upon
the law of its physical situs.’

2. That the dissolution of the marriage relation or
status by divorce depends for its validity upon the fact
that the domicile of at least one of the spouses is within
the divorcing state, certainly so far as the recognition of
such dissolution elsewhere is concerned.®

1See Minor’s Confl. L., sec. 64, and authorities cited; Jacob on Dom.,
Chap. XX; In re Tootal’s Trusts, 23 Ch. Div. 532.

2 See Jacob on Dom., sec. 29; Ross v. Ross, 129 Mass. 2438, 246.

3 See post, Chap. VIII.

4See post, sec. 301.
5 See post, secs. 333 et seq.
10 INTRODUCTORY

3. The legitimacy of a child depends, as a rule, upon
the law of its parents’ domicile at its birth or at the time
of its subsequent legitimation.!. The right of a bastard
to inherit lands depends upon the law of the place where
they are situated, but his right to inherit personalty
usually depends upon the law of the decedent’s last
domicile rather than the domicile of the child, or the
actual situs of the property itself.?

4. Adoption is a proceeding effecting status, and its
validity usually depends upon the fact that at the time
of adoption either the adopted child or the adopting parent
was domiciled in the state where the adoption took place.?

5. Capacity to make contracts depends as a rule upon
the lex loci contractus.‘

6. Testamentary capacity as to realty, and indeed
the validity of a will of land as to form and execution,
depend upon the lex rei site. Capacity to dispose of
personalty by will, however, and the formal requisites
of its testamentary disposition depend upon the law of
the testator’s last domicile. Intestate succession in the
case of movables is governed by the law of the decedent’s
last domicile.

1See post, sec. 457.
2 See post, sec. 457.
3 See post, sec. 465.
4See post, secs. 301, 540.
CHAPTER I

EXECUTORY CONTRACTS TO MARRY AND TRANSACTIONS
AFFECTING FREEDOM OR SECURITY OF MARRIAGE

6. The Contract to Marry—In General.

The executory contract to marry—the engagement or
promise of marriage, or the betrothal as it is often called—
is to be sharply distinguished from marriage itself. Strictly
speaking, it gives rise to no status and the relation that
it creates is scarcely more sacred in the eye of the law,
however otherwise in morals, than that which results
from a mere bargain for property or service, and its va-
lidity is mainly tested by the general law of contract.?
Marriage, on the other hand, creates a status to which
rights and duties attach that are beyond the power of
the parties to modify or throw off without the consent
of the state.? While the relation between engaged parties,
therefore, is not strictly a domestic one, the fact that
an engagement normally precedes marriage and that it.
is not always easy to distinguish between the marriage
engagement and marriage itself, the former often ripen-
ing into the latter with few or none of the formalities
which usually and normally characterize a wedding,’
renders this chapter almost necessary to a proper under-

1 Morgan ». Yarborough, 5 La. 316. Unlike a husband, a man has
no cause of action against one who seduces or debauches his intended
wife or alienates her affections, Case v. Smith, 107 Mich. 416, 61 Am.
St. R. 341, 31 L. R. A. 282, nor is a third person liable for personal
injuries inflicted upon her pending her engagement, to one who marries
her before suit. Mead v. Baum (N. J., 1908), 69 Atl. R. 962. And see
next section.

2 See post, secs. 34, 326, 440.

3 See. post, sec. 90.

11
12 CONTRACTS TO MARRY

standing of much that follows, and affords the principal
reason for its inclusion here.!

It should also be noted that an engagement of marriage
naturally implies mutual confidence. The relation of
betrothed persons may therefore be regarded as in some
sense fiduciary and peculiarly liable to be taken advantage
of as a means of fraud, the most serious being the seduction
of the woman, a matter later explained.2, Upon this
principle also antenuptial agreements and settlements
are closely scanned for deception and undue influence,
at least in favor of the woman.’ In fact it seems that if
either party pending the engagement obtains a substantial
pecuniary advantage from the other for a consideration
inadequate on its face, and then breaks the engagement,
the latter may have relief on the ground of fraud.4

7. Inducing Breach of Marriage Promise.

Generally no action lies against one who persuades a
party to a subsisting engagement of marriage to break it.®
No very sound reason is perceived, however, why one who
maliciously induces another to break such a contract
should not be liable to the party injured in states where

1A subsisting engagement of marriage seems to have been for a
considerable time an impediment in English law under the name of
“precontract” to marriage of either of the betrothed parties with a
third person. While the marriage with the latter was not void, it ap-
parently was liable to be annulled by the ecclesiastical courts and due
celebration of the earlier contract compelled. The law was changed
by 82 Henry VIII, Chap. 38, sec. 2, and revived by 2 & 3 Edw. VI,
Chap. 23, and finally abolished by 4 Geo. IV, Chap. 76, sec. 27. See 1
Bish. Mar. Div. & Sep., sec. 280, and note; Collins 7. Jessot, 2 Salk.
437, in 6 Mod. 155. As to the effect of betrothal in early New England,
see 2 Howard’s Hist. Mat. Inst. 180.

2 See post, secs. 29, 517 et seq.

*See post, sec. 276; Fisher ». Koontz, 110 Ia. 498; Shea’s Appeal,
121 Pa, 302, 1 L. R. A. 422; Deller v. Deller, 141 Wis. 255, 260, and
authorities cited.

“1 Bigelow on Fr. 351; Rockafallow » Newcomb, 57 Ill. 186.
Compare Atkins ». Withers, 94 N. Car. 581.

5 Cooley on Torts (2d Ed.), 277.
CONTRACTS TO MARRY 13

malicious interference with contracts generally is held
to give a cause of action.! It seems to be conceded, how-
ever, that if one by false and damaging charges, not
actionable per se, succeeds in breaking up a marriage
engagement, the loss of the marriage is such special dam-
age as will give a right of action for the defamation.’

8. Peculiarities of the Contract.

While the agreement to marry is mainly governed by
the general law of contract, still, like the contract of serv-
ice, bailment or insurance, it has its special characteris-
tics growing out of the exceptional nature of the under-
taking * and the peculiar consequences of its breach,’
which demand something of detail for their practical
understanding.» Furthermore, there seems to be a grow-
ing tendency to regard executory contracts of marriage
as affected by considerations of public policy which until
late years have been little recognized; a policy which is
reflected in recent marriage legislation, having for its
object the diminution of disease, insanity and pauperism
through restrictions upon the marriage of the unfit.®

9. Parties.

The parties must of course be of opposite sexes, but
otherwise their competency is usually tested, provided
they may lawfully marry, by the general law of contract,
and not by that which governs their competency for

1See Shepherd v. Wakeman, 1 Sid. 79, decided on the ground of
fraud in representing that the plaintiff was already married. See also
Leonard v. Whetstone, 34 Ind. App. 383.

2 Newell’s Def. Libel & Sland. 851; Moody v. Baker, 5 Cow. (N. Y.)
351. See also Atwater v. Macintosh, 120 Mass. 177. As to the im-
munity of parents as distinguished from strangers see Leonard 2.
Whetstone, supra.

8 See ante, sec. 6; post, secs. 26, 27.

4See post, sec. 25.

5 See Morgan ». Yarborough, 5 La. 316.

6 Grover v. Zook, 44 Wash. 489 (1906), 120 Am. St. R. 1012, and
note to that case in 7 L. R. A. (N. 8.) 582. See and compare post,
sec. 15, with post, sec. 68.
14 CONTRACTS TO MARRY

actual marriage, which, under both common law and most
modern statutes, is often determined by quite different
rules. Thus, the marriage promises of infants are void-
able, like their other contracts for non-necessaries, even
though they might be capable of entering into an executed
contract of marriage.!

10. The Consideration.

The consideration for a promise of marriage is normally
a promise of marriage from the other side. If any other
consideration be superadded it must be lawful, as will
later appear.?

A conditional promise on the one side will support an
absolute promise on the other, though no action can be
brought for breach of such conditional promise unless it
is shown that the condition was fulfilled.*

The marriage promise of a minor being voidable merely
and not void is a sufficient consideration for the corre-
sponding promise of an adult.*

11. Legality of the Contract to Marry.

A promise to marry in view of past seduction is valid,®
but a promise in consideration of future illicit intercourse
is illegal and void, whether such promise was preceded by
seduction or not. But though a promise of marriage
upon an illegal or immoral condition is void, a subsequent
promise without it is valid.’

1 See post, sec. 39; Reish ». Thompson, 55 Ind. 34; Rush ». Wick, 31
Ohio St. 521, 27 Am. R. 523; Frost ». Vought, 37 Mich. 65.

2 See post, next section.

5 Frost v. Knight, 7 L. R. Exch. 111; Gring v. Lerch, 112 Pa. 244, 56
Am. R. 314. That a frivolous or immaterial condition may be disre-
garded, see Bennett v. Beam, 42 Mich. 346, 36 Am. R. 442. See as to
conditional promises, post, sec. 21.

‘Willard v. Stone, 7 Cow. (N. Y.) 22, 17 Am. D. 496; post, sec. 559.

5 Hotchkiss v. Hodge, 38 Barb. (N. Y.) 117, 122.

* Burke 2. Shaver, 92 Va. 345, and authorities cited; Kurtz 0. Frank,
76 Ind. 594, 40 Am. R. 275.

7 Judy »v. Sterrett, 153 Ill. 94; Leaman v. Thompson, 43 Wash. 579.
CONTRACTS VO MARRY 15

A contract to marry by one who is known to have a
lawful husband or wife is void as against public policy
as to both parties, even though it is conditional upon
the married party obtaining a divorce, or the death of
the obstructing consort.'. But though one party was
married at the time of the engagement, the other may
bring an action either for breach of promise or for de-
ceit if ignorant of the fact when the engagement took
place.

Where the parties are so related that a marriage be-
tween them would be illegal, the contract is void, pro-
vided both knew the fact at the time of the engagement.
But if one party only knew it and concealed it from the
other, he would doubtless be liable to an action, either
for breach of promise or deceit.’

An engagement to marry in the face of a local statute
or decree of divorce prohibiting marriage of a divorced
party, either generally or for a limited time, is illegal and
void.

12. Fraud and Deceit, in General.

So far as fraud as a vitiating element is concerned, the
contract to marry is governed by quite different con-
siderations from marriage itself. An actual marriage
can be set aside, as a rule, only for deceptions of the
grossest nature, while a contract to marry may be re-
scinded for misrepresentations and concealments scarcely
more serious than would render voidable an ordinary
business agreement. Tésfollows, therefore, that whatever

1 Paddock v. Robinson, 63 Ill. 99, 14 Am. R. 112; Johnson ». Iss, 114
Tenn. 114, 108 Am. R. 801; Noice v. Brown, 38 N. J. L. 228, 20 Am. R.
388; Brown v. Odill, 104 Tenn. 250, 253, 78 Am. St. R. 914.

2 Milward v. Littlewood, 5 Exch. 773; Kelley v. Reilly, 106 Mass.
339, 8 Am. R. 336; Pollock v. Sullivan, 53 Vt. 507, 38 Am. R. 702.
Compare Blauttacher v. Saal, 29 Barb. (N. Y.) 22.

3 Coover v. Davenport, 1 Heisk. (Tenn.) 368.

4 Haviland ». Halstead, 34 N. Y. 643. See Van Voorhis ». Brintnal,
86 N. Y. 18, 40 Am. R. 505, as to the executed contract of marriage.
See also post, secs. 64 et seq.

\
16 CONTRACTS TO MARRY

of fraud would be ground for avoiding an actual marriage,
as later explained,! would render voidable a promise to
marry, though less would suffice.

13. Same—Misrepresentation.

Positive misrepresentation of a material fact knowingly
made by either party touching his or her health, wealth,
character, social position, habits or previous history, by
which the other party is led to enter into the contract
renders it voidable at the option of the latter.?

14. Same—Concealment.

As a general rule, however, it is the duty of one promis-
ing marriage to inform himself concerning the character,
history, means and social position of the other party to
the engagement, and it is not the duty of the latter to
volunteer such information as to these and such similar
matters as due inquiry would disclose.? But if a party
has undertaken, either with or without inquiry, to inform
the other as to his or her past history or life, or present
health, wealth or position, the disclosure must be true
as to all material facts, and nothing must be willfully
concealed which is necessary to a correct understanding
of the matters to which they relate.

As a rule, however, non-disclosure by the woman of
her previous unchastity which was unknown to the man
when the engagement took place will justify him in re-
scinding the contract, provided he acts promptly upon
discovery of the fact.° But a promise to marry a woman

1 See post, secs. 68 et seq.

* Wharton v. Lewis, 1 C. & P. 529, 12 E. C. L. 459; Van Houten ».
Morse, 162 Mass. 414, 44 Am. St. R. 373, 26 L. R. A. 430.

*Van Houten v. Morse, supra; Gring ». Lerch, 112 Pa. 244, 249, 56
Am. R. 314; Roper v. Clay, 18 Mo. 383, 59 Am. D. 314.

‘Van Houten ». Morse, 162 Mass. 414, 44 Am. St. R. 373, and cases
cited, and note to same case in 26 L. R. A. 432. ,

5 Burnett v. Simpkins, 24 Ill. 264; Snowman v. Wardwell, 32 Me.
275; Espey v. Jones, 37 Ala. 379; Bell v, Eaton, 28 Ind. 468, 92 Am, D.
329.
CONTRACTS TO MARRY 17

knowing her to have been unchaste is binding.’ If either
party to the marriage engagement knowingly conceals
his or her impotency, it is ground for rescission,? and
probably for an action of deceit, and so of any other dis-
ease or physical defect which would be likely to render
the marriage dangerous to the other party or to the mar-
riage offspring, or be reasonably certain to frustrate its
happiness.

A marriage engagement entered into under duress is
voidable merely and not void.‘

15. Mistake—Disease Making Marriage Dangerous.

Innocent mistake by one party as to the identity of
the other would doubtless invalidate an engagement to
marry; and if a party without knowing or having good
reason to know of his impotency exchanges promises
with another in good faith, neither party should be bound,
as the contract rests upon mutual mistake of fact.

If one promises to marry in good faith, but afterward
discovers that he has a disease, not due to his criminal
or immoral conduct pending the engagement, unfitting
him for the duties of marriage or rendering it dangerous
to himself or to the marriage offspring, he may withdraw

_ from the contract without liability, or insist upon a post-
ponement of performance, depending upon whether it is
curable or not, and so if the plaintiff contracts such disease,
for there is a public policy involved in both cases beyond
the mere technical rights of the parties.®

1 Snowman v. Wardwell, supra; Sprague »v. Craig, 51 Til. 288; Sheahan
v. Barry, 27 Mich. 217.

2See post, secs. 47, 49; Gring v. Lerch, 112 Pa. 245, 56 Am. R. 314.

3 See post, next section, and sec. 70.

4McCrum »v. Hildebrand, 85 Ind. 204; Tilley ». Damon, 11 Cush.
(Mass.) 247.

§ Gring v. Lerch, 112 Pa. 244, 56 Am. R. 314; Goddard v. Westcott,
82 Mich. 180; Allen v. Baker, 86 N. Car. 91, 41 Am. R. 444; Shackel-
ford v. Hamilton, 93 Ky. 80, 15 L. R. A. 531, 40 Am. St. R. 166, criti-
cising Hall ». Wright, El., Bl. & El. 746, 96 E. C. L. 746; Trammel 2.
Vaughn, 158 Mo. 214, 81 Am. St. R. 302, 51 L. R. A. 854, and cases

2
18 CONTRACTS TO MARRY

16. Formal Requisites of the Contract—Statute of
Frauds.

No formalities are requisite to a valid contract to marry
unless it falls within the provisions of the statute of frauds.
The fourth section of the English statute, reénacted in
the majority of our states, requires that all contracts
made in consideration of marriage shall be proved by
writing. Mere mutual promises of marriage are not
within this clause, as the consideration for the promise
of one person to marry another is not marriage, but a
promise of marriage on the other side.!_ But if the promise
to marry is on condition that something else be done,
as that property be settled upon the promisor, the whole
transaction including the promise to marry is void under
the statute of frauds, unless evidenced by writing.?

By the same section of the English statute, all contracts
not to be performed within a year from the making thereof
must be proved by writing, and this provision is reénacted
in most of our states. A contract to marry is fully within
this clause if the intention of the parties is clearly that
they are not to marry within a year. No writing is
necessary, however, from the mere fact that the parties
do not marry within the year, or even from the fact that

cited. Compare Smith v. Compton, 67 N. J. L. 548, 58 L. R. A. 480.
At least one case goes further and holds that in view of local statutes
having for their purpose the prevention of the spread of pulmonary
tuberculosis, on grounds of public policy a man is not liable for breach
of promise, even where he knew that the woman had such disease when
he entered into the engagement, her ailment being incurable. Grover
v. Zook, 44 Wash. 489, 7 L. R. A. (N. 8.) 582, 120 Am. St. R. 1012.

1 Browne’s Stat. Fr. (5th Ed.), sec. 215a; Clark ». Pendleton, 20
Conn. 495.

* See post, sec. 272; Chase v. Fitz, 132 Mass. 359; Mallory v. Mal-
lory, 92 Ky. 316.

* Lawrence v. Cook, 56 Me. 187, 96 Am. D. 443; Nichols v. Weaver,
7 Kan. 373; Derby v. Phelps, 2 N. H. 516; Paris v. Strong, 51 Ind. 339;
Ullman ». Meyer, 10 Fed. Rep. 241. In New York this clause of the
statute has been construed not to apply to promises of marriage.
Brick ». Ganner, 36 Hun (N. Y.), 52. Compare Ullman ». Meyer,
supra.
CONTRACTS TO MARRY 19

they do not expect to do so. The possibility of their
marrying within a year pursuant to their contract must
be excluded, directly or indirectly, by its terms.!

17. The Agreement—Mutuality.

Mere courtship does not constitute an agreement to
marry, though it may be evidence of such an agreement.?
The mere intention of one party to marry uncommuni-
cated to the other is not an offer of marriage,’ nor is the
expression of such intention to a third person alone suffi-
cient, though it may be when taken in connection with
other facts.* :

The promise or offer must be accepted, for unless both
parties are bound, neither is bound for want of mutuality.‘
The acceptance, like the offer, must in some way be com-
municated to the party offering or his agent in that behalf,®
within a reasonable time after the offer is made.’

18. Same—Proof of the Contract to Marry.

Aside from the testimony of the parties or others as
to an exchange of express promises, the evidence of the
contract to marry is often largely or wholly circumstantial.
In fact there may be no proof of any definite exchange of

1 Lawrence v. Cook, supra; Clark v. Pendleton, 20 Conn. 495; Black-
burn v. Mann, 85 Ill. 222.

2 Burnham »v. Cornwall, 16 B. Monr. (Ky.) 284, 63 Am. D. 529;
post, sec. 18.

* Cole v. Cottingham, 8 C. & P. 77, 34 E. C. L. 618; Yale v. Curtiss,
151 N. Y. 598.

«Cole v. Cottingham, supra. .

5 Yale v. Curtiss, supra; Vineall v. Veness, 4 F. & F. 344; Weaver v.
Bachert, 2 Pa. 80,44 Am. D. 159. Itis held in England that whcre
the promise to marry is under seal, it requires no acceptance, or at
least cannot be revoked. Atkins v. Farr, 1 Atk. 287; Cock v. Richards,
10 Ves. Jr. 429; 1 Bish. Mar. Div. & Sep., sec. 210. See Xenos ». Wick-
ham, L. R. 2 H. L. 296, as to sealed offers in general. But this doc-
trine is repudiated in many of our states and offers under seal may be
withdrawn at any time before acceptance.

® Wells v. Padgett, 8 Barb. (N. Y.) 323.

7Vineall v, Veness, 4 F. & F. 344,
20 CONTRACTS TO MARRY

express promises, but merely of a tacit mutual under-
standing.!

To state all the circumstances that have, singly or in
combination, been held sufficient to prove an engage-
ment of marriage would serve no useful purpose. Gener-
ally, however, the mere acts or statements of the plain-
tiff in the absence of the defendant, and not shown to
have been known by or communicated to him, are inad-
missible.2 Aside from this it is enough that the jury are
satisfied from the evidence that the parties, either expressly
or impliedly, exchanged reciprocal promises of marriage
and that the defendant violated the contract thus formed.’

19. Breach of the Contract to Marry.

A promise to marry, no time of performance being fixed,
is a promise to marry within a reasonable time upon
request,‘ and what is a reasonable time depends upon the
facts and circumstances of the particular case, including
the age, health, means and prospects of the parties.°
Even though the agreement be to marry at a particular
time, mere failure to marry at that time unaccompanied
by acts or conduct showing an intention to abandon the
contract is not necessarily a breach, provided there is
some good and sufficient reason for delay.°

1 Perkins v. Hersey, 1 R. I. 493; Blackburn v. Mann, 85 Ill. 222;
Homan »v. Earle, 53 N. Y. 267; Yale v. Curtiss, 151 N. Y. 598.

2 Burnham v. Cornwell, 16 B. Monr. (Ky.) 284, 63 Am. D. 529, and
notes at page 538; Russell ». Cowles, 15 Gray (Mass.), 582, 77 Am. D.
391; Cates ». McKenney, 48 Ind. 562, 17 Am. Rep. 768.

’ Generally as to conduct from which an engagement of marriage
may be inferred, see 1 Bish. Mar. Div. & Sep., secs. 196 et seq.; 18
Cent. L. Jour. 442; Perkins v. Hersey, 1 R. I. 494; Leaman ». Thomp-
son, 43 Wash. St. 579; Clark ». Pendleton, 20 Conn. 495; Homan ».
Earle, 53 N. Y. 267; Burnham v. Cornwell, 16 B. Monr. (Ky.) 284,
63 Am. D. 529, and notes at page 538; Wise v. Schlosser, 111 Ia. 16,
and cases in the preceding note.

‘Blackburn v. Mann, 85 Ill. 222; Bennett ». Beam, 42 Mich. 346,
36 Am. R. 442.

’ Wagenseller ». Zimmers, 97 Pa. 465.

6 Kelley v. Renfro, 9 Ala. 325, 44 Am. D. 441; Stone ». Appel, 12
CONTRACTS TO MARRY 21

If the promise is general, the plaintiff must allege and
prove her willingness and readiness to marry the defend-
ant and her offer to do so and his refusal, express or im-
plied, unless his prior declarations or conduct are tanta-
mount to such refusal.!_ Where the plaintiff is the woman,
no direct or formal notice of readiness to marry or demand
of performance is required, for something is due the nat-
ural modesty of the sex. Whatever, therefore, proceed-
ing from her to the defendant, directly or through those
authorized to act for her, reasonably appraises him of her
readiness and desire for the consummation of the con-
tract is sufficient.”

20. Same—Anticipatory Breach.

Where, before the time fixed for the wedding the de-_
fendant unequivocally declares that he will not marry
the plaintiff, the contract to marry is broken and an action
will lie without waiting for the time of performance to
arrive,? and the same is true where he marries another
without the plaintiff's consent,‘ or has ckeased his atten-
tions under such circumstances as to show that he does
not intend to perform his contract.5

21. Same—Conditional Promises.
If a contract is to marry upon a condition precedent,

Ill. App. 582; Jones ». Leyman, 123 Ind. 569; Trammel ». Vaughan
158 Mo. 214, 81 Am. St. R. 302, 51 L. R. A. 854.

1 Burks v. Shain, 2 Bibb (Ky.), 341, 5 Am. D. 616; Weaver v. Bach-
ert, 2 Pa. 80, 44 Am. D. 159; Graham ». Martin, 64 Ind. 567; Adams ».
Beverly, 123 Ind. 368; Wagenseller v. Zimmers, 97 Pa. 465.

2 Prescott ». Guyler, 32 Ill. 312; Lahey v. Knott, 8 Oreg. 198; Cole ».
Holliday, 4 Mo. App. 94; Graham ». Martin, supra.

3 Frost v. Knight, L. R. 7 Exch. 111; Burtis ». Thompson, 42 N. Y.
246, 1 Am. R. 516; Anderson v. Kirby, 125 Ga. 62, and cases cited;
Holliday ». Griffith, 32 Ia. 409, 7 Am. R. 208; Burke v. Shaver, 92 Va.
345.

4Short ». Stone, 8 Q. B. 358; Brown v. Odell, 104 Tenn. 250, 52
L. R. A. 660, 78 Am. St. R. 914; Oritz v. Navarro, 10 Tex. Civ. App.
195.

5 See Wagenseller », Zimmers, 97 Pa. 465; Willard v. Stone, 7 Cow.
(N. Y,) 22, 17 Am. D. 496.
22 CONTRACTS TO MARRY

no action will lie unless the condition has been fulfilled
or unless it is of such a character that it may be deemed
frivolous or immaterial,! or has been waived.? It has
been held that where the parties engage themselves with
the express understanding that they will be married in
accordance with the customs and rites of their particular
religion, an absolute refusal of one of them to so marry
is a breach releasing the other and will support an action
by the latter.®

22. The Defenses—Unchastity.

Ordinarily a man promises marriage with the implied
understanding that the promisee is chaste, and may avoid
his contract upon discovering her prior unchastity with
third persons.‘ It follows that if she is afterward loose
with others, he is entitled to rescind unless he connived
at her misconduct.’ An engagement entered into or
continued with knowledge of the woman’s previous un-
chastity, however, is a waiver of the offense,® and un-
chastity between the parties is clearly no defense.’

As the man as well as the woman may sue for breach of
promise, we should say that his incontinence with a third
person pending the engagement would warrant a rescission
by her.

23. Same—Drunkenness and Other Misconduct.
Where the plaintiff indulged excessively in drink, though

1 See ante, sec. 10, note 3.

2 Cole v. Cottingham, 8 C. & P. 75, 34 E. C. L. 297; Frost v. Knight,
41 L. R. Exch. 111, 41 L. J. Exch. 78; Gring ». Lerch, 112 Pa. 244, 56
Am. R. 314. That an illegal condition renders the promise void, sce
ante, sec. 11.

3 Stone v. Appel, 12 Tl. App. 582.

4 Yoster 2. Hanchett, 68 Vt. 319, 54 Am. St. R. 887, 54 L. R. A. 886.
As to antenuptial unchastity as ground for avoiding a marriage, see
post, sec. 70.

5 Snowman v. Wardwell, 32 Me. 275; Stratton v. Dole, 45 Neb. 472.

* Barry v. Bakeman, 44 Me. 164; Snowman v. Wardwell, supra;
Sprague v. Craig, 51 Ill. 288.

7 Boynton v. Kellogg, 3 Mass. 188; Butler v. Hischelman, 18 Ill. 44.
CONTRACTS TO MARRY 23

her reputation for sobriety was good, it was held to go in
mitigation of damages only and not in bar.' It would
seem, however, that habitual drunkenness of either party,
discovered or arising pending the engagement, would
justify rescission, and the fact that a local statute makes
such drunkenness a ground for divorce would render this
conclusion irresistible. .

Indulgence in profane swearing by the woman, coupled
with threats against the defendant’s family, has been
held no cause for rescission. But in this case the refusal
to marry was not put upon that ground, and there was no
evidence that the defendant knew the facts. But violent
displays of temper and threats of ill usage during courtship
have been held to warrant a rescission.®

24. Same—Release, Rescission and Renewal.

Rescission by mutual consent is always a defense to
an action for breach of promise, in the absence of fraud
or duress. Even where the fraud of a third party in-
duced the plaintiff to release the defendant, who accepted
such release in good faith, it was held a complete defense.*
Whether a release or mutual rescission (for they are
practically the same) was intended is a question to be
determined upon the facts of each case. Where the plain-
tiff told the defendant that he need not marry her if he
did not wish to, and later wrote him, ‘Tf you desire a
change, take it, and end the matter right here,” the
engagement was held rescinded.® The return of presents
and letters does not constitute a release in itself. Its
probative force is for the jury, in connection with the other
facts and circumstances of the case.°®

1 Button ». McCauley, 1 Abb. App. Dec. 282.

2 Barry v. Bakeman, 44 Me. 164. See also Alberts ». Alberiz, 78
Wis. 72, 10 L. RB. A. 584.

3 Leeds v. Cook, 4 Esp. 257; Hook v. George, 100 Mass. 331.

4 Allard v. Smith, 2 Met. (Ky.) 297.

5 Kellett v. Robie, 99 Wis. 303. Compare Wagenseller v. Zimmers,
97 Pa. 471.

® Kraxberger v. Roiter, 91 Mo. 404, 60 Am. R. 262; Oritz ». Navarro,
24 CONTRACTS TO MARRY

Renewal of a promise of marriage after the rescission
of a prior engagement has no effect to revive the latter.
It is a new contract and must stand or fall on its own
merits.!

After suit brought, or even after breach and before an
action is commenced, a mere offer to renew the engage-
ment is no defense,? though if made in good faith before
suit it may go in mitigation of damages.*

25. The Remedy for Breach of Promise—Nature of
Suit.

Though specific performance of a contract to marry
was sometimes anciently compelled by the spiritual courts,
equity has no power to grant that remedy, and the sole
remedy now for such breach in England is a common-law
action for damages,‘ termed by universal usage a breach
of promise suit. No other remedy has ever been known
here. While this action is technically upon contract, it
is in some respects peculiar, and is closely assimilated to
an action of tort. This is due to the peculiar nature of the
injury which flows from breach. It may fall to some
extent upon property, but whether it does or not, there
are always present in some degree elements of injury
affecting the person through the feelings of pride and
affection. Hence, though the action is formally upon
contract, its substantive basis is practically analogous to
fraud or deceit, and the action to one of tort.®

26. Same—Does the Cause of Action Survive?
It has therefore been held that the cause of action for
breach of promise of marriage does not survive against

10 Tex. Civ. App. 195; Davis ». Bomford, 6 H. & N. 245; Kellett ».
Robie, supra.

1 Dean v. Skiff, 128 Mass. 174.

? Southard v. Rexford, 6 Cow. (N. Y.) 254; Kurtz 2. Frank, 76 Ind.
594, 40 Am. R. 275.

§ Kelley v. Renfro, 9 Ala. 328, 44 Am. D. 441.

‘Stat. 26, Geo. II, Chap. 33. See ante, sec. 6, note.

See Finlay v. Chirney, 20 Q. B. D. 494, 497; Stebbins 2. Palmer, 1
Pick. (Mass.) 71; post, secs. 27 et seq.
CONTRACTS TO MARRY 25

the estate of the promisor or in favor of the personal
representatives of the promisee unless special damage is
alleged and proved. Special damage, it seems, means
such damage to the estate or property of the plaintiff as
was within the contemplation of both parties when the
contract was made, and the cause of action will survive
as to this only and not as to the general damages, which
are personal in their nature and implied from the very
breach itself.!| What particular items constitute special
damage seems uncertain. The expense of the plaintiff’s
trousseau is not ordinarily such, though if it were mutually
contemplated when the marriage was agreed upon it
might be.”

27. The Damages.

It follows from what has been said that the damages in
breach of promise suits are very much at large and are,
in general, within the sound discretion of the jury whose
verdict will not be set aside unless it is manifestly the
result of passion, prejudice or corruption.*

The items of injury usually considered in breach of
promise cases may be summed up as follows:

1. The disappointment of the plaintiff’s reasonable ex-
pectations, though not the precise money difference be-
tween her position as a single woman and as the defend-
ant’s wife, for this is too conjectural.

2. The injury to her affections.

3. The plaintiff’s mortification and distress resulting

1Chaimberlain ». Williamson, 2 M. & 8S. 408; Finlay v. Chirney,
supra; Lattimore ». Simmons, 13 S. & R. (Pa.) 183; Hovey v. Page, 55
Me. 142; Grubb ». Sult, 32 Gratt. (Va.) 203, 34 Am. R. 765; Wade ».
Kalbfieisch, 58 N. Y. 282, 17 Am. R. 250; Stebbins ». Ealney supra;
Kelley v. Riley, 106 Mass. 339.

2 See Finlay v. Chirney, supra; Chase v. Fritz, 132 ie 359; Had-
ley ». Baxendale, 9 Exch. 341.

* Berry v. DaCosta, L. R. 1 C. P. 331; Olson v. Solverson, 71 Wis.
663; Clark ». Pendleton, 20 Conn. 295; Hooker, Phillips, 26 Ind. App.
501.

4 But see Lawrence v. Cooke, 56 Me. 187, 96 Am. D. 443; Chellis v.
Chapman, 125 N. Y. 214, 11 L. R. A. 784.
26 CONTRACTS TO MARRY

from the abandonment, and, in this last connection, the
duration of the engagement, her wounded spirit, the in-
sult to her feelings and the probable solitude that will
result from the desertion.!

28. Circumstances in Aggravation and Mitigation.

A great variety of facts and circumstances may be
shown in aggravation or mitigation of damages in actions
for breach of promise. Most of them bear directly upon
the elements of damage enumerated in the preceding
section. Thus, the pecuniary means of the defendant,?
and the plaintiff’s lack of independent means;? the social
position of the parties, and the circumstances under which
the breach occurred, may severally be shown.‘ So, the
unchastity of the plaintiff prior to the promise may be
shown in mitigation of damages, though it is usually a
bar where it was unknown at the time of the engagement
and rescission was sought by the defendant promptly
upon discovering the facts.» The general loose and in-
delicate behavior of the woman may be shown to reduce
the damages,* and so may her intemperance,’ her want of

1 Cooledge v. Neat, 129 Mass. 146. See also Rutter v. Collins, 108
Mich. 143; Olson v. Solverson, supra; Brown v. Odill, 104 Tenn. 250,
52 L. R. A. 660, 78 Am. St. R. 914; Miller ». Rosier, 31 Mich. 475;
Perkins v. Hersey, 1 R. I. 493; Hanson v. Johnson, 141 Wis. 550.

2 Olson v. Solverson, 71 Wis. 663; Bennett v. Beam, 42 Mich. 346,
and note thereto in 36 Am. R. 443; Chellis ». Chapman, 125 N. Y. 214,
11 L. R. A. 784; Lawrence v. Cooke, 56 Me. 187; Sprague v. Craig, 51
Ill. 288. Contra as to the means of defendant’s relatives. Spencer ».
Simmons, 160 Mich. 292.

3 Vanderpool v. Richardson, 52 Mich. 339; Rutter v. Collins, 103
Mich. 143, 148.

4 Baldy v. Stratton, 11 Pa. 316; Rutter v. Collins, supra.

» Ante, sec. 14; Sheehan ». Barry, 27 Mich. 217. See Willard ».
Stone, 7 Cow. (N. Y.) 22, where loose conduct of plaintiff after breach
was held proper in mitigation.

* Willard v. Stone, supra; Stratton 7. Dole, 45 Neb. 472; Alberts v.
Albertz, 78 Wis. 72, 10 L. R. A. 584; Burnett v. Simpkins, 24 Ill. 264;
Contra, Colburn ». Marble, 196 Mass. 376.

7 Button ». McCauley, 1 Abb. App. Dec. (N. Y.) 282. .
CONTRACTS TO MARRY 27

affection for the defendant,! and her abusive and threat-
ening conduct toward him or his family.? The ill health
of either party may be shown in mitigation in the absence
of fraud.? Though the bad character of members of the
plaintiff’s family as distinguished from its reputation and
standing is not admissible in mitigation,‘ the insanity of
her near blood relations may perhaps be shown, when the
fact was unknown to the defendant when the promise was
made.’ That the defendant refused to perform because
of the settled opposition of his invalid mother has been
held admissible in mitigation.®

29. Same—Seduction

Whether the plaintiff may show her own seduction by
means of the marriage promise in aggravation of damages
for its breach has given rise to conflicting decisions. Some
courts reject such evidence on the familiar ground that
the woman, being in pari delicto, cannot be permitted to
recover for her own wrong and in the face of the maxim,
volenti non fit injuria.’_ The English courts and a ma-
jority of our own hold otherwise, however, even though
they deny the woman’s independent right of action for

1 Miller v. Rosier, 31 Mich. 275; Robinson v. Carver, 88 Ia. 381;
Bennett v. Beam, 42 Mich. 346, 36 Am. R. 442. But not the defendant’s
want of affection unless known to the plaintiff at the time of contract-
ing. Piper v. Kingsbury, 48 Vt. 480.

2 Leeds v. Cook, 4 Esp. 256; Alberts v. Albertz, 78 Wis. 72, 10 L. R.
A. 584.

3 Goddard v. Westcott, 82 Mich. 180; Mabin ». Webster, 129 Ind.
430, 28 Am. St. R. 199; Walker v. Johnson, 6 Ind. App. 601. See
Sanders ». Coleman, 97 Va. 690, 47 L. R. A. 581, and ante, sec. 8.

4 Spelling v. Parks, 104 Tenn. 351.

5 Lohner v. Coldwell, 15 Tex. Civ. App. 444. Nearness of kin held
not a fact in mitigation. Alberts v. Albertz, 78 Wis. 72, 10 L. R. A.

* Johnson v. Jenkins, 24 N. Y. 252.

-7 Weaver v. Bachert, 2 Pa. 80, 44 Am. D. 159; Baldy v. Stratton, 11
Pa. 316; Wrynn v. Downey, 27 R. I. 454, 4 L. R. A. (N. S.) 615, and
note; Burks ». Shain, 2 Bibb (Ky.), 341, 5 Am. D. 616. See post,
sec. 517.
28 CONTRACTS TO MARRY

seduction, and permit it to be shown to aggravate the
damages in a breach of promise suit, not as an independent
wrong, or one for which damages may be separately
assessed, but upon the ground that it is a breach of a con-
fidential relation, aggravating, as a necessary consequence,
the subsequent violation of contract, and entailing deeper
pain, mortification and disgrace, a more certain loss of
social position and a darker future than would otherwise
result, and rendering the seduction an element of injury
that cannot be ignored in any view of justice.” In several
states, however, seduction cannot be shown in aggrava-
tion of damages unless specially pleaded,* and in no case
would it be admissible on the question of damages where
it preceded the marriage engagement. That the plain-
tiff was not only seduced, but was got with child, would
seem to be additional matter of aggravation, for this fact
cannot fail to enhance her mental suffering and loss of
social standing and add to her sense of disgrace, though
injury to bodily health, the expenses of confinement, or
the cost of maintaining the child cannot be considered.*

If the seduction took place before the marriage promise,
it is held that it cannot be considered in aggravation,* and
even though it transpired pending the engagement the
same rule would probably apply if the woman herself were
the seducer.®

1See ante, sec. 6.

* Berry v. DaCosta, L. R. 1 C. P. 331, 334; Millington ». Loring, 6
Q. B. D. 190; Osmun ». Winters, 25 Oreg. 260; Sheahan ». Barry, 27
Mich. 217; Schmidt ». Durnham, 46 Minn. 227; Burnett ». Simpkins,
24 Ill. 264; Roper v. Clay, 18 Mo. 383, 59 Am. D. 314; Kelley ». Riley,
106 Mass. 339, 8 Am. R. 336; Daggett v. Wallace, 75 Tex. 352, 16
Am. St. R. 908; Anderson v. Kirby, 125 Ga. 62, and cases cited, at
page 70; Salchert v. Reinig, 135 Wis. 194, and cases cited.

8 Tyler v. Salley, 82 Me. 128; Leavett v. Cutler, 37 Wis. 46; Cates 2.
McKinney, 48 Ind. 562. See Millington v. Loring, supra.

4 Musselman v. Barker, 26 Neb. 737; Wilds v. Bogan, 57 Ind. 453;
Geise v. Schultz, 53 Wis. 462, 65 Wis. 487; Tyler ». Salley, 82 Me. 128.

6 See Espey v. Jones, 37 Ala. 379.

* But see the contrary view of Dr. Bishop in 1 Mar. Div. & Sep.,
sec. 232. See Salchert v. Reinig, 185 Wis. 194.
FREEDOM AND SECURITY OF MARRIAGE 29

30. Exemplary Damages.

In courts where exemplary damages are allowed they
may be given against one who violates his solemn promise
of marriage, at least where the breach takes place under
circumstances of wantonness, cruelty or insult, or the
promise was originally made in bad faith, as for the pur-
pose of seduction.!. And where the defendant alleges that
the plaintiff is unchaste and fails in his proof of the fact,
and the jury are satisfied that he made such allegation
in bad faith, this is ground for exemplary damages in
courts where they are allowed,” and is doubtless matter.
of aggravation in any case.’ Further than this it seems
that matters transpiring after suit brought are not ad-
missible in aggravation.‘

TRANSACTIONS AFFECTING THE FREEDOM AND SECURITY OF
MARRIAGE

31. Legality—In General—Unreasonable Restraints.

The policy of the law is to encourage marriage and living
together in marriage and the freedom of choice in mar-
riage.> Agreements in unreasonable restraint of marriage
are therefore illegal and void, though reasonable and
wholesome restraints are upheld. A contract never to
marry, or not to marry anyone but a particular person,
there being no promise of marriage on the other side, is

1 Johnson v. Jenkins, 24 N. Y. 252; Thorn v. Knapp, 42 N. Y. 474,
1 Am. R. 561; Coryell ». Colbaugh, 1 N. J. Law, 190, 1 Am. D. 192;
Goddard v. Westcott, 82 Mich. 180; Chellis v. Chapman, 125 N. Y.
214, 11 L. R. A. 784.

2 White v. Thomas, 12 Ohio, 313, 80 Am. D. 347; Southard v. Rexford,
6 Cow. (N. Y.) 254; Fidler v. McKenney, 21 Ill. 308; Powers v. Wheat-
ley, 45 Cal. 113; Osmun v. Winters, 30 Oreg. 177; Alberts v. Albertz,
78 Wis. 72, 10 L. R. A. 584.

3 Trammell v. Vaughan, 158 Mo. 214, 51 L. R. A. 854; Blackburn ».
Mann, 85 Ill. 222; Fidler ». McKenney, supra.

‘Greenup v. Stoker, 2 Gikn. (Ill.) 688; Greenleaf ». McColley, 14
N. H. 308.

’ Chapin ». Cook, 73 Conn. 72, 84 Am. St. R. 139, 147, and notes;
White v. Equitable Union, 76 Ala. 251, 52 Am. R. 325.
30 FREEDOM AND SECURITY OF MARRIAGE

unreasonably restrictive and void;! and the same was
held of an agreement to pay a certain sum if the payee
did not marry within a certain time, or, if he did, then a
certain sum per day during the time he remained single.”
But a condition in a contract, gift or will is deemed rea-
sonable and valid which restrains marriage until a reason-
able age,* or with a particular person, or with a person of
a particular class,‘ or without the consent of the testator
or donor.’ The same has been held of a condition at-
tached to a gift or devise that restrains absolutely the
remarriage of a widowed or divorced person imposed by
the former husband or wife, at least where such gift or
devise is followed by a limitation over.®

32. Marriage Brocage Contracts.

Every contract or agreement whereby the promisee is
to bring about a marriage between the promisor and an-
other person, or between third persons, is illegal and void.
Such agreements are known as marriage brocage contracts,
and are condemned without regard to the wisdom or the

1 Bradley v. Bradley, 19 Ont. L. Rep. 525; Lowe v. Peers, 4 Burr.
2225. See Conrad v. Williams, 6 Hill (N. Y.), 444.

2 Hartley v. Rice, 10 East, 22. To substantially the same effect are
White v. Equitable Benefit Union, 76 Ala. 251, 52 Am. R. 325; Chalfant
v. Payton, 91 Ind. 202, 46 Am. R. 586; Mandlebaum ». McDonald, 29
Mich. 78, 18 Am. R. 61.

3 Young v. Fruse, 8 De Gex, M. & G. 756. In this case the restraint
was until twenty-eight. See Shackelford ». Hall, 19 Ill. 212.

4 Scott v. Tyler, 2 Brown’s Ch. 431; Phillips ». Ferguson, 85 Va. 509;
17 Am. St. R. 78.

5’ Scott v. Tyler, supra; Collier v. Slaughter, 20 Ala. 263.

6 Upon this and similar questions the authorities are not in entire
harmony and depend upon distinctions too numerous and refined for
discussion here. See Schouler on Wills (2d Ed.), sec. 603; Bisph. Eq.
(8th Ed.) 225 et seq.; Mann v. Jackson, 84 Me. 400, 16 L. R. A. 707,
30 Am. St. R. 358; Coppage v. Alexander, 2 B. Monr. (Ky.) 313, 38
Am. D. 156; Chapin ». Cooke, 73 Conn. 72, 84 Am. St. R. 147, and
notes to the last two cases; King v. King, 63 Oh. St. 363, 81 Am. St. R.
635, 52 L. R. A. 157; Scott ». Tyler, supra; 6 Gray’s Cas. on Prop. 31,
note,
FREEDOM AND SECURITY OF MARRIAGE 31

benefit of the particular marriage contemplated or brought
about, on the ground of the pernicious tendency of mer-
cenary matchmaking. !

33. Contracts Promotive of Separation and Divorce.

Agreements tending to encourage or bring about the
future separation of husband and wife or a divorce are
generally deemed contrary to public policy and void.
This principle and its application is discussed later on.?

1 Hermann v. Charlesworth, 2 K. B. 123 (1905); Ful'er v. Dame, 18
Pick. (Mass.) 472, 481; Johnson v. Hunt, 81 Ky. 821; White v. Equi-
table, etc., Union, 76 Ala. 251, 52 Am. R. 825. It has even been held
that a promise to pay a third person for inducing performance of a
subsisting promise of marriage is illegal and void. Morrison v. Rogers,
115 Cal. 252, 56 Am. St. R. 95; In re Grobes’ Est., 127 Ia. 122. That
money paid under a marriage brocage contract can be recovered back,
see Hermann v. Charlesworth, supra.

2See post, secs. 317, 320.
CHAPTER II

WHAT CONSTITUTES MARRIAGE-REQUISITES AND VALIDITY
——ELEMENTS

34. Marriage Defined—-Nature of Relation.

The term marriage in Anglo-American law is used in
two senses:

1. As signifying the solemnity, ceremonial, or other
means by which parties are made husband and wife.

2. As signifying the resultant relation which they hold
toward one another and their status in the community
as husband and wife.

Marriage in this last sense has been compendiously
defined as ‘“‘the civil status of one man and one woman
legally united for life, with the rights and duties which,
for the establishment of families and the multiplication
and education of the species, are, or from time to time
may thereafter be, assigned by law to matrimony.” !
This last is its strict and proper meaning. We must
therefore bear in mind that marriage is something more
than a contract, for, unlike a contract to marry, it cannot
be rescinded or otherwise annulled at the will of either
of the parties, or even by the consent of both without the
act or consent of the state. It is properly a status or
condition of the spouses before the law, their agreement
or consent or contract, as it is sometimes called, being
but one requirement for the assumption of a status the
existence of which determines directly and immediately
their rights of mutual association and intercourse and
the legitimacy of their children. Collaterally at common

11 Bish. Mar. Div. & Sep., sec. 11. See also Roche v. Washington,

19 Ind. 53, 57, 81 Am. D. 376; State v. Bittick, 108 Mo. 183, 11 L. R. A.
587; Schouler’s Dom. Rel. (5th Ed.) sec. 12. See also post, sec. 80.

32

°
MARRIAGE IN GENERAL 33

law, and still in most states, it determines important
rights of property and affects the wife’s capacity to con-
tract and to sue and be sued alone. It also renders lawful
physical relations of the parties which are unlawful be-
tween the unmarried, and gives them capacity to commit
or to involve others in certain crimes impossible where
the parties concerned are unmarried. Statutes that de-
clare that ‘‘marriage, so far as its validity in law is con-
cerned, is a civil contract,’ simply refer to the consent
that is essential to the inception of the relation, and not
to the character of the relation itself.1 Marriage, then, is
a status or fundamental relation of society in which the
state has an interest and the constitutional right to police,
and which the legislature may dissolve without the con-
sent of the parties, unless the organic law forbids, in
spite of the clause of the federal constitution prohibiting
the states to pass any law impairing the obligation of
contracts,’ and its incidents may be modified by law so
long as there is no interference with rights of property
which have become vested under subsisting marriages.’

35. Void and Voidable Marriage Distinguished—-Tem-
poral and Ecclesiastical Law.

Before discussing in detail the elements of a valid mar-
riage, it will probably insure a better understanding of the
subject to distinguish generally between the troublesome
terms void and voidable as applied to marriage. Their
meanings have their foundations to some extent in the
distinction between the jurisdictions of the temporal and
ecclesiastical courts in England. The temporal courts
had no direct power to affirm or annul a marriage, which

1 Ditson v. Ditson, 4 R. I. 87; Maynard ». Hill, 125 U.S. 190; Randall
v. Krieger, 23 Wall. (U. 8.) 137, 147; Andr. Am. L. (1st Ed.) sec. 533.

2 See post, sec. 330.

3 Tiedeman’s Lim. Police Power, secs. 149, 150; Maynard v. Hill,
supra; Adams v. Palmer, 51 Me. 481; Rose v. Rose, 104 Ky. 498, 41
L. R. A. 353, and notes thereto in 84 Am. St. R. 437; Fronker v. State,
3 Tex. App. 363, 40 Am. R. 131. See McCreery v. Davis, 44 8. Car.
195; 51 Am. St. R. 794, 28 L. R. A. 655. See post, secs. 194, 203, 236.

3
34 MARRIAGE IN GENERAL

in this particular was deemed solely a thing of spiritual
cognizance. Upon an issue of dower or legitimacy and
the like, however, they could determine that no valid
marriage existed on account of certain so-called legal
causes or impediments, as, for example, because it was
bigamous, or, perhaps, incestuous according to the law of
nature,! or because one or both parties to it were under
the age of consent or idiotic, or because of want of con-
sent. The ecclesiastical courts, on the other hand, in
the exercise of a jurisdiction ‘‘for the cure of souls” recog-
nized certain other causes, not as impediments to mar-
riage strictly speaking, but as grounds upon which a de
facto marriage should be declared void ab initio at the
suit of one of the spouses for the spiritual welfare of the
parties and the good of the church.? The source and
nature of the ecclesiastical law and jurisdiction are briefly
explained in the note below.®

1See Wightman v. Wightman, 4 Johns. Ch. 343.

2See 1 Bisph. Mar. Div. & Sep., secs. 260 et seq.; 2 Howard’s Hist.
Mat. Inst., 92 et seq.; post, secs. 47, 53, 56, 328.

3 The matrimonial law of Western Europe was long dominated by
Roman ecclesiastical influences, giving rise in England to a body of
tules touching marriage, legitimacy and divorce, which, almost from
the Norman conquest onward to about sixty years ago (Stat. 20, 21
Vict., Chap. 85) was administered, not in thetemporal or “royal courts,”
as they are termed, but in separate tribunals known as the courts
Christian or ecclesiastical courts. A word about these latter courts and
their jurisdiction seems necessary to an intelligible presentation of our
own matrimonial law, though details must of course be omitted.

Though England was essentially Catholic long prior to the con-
quest, no separate jurisdiction in the administration of English law
appears to have been previously exercised by the church. After the
conquest, however, the ecclesiastical and secular courts and jurisdic-
tions became separate and distinct, the latter exercising jurisdiction
over mundane things, while the former claimed and to a great extent
exercised authority over all that concerned the care and cure of souls.
This jurisdiction may be roughly described as appertaining:

1. To spiritual persons, which included, of course, the clergy.

2. To spiritual property, such as the property and revenues of the
-church.

3. To the spiritual welfare and discipline of the laity, including pre-
MARRIAGE IN GENERAL 35

The causes for which the spiritual courts would annul
a marriage valid by the temporal law were consanguinity
and affinity,! impotency or physical incapacity to con-
summate marriage,? and in former times, precontract.®
Those were known as the canonical, as distinguished from
civil, disabilities or impediments to marriage.

36. Void and Voidable Further Considered.

Doubtless a marriage void by the temporal law would
usually, if not always, have been so regarded in the spirit-
ual courts. What then is a void marriage? Strictly
speaking it is no marriage at all, for it confers no marital
rights of person or property and involves no marital duties
of any kind, and may be attacked directly or collaterally
by any party at any time, whether the supposed married

eminently marriage upon the basis of its sacramental character, and
including its principal incidents, legitimacy and divorce, and also,
strange as it may seem, to causes arising out of testaments and in-
testacy.

So much of the law, however, as affected the property rights and civil
capacities of married parties belonged to the common law and equity
courts and not to the ecclesiastical courts and judicature.

The original basis of the English ecclesiastical law was of course the
canon law of Rome, which naturally derived many of its forms and
principles from the Roman civil law. The canon law in its purity,
however, was probably never the ecclesiastical law of England, its
rules being always more or less modified and restricted by ordinances
or statutes of both church and Parliament, and by the custom of the
realm or the technical common law. As thus modified, however, the
English ecclesiastical law was as much a part of the law of England as
the ancient common law itself. While we have no public ecclesiastical
tribunals in this country, much of our common law pertaining to wills,
intestacy and matrimonial causes as administered in the secular courts
had its origin in the English ecclesiastical law, and many of our statutes
are declaratory of its rules and their interpretation is influenced by
them. See post, secs. 326, 328, 332.

See on the general subject of this note, Studies in Anglo-Am. Legal
Hist., Vol. I, 535; Id., Vol. II, 255-311; 1 Bish. Mar. Div. & Sep.,

. secs. 100 et seq., and authorities cited.

1 See post, secs. 53 et seq.

2 See post, secs. 47 et seq.

’ See ante, sec. 6, note 4.
36 MARRIAGE IN GENERAL

parties or either of them be living or dead. Either party
to a void marriage is free to marry again without divorce
or decree of nullity,? and the children of such marriage
are illegitimate unless statutes, as is often the case in
modern times, declare otherwise.* But though no judicial
decree is necessary to avoid a void marriage, it is unques-
tionably the better practice to have it adjudged void
while both parties are living, for such judgment is usually
conclusive upon them and others for all time.

A voidable marriage, on the other hand, is usually
one that may be subsequently annulled by a court of
competent jurisdiction in an action or proceeding brought
directly for the purpose of having its nullity judicially de-
clared, by one of the parties thereto during the lifetime of
the other, but which is binding upon them until so an-
nulled, but is void ab initio if a decree of nullity is so pro-
nounced. This was the strict meaning of voidable as
applied to marriage in the English ecclesiastical law, a
meaning which it still has in modern law.

But the terms void and voidable as applied to marriage
have still other and somewhat variable meanings similar
to those attributed to them in the law of contracts. Thus,
all marriages that are not binding and that are not void-
able in the ecclesiastical sense are sometimes spoken of
as void. But we shall see that some of these marriages
are capable of ratification or affirmance without subse-
quent ceremonial so as to become finally and absolutely
binding, or they may be disaffirmed or rescinded without
judicial decree. The terms voidable, inchoate or imper-
fect, are therefore used to signify a marriage capable of
and requiring affirmance to render it valid, or requiring
rescission or disaffirmance, though not necessarily by
judicial decree, in order to render it null.

1 Orchardson v. Cofield, 171 Ill. 14, 63 Am. St. R. 211, 40 L. R. A.
256; Deeds v. Strode, 6 Idaho, 317, 96 Am. St. R. 268, 267, and notes;
Williams v. Williams, 63 Wis. 58, 53 Am. R. 253.

2? Wichhoff v. Eichhoff, 101 Cal. 600.

3 See post, sec. 455.
MARRIAGE IN GENERAL 37

It should be observed, however, that certain marriages
voidable by the older law are now absolutely void by
force of statute,’ and that certain marriages void by that
law may be valid, or else voidable merely. Hence the
effect of various disabilities and other circumstances in
rendering marriage void or voidable, and the various
meanings of these terms in connection therewith, is dis-
cussed more in detail in considering capacity to marry,
and such matters as fraud, duress and mistake.

37. Elements of a Valid Marriage—Generally.

The usual essentials of a valid marriage may be sum-
marized as follows:

1. Parties capable of marrying.

2. A mutual agreement or consent to what the law
deems marriage, uninfluenced by fraud or error in any
particular deemed fundamental, or by duress.

3. Compliance with requirements of form, when and
in so far as the law makes such compliance a condition
precedent to its validity.

1 See post, secs. 46, 77.
CHAPTER III

REQUISITES AND VALIDITY OF MARRIAGE CONTINUED—
COMPETENCY TO MARRY—WANT OF AGE-—-MENTAL
AND PHYSICAL INCAPACITY

38. Competency to Marry—In General.

A valid marriage presupposes parties capable under the
law of contracting marriage, and parties may be incapable
of marrying generally or of marrying a particular person
or a person belonging to a particular class, owing to:

. Want of age.

. Want of mental capacity.

. Impotency or physical incapacity.

Blood relationship (consanguinity).

Relationship by marriage (affinity).

Difference of race.

Prior marriage still subsisting, or impediments fol-
lowing divorce.

8. Disease and pauperism under recent statutes

ND OUR Ot

39. Want of Age at Common Law.

Proceeding upon the principle that competency to
marry is dependent upon physical capacity to discharge
the functions peculiar to marriage rather than upon capac-
ity for business affairs, the age at which the common law
(and the same was true of the canon and English eccle-
siastical law) permitted marriage was fixed approxi-
mately at the age of puberty, or fourteen for males and
twelve for females. Differing from an engagement to
marry,! marriage between parties who had attained those
ages respectively was in every sense valid if otherwise
unobjectionable.? :

1 See ante, sec. 9.

21 Bl. Com. 436; Koonce v. Wallace, 7 Jones’s Law (N. Car.), 194;
Cannon v. Alsbury, 1 A. K. Marsh. (Ky.) 76, 10 Am. D. 709.

38
CAPACITY TO MARRY 39

The age at which a valid marriage may be contracted
at common law or under statutes is termed the age of
consent,! and one under that age is not estopped to avoid
the marriage by his false representations as to age.’

At common law if either party was under seven years
the marriage was absolutely void.’ If both parties were
over seven, and only one of them was under the age of
consent, the marriage was voidable at the option of the
latter, who might either ratify or disaffirm it upon reach-
ing that age. Where both parties are over seven, but
both are under the age of consent when they intermarry,
it seems that the marriage can be neither affirmed nor
rescinded until both reach the age of consent, whereupon
both may affirm or either party may rescind regardless
of the wishes of the other.

40. Statutory Changes.

Though the age of consent remains in a few states as
at common law, it has been raised in most of them by
statutes which vary considerably both as to the age fixed
for legal marriage and in other respects. These statutes
are to be construed in the light of the common law, and
unless their language plainly precludes that result a mar-
riage under the statutory age is merely voidable or im-
perfect and not void, provided the parties are above the
common-law age of consent.®

The requirement of the consent of parents or guardians

1For another meaning of the term, “age of consent,” see post,
sec. 626. Ex parte Hollopeter, 52 Wash. 41, 21 L. R. A. (N. 8.) 847.

2 Elliott v. Elliott, 77 Wis. 634, 10 L. R. A. 568.

31 BI. Com. 436.

4Aymar v. Roff, 3 Johns. Ch. (N. Y.) 49; Koonce ». Wallace, 7
Jones’s Law (N. Car.), 194; Parton ». Hervey, 1 Gray (Mass.), 119.

5 Koonce v. Wallace, 7 Jones’s Law (N. Car.), 194; Goodwin v. Thomp-
son, 2 Greene (Iowa), 329; Willetts v. Willetts, 76 Neb. 228; State 2.
Lowell, 78 Minn. 166, 46 L. R. A. 440, 79 Am. St. R. 358, and note;
Fisher v. Bernard, 65 Vt. 664. Such a marriage will sustain a prosecu-
tion for bigamy. State ». Beggs, 55 Ala. 108, 113; People v. Slack, 15
Mich. 198. Compare People v. Bennett, 39 Mich. 208.
40 CAPACITY TO MARRY

where parties marrying are under a specified age is dis-
cussed later on.!

41. How Infant Marriage Is Avoided—Ratification.

Marriage by an infant under the age of consent may
be avoided in pais at common law without a degree of
nullity,? though such a decree is, of course, advisable, and
statutes in some states require it in terms or by interpre-
tation.*

If one who has married under the age of consent vol-
untarily cohabits with his or her wife or husband after
reaching such age, or expressly, or even by conduct short
of cohabitation, clearly recognizes the marriage as binding,
it becomes good in law. for all purposes without further
ceremony.*

If one of the parties was over the age of consent but the
other was under it, it is said that the former as well as the
latter may avoid the marriage,® but in some states, by
force of statute at least, only the incompetent party may
rescind or have its nullity decreed.®

MENTAL INCAPACITY

42. In General—Nature and Extent of Incapacity.

Though we have seen that marriage is properly a status
and not a contract, it has its rise like ordinary contracts
in agreement or consent, and if one party lacks the mental

1 See post, sec. 92.

?1 Bl. Com. 436; Beggs v. State, 55 Ala. 108, 113; People v. Bennett,
39 Mich. 208; People v. Slack, 15 Mich. 193; Goodwin ». Thompson, 2
Greene (Ia.), 329.

§ Walls v. State, 32 Ark. 565; Elliott v. Elliott, 77 Wis. 634, 10 L. R.
A. 568; State ». Cone, 86 Wis. 498; Willetts 2. Willetts, 76 Neb. 228,
231, 5 L. R. A. (N.8.) 767.

‘1 Bl. Com. 436, 437; Koonce v. Wallace, 7 Jones’s L. (N. Car.) 194;
Goodwin v. Thompson, 2 Greene (Ia.), 329; Governor ». Rector, 10
Humph. (Tenn.) 57, 61.

61 Bl. Com. 436; 1 Bish. Mar. Div. & Sep., sec. 575.

6 Willetts v. Willetts, 76 Neb. 228, 5 L. R. A. (N. 8.) 767. See People

v, Slack, 15 Mich. 199. Compare People v. Bennett, 39 Mich. 208.
CAPACITY TO MARRY 41

capacity to agree or yield consent, the marriage is voidable
or inchoate at least, if not void.'
{The precise name or nature of the mental defect or
incapacity which will prevent a valid marriage seems ©
immaterial, so long as it is sufficient to preclude intel-
ligent assent to the assumption of the marriage tie]
While capacity to understand one thing does not nec-
essarily import capacity to understand another and a
different one, courts have sometimes appeared to lay down
the rule that mental capacity to marry is dependent upon
a like capacity for contracts generally, or, in other words,
that capacity to marry depends upon general capacity
for business.2. This rule, however, is open to objection
even though we regard marriage as upon the same footing
with ordinary contracts, for the general test of capacity
in the law of contracts is not the capacity to transact
business generally, but the capacity to understand the
nature and probable consequences of the particular con-
tract the validity of which is called in question.* Both on
general legal principles and by the weight of recent au-
thority it is believed that this furnishes the true test for
marriage, and that no marriage, in the absence of statute,
can be impeached for want of mental capacity if both
parties thereto were capable of understanding the nature
of the relation which they sought to form, and of appre-
hending, at least in a general way, its ordinary collateral
consequences.‘ Capacity to understand fully all the legal

1 See post, sec. 46.

2 Durham v. Durham, L. R. 10 P. D. 80; Foster v. Means, 1 Spear’s
Eq. 569, 42 Am. D. 332; Cole v. Cole, 5 Sneed (Tenn.), 57, 70 Am. D.
275; Middleborough v. Rochester, 12 Mass. 363; Atkinson ». Medford,
46 Me. 510; Anon., 4 Pick. (Mass). 32.

> Bish. on Contracts (New Ed.), sec. 963; Riggs v. Am. Tract Soc.,
95 N. Y. 503, 511; Searles v. Galbraith, 73 Ill. 269.

4 Portsmouth »v. Portsmouth, 1 Hagg. Ecc. 355, 3 Eng. Ecc. 154;
Durham v. Durham, 10 P. D. 80; Hunter v. Edny, 10 P. D. 98; Orchard-
son-». Cofield, 171 Ill. 14, 63 Am. St. R. 211, 40 L. R. A. 256; Lewis v.
Lewis, 44 Minn. 124, 20 Am. St. R. 559, 9 L. R. A. 505; Ward ».
Dulaney, 23 Miss. 414; Kern v. Kern, 51 N. J. Eq. 574; St. George ».
42 CAPACITY TO MARRY

results of marriage, direct and collateral, is not required,
for few sane persons even of the legal profession, are
conversant with them all.!_ The mere existence of ‘an
insane delusion, therefore, does not necessarily inval-
idate a marriage,? nor does insanity of a more general
nature if, at the time of the marriage, the alleged lunatic
was in the enjoyment of a lucid interval.’

It will be readily understood, however, that less of
mental weakness or insanity than is above described will
suffice to avoid a marriage where, as is often the case,
elements of fraud, conspiracy or compulsion combine
therewith.*

43. Same—Inquisition and Finding of Lunacy.

An inquisition and finding of lunacy, unless too remote,
is prima facie evidence of incompetency to marry. Still
it is not conclusive in the absence of statute, and the actual
capacity of the alleged lunatic may be shown.°

44. Drunkenness.

One so drunk at the time of marriage as to be unable to
understand the nature of the marriage contract within the
rules already laid down touching insanity, is incapable
of contracting a valid marriage, being regarded in that
respect as temporarily insane. But a less degree of

Biddleford, 76 Me. 593; Nonnemacher v. Nonnemacher, 159 Pa. 634.
As to legislative changes, see post, sec. 52.

1§t. George v. Biddleford, supra.

2 Kern v. Kern, 51 N. J. Eq. 574; Lewis ». Lewis, 44 Minn. 124,
20 Am. St. R. 559, 9 L. R. A. 505.

* Turner v. Myers, 1 Hagg. Con. 414; Smith v. Smith, 47 Miss. 211;
Rawdon v. Rawdon, 28 Ala. 565.

4 Orchardson v. Cofield, 171 Ill. 14, 63 Am. St. R. 211, 40 L. R. A.
256; Portsmouth v. Portsmouth, 1 Hagg. Ecc. 359, 3 Eng. Ecc. 154;
Hides v. Hides, 65 How. Pr. (N. Y.) 17.

’ Banker v. Banker, 63 N. Y. 409; McCleary », Barcalow, 6 Ohio
C. C. 481; Keyes ». Norris, 6 Rich. Eq. (8. Car.) 388; Viets ». Union
Nat. Bank, 101 N. Y. 563, 54 Am. R. 743. See, however, Sims 2.
Sims, 121 N. Car. 297, 40 L. R. A. 737, 61 Am. St. R. 665.

* Prine v. Prine, 36 Fla. 676, 34 L. R. A. 87, and note; Gillett ».
CAPACITY TO MARRY 43

intoxication will not avoid it unless, as is often the case,
there is some accompanying circumstance of fraud, con-
spiracy or compulsion.!

45. Evidence of Mental Incapacity.

The general presumption of law is in favor of capacity,
and this presumption has the aid of the further one in
favor of marriage.2 The burden of proving mental in-
capacity as against a marriage duly solemnized is there-
fore upon the party alleging it. But where insanity of a
permanent nature is shown to have existed, the burden is
generally held to shift to the party claiming sanity to
show, not complete recovery, but sufficient restoration to
reason, at least for the time being, to comprehend the
marriage agreement.? Naturally in such cases the evi-
dence may take a wide range, including proof of hered-
itary taint and the whole history of the alleged incom-
petent as bearing upon his or her mental condition at the
time of marriage.* The effect in such cases of an inquisi-
tion and finding of lunacy has already been stated.’ As
bearing upon the question of mental capacity, the conduct
of the alleged incompetent at the marriage ceremony is
admissible, and if shown to be sane and decorous has been
held prima facie evidence of capacity to understand the
marriage contract. While this is probably not a safe
rule, at least where there is evidence of insanity imme-
diately before the marriage, for even the insane appear
rational at times,’ rational and deliberate preparations

Gillett, 78 Mich. 184; Elzey v. Elzey, 1 Houst. (Del.) 308; Clement ».
Mattison, 3 Rich. (8. Car.) 93.

1 Gillett v. Gillett, supra; Powell v. Powell, 18 Kan. 371, 26 Am. R.
774,

2 See post, sec. 105.

2 Post, sec. 668; Castor ». Davis, 120 Ind. 231, and authorities cited.

‘Durham ». Durham, L. R. 10 P. D. 80; Smith v. Smith, 47 Miss.
211; Kern v. Kern, 51 N. J. Eq. 574; Nonnemacher v. Nonnemacher,
159 Pa. 634.

» Ante, sec. 43.

* Anon., 4 Pick. (Mass.) 32.

7 Smith v. Smith, 47 Miss. 211, 218.
44 CAPACITY TO MARRY

for marriage are usually sufficient prima facie proof of
mental capacity.!

46. Effect of Mental Incapacity—Ratification and
Avoidance.

It is generally laid down that the legal effect of mental
incapacity of either party at the time of marriage is to ren-
der such marriage void in the full sense in which that term
has been defined,? and this is no doubt true if there has been
no ratification after the incompetent party was restored to
reason. But statutes in most states prevent collateral
or even direct attack by third parties by providing that
mental incapacity at the time of marriage shall render it
void from the time when its nullity shall be declared by
a court of competent jurisdiction.®

From the general doctrine that the marriage of an
insane person is void, it would seem to follow that no
subsequent act or acquiesence on his part, even after
his restoration to reason, would make such marriage
valid. It might be celebrated anew, but this would not
be a ratification of the old marriage, but the beginning of
a new one, and children born in the meantime would be
bastards by the common law, and other grave conse-
quences might ensue.t This, however, seems to be the
rule of the older, and some of the modern cases.

But the better doctrine appears to be that the marriage

1 Parker v. Parker, 2 Lee, 382; Kern v. Kern, 51 N. J. Eq. 575, 594.

2 Ante, secs. 35, 36; Browning v. Reane, 2 Phil. Ecc. 69; Wightman
v. Wightman, 4 Johns. Ch. (N. Y.) 343; Middleborough v. Rochester,
12 Mass. 363; True v. Ranney, 21 N. H. 52, 53 Am. D. 164; Ward ».
Dulaney, 28 Miss. 410; Powell ». Powell, 18 Kan. 371; Crump ».
Morgan, 3 Ired. Eq. (N. Car.) 91, 40 Am. D. 447, and authorities
cited.

3 Wiser v. Lockwood, 42 Vt. 720; Brown v. Westbrook, 27 Ga. 102.
Sce Elliot ». Elliot, 77 Wis. 634, 10 L. R. A. 568. Mr. Bishop severely
criticises these statutes. See 1 Mar. Div. & Sep., secs. 633 et seq.;
Middleborough ». Rochester, 12 Mass. 363, 365.

4See post, sec. 455.

’ Orchardson v. Cofield, 171 Tl. 14, 63 Am. St. R. 211, 40 L. R. A.
CAPACITY TO MARRY 45

of an insane person, though otherwise void in the full
sense in the absence of statute, may still be ratified and
affirmed by him or her upon restoration to reason, and
that this affirmance may be express, or implied from
voluntary cohabitation, so that in a restricted and special
sense the marriage of an insane person is voidable only
and not absolutely void,! and this, in some states, is sub-
stantially the rule by statute. And it would seem that
in no case would a party who married a lunatic with
knowledge of the facts be permitted to avoid the mar-
riage on the ground of insanity of the latter.?

Where mental incapacity for marriage arises from
drunkenness, there is little authority as to whether it is
voidable or void, but it is presumed that most courts
would regard it as voidable merely at the option of the
drunkard within the rule last stated for insanity proper,
and would deem it ratified by any words or conduct after
sobriety showing an intention to treat it as valid, without
any further ceremony or celebration.®

PHYSICAL INCAPACITY

47. In General.

By the ecclesiastical law, adultery and cruelty were
the only grounds for divorce, and the decree for those
causes was a mensa et thoro and not a vinculo matrimonii.*

256; Crump v. Morgan, 3 Ired. Eq. (N. Car.) 91, 40 Am. Dec. 447,
Sims v. Sims, 121 N. Car. 297, 40 L. R. A. 737, and note. See Ward ».
Dulaney, 23 Miss. 410, 433.

1Cole v. Cole, 5 Sneed (Tenn.), 57, 70 Am. D. 275; Wightman ».
Wightman, 4 Johns. Ch. (N. Y.) 343; Sabalot v. Papulus, 31 La. Ann.
854; Prine v. Prine, 36 Fla. 676, 34 L. R. A. 87.

2 Hancock v. Peaty, L. R. 1 P. & D. 335, 341. Otherwise where
knowledge of the insanity was lacking. Durham ». Durham, L. R.
10 P. D. 80; Keys v. Keys, 22 N. H. 553.

$ Prine v. Prine, 36 Fla. 672, 34 L. R. A. 87. See Barber v. People,
203 Til. 543, holding such marriage valid and sufficient to uphold a
prosecution for bigamy unless annulled by a court of competent ju-
Tisdiction.

‘See ante, secs. 35, 36; post, secs. 350, 355.
46 CAPACITY TO MARRY

For impotency, however, the ecclesiastical sentence was
not technically of divorce, but of nullity, the marriage
being valid for all purposes unless a decree of nullity
was obtained in the lifetime of both parties, but void ab
initio when such a decree was so pronounced.!

The statutes of many of our states, however, treat
impotency as a ground for divorce rather than nullity.
While this is not in entire accord with legal history and
precedent, it is perhaps the better plan, for it affords the
court opportunity to give the plaintiff wife the alimony
to which she is often justly entitled in such cases, and
which could not be awarded under the nullity theory of
the common or ecclesiastical law.?

The theory upon which nullity or divorce for impotency
is based is that in this practically incurable condition of
one of the parties none of the primary ends and aims of
marriage can be attained, and that a lawful indulgence
of the passions, with its consequent check upon immoral
and unlawful connections, is impossible.* So, it is said’
that one who enters into a marriage knowing his or her
incapacity to consummate it, commits a fraud upon the
other party, though it has been held that it is not sucha
fraud as will entitle a court of equity to grant a decree of
nullity or divorce in the absence of statute authorizing it.‘

48. Impotency Defined—What Constitutes.

From the strict standpoint_of matrimonial law, impo-
tency (corporal imbecility) means such practically in-
curable physical or psychological defect or peculiarity
in either or both spouses, existing at the time of marriage,
as precludes substantially normal sexual intercourse be-
tween them.®

1See ante, sec. 35; Anon., 24 N. J. Eq. 19.

2See 2 Nels. Div. & Sep., sec. 704.

3 Deane v. Aveling, 1 Rob. Ecc. 279, 298, 299.

4See Anon., 24 N. J. Eq. 19; Burtis ». Burtis, 1 Hopk. Ch. (N. Y.)
557, 14 Am. Dec. 563; Benton ». Benton, 1 Day (Conn.), 111, 114;
post, sec. 50.

§ See Bish. Mar. Div. & Sep., sec. 766; Briggs ». Morgan, 3 Phillim.
CAPACITY TO MARRY 47

To warrant a decree of nullity or divorce on the ground
of impotency the defect or peculiarity must have existed
at the time of marriage.!_ Furthermore, it must be incura-
ble or permanent, and it will be deemed so, though curable
in fact, if the defective party refuses to submit to reason-
able measures for its cure.”

The mere refusal of marital rights or neglect to exercise
them is not impotency, though it may help to prove it
when taken in connection with other facts.? Furthermore,
it must be understood that capacity for copula, and not
fruitfulness, is the test of impotency, and where substan-
tially normal coitus can be had the barrenness of the
woman or sterility of the man is immaterial.‘

But though copula is possible there may still be im-
potency within the meaning of the law if it can only be
accomplished at the expense of great suffering,’ or at
great risk to the life or health of one of the parties. The
common example of this last form of impotency is where
the defendant is afflicted with venereal disease.* Indeed,
325, 1 Eng. Ecc. 408; Deane v. Aveling, 1 Rob. Ece. 279, 298; S——
vy. S——, 192 Mass. 194,-116 Am. St. R. 240, and notes; J. G. ».
H. G., 33 Md. 401, 8 Am. R. 183. The parties may be relatively
rather than positively impotent. A decree should nevertheless be
granted. See Essex v. Essex, 2 How. St. Tr. 785; S—— v. S——, supra.

1 Bascomb »v. Bascomb, 25 N. H. 267; Norton v. Norton, 2 Aik.
(Vt.) 188; Devanbaugh v. Devanbaugh, 5 Paige (N. Y.), 554, 28 Am. D.
443: Griffith v. Griffith, 162 Ill. 368.

2 Stagg v. Edgecomb, 3 Swab. & T. 240; L—— ». L——,7 P. D.
16; Griffith ». Griffith, supra; Ferris ». Ferris, 8 Conn. 166; Devan-
baugh v. Devanbaugh, 6 Paige (N. Y.), 175; Bascomb v. Bascomb, supra;
J. G. v. H. G., 33 Md. 401, 3 Am. R. 183.

Ferris v. Ferris, supra; Merrill ». Merrill, 126 Mass. 228.

4 Deane v. Aveling, 1 Rob. Ecc. 279, 299; Anon., 89 Ala. 291, 18 Am.
St. R. 240, 7 L. R. A. 425; Payne v. Payne, 40 Minn. 467, 24 Am. St.
R. 240; Wendel ». Wendel, 30 App. Div. 447, 52 N. Y. Supp. 72. Where
the parties are advanced in years barrenness or sterility may naturally
be expected, but whether the age of the parties marrying may debar
either from relief for the impotency of the other is not clear. See
Shafto v. Shafto, 28 N. J. Eq. 34, and authorities cited.

5§—— », S——, 192 Mass. 194, 116 Am. St. R. 240.

* Ryder v. Ryder, 66 Vt. 158, 44 Am. St. R. 833.

 
48 CAPACITY TO MARRY

concealment of such a disease by one spouse would ordi-
narily constitute such a fraud upon the other as would
warrant a decree of nullity for that cause.!

So long as it existed at marriage, continues until the
time of the trial and then appears practically incurable,
the origin, form or nature of the impotency is immaterial.
It may consist of a positive physical malformation or
defect,” or it may even be nervous or psychological in its
nature, though naturally where a difficulty of the latter
kind is claimed the courts proceed with much caution,
as mere refusal to submit to intercourse is not impotency,
provided intercourse is possible,* though it may be cruelty
or desertion within the meaning of divorce acts.*| Further
as to the precise form, nature and extent of the incapacity
the reader is referred to special treatises on marriage and
divorce and to works on medical jurisprudence.

49. Who Entitled to Decree.

The capable party is usually entitled to a decree of
divorce or nullity on the ground of impotency, unless, of
course, the defect of the other was known at the time of
marriage. Whether a party who marries in ignorance
of his or her own impotency may have a decree for that
cause seems uncertain. In one case it was allowed, though
the rule would probably be otherwise if the ignorance
were culpable.® :

That the parties have entered into a deed of voluntary
separation is no defense to a suit for nullity on the ground
of impotency.® :

1 Hooe v. Hooe, 122 Ky. 590, 5 L. R. A. (N. 8.) 729; Smith v. Smith,
171 Mass. 404, 68 Am. St. R. 440, 41 L. R. A. 800; Stevenson v. Steven-
son, 178 N. Y. 54. Compare Vondal 2. Vondal, 175 Mass. 383, 78
Am. St. R. 502. See post, sec. 71.

2 Deane ». Aveling, 1 Rob. Ecc. 279, 298; G. v. G., 33 Md. 401.

3 See Essex v. Essex, 2 How. St. Tr. 785; Merrill ». Merrill, 126 Mass.
228.

4 See post, secs. 358, 369.

5A. v, A. 19 L. R. Ir. 403. And see 1 Bish. Mar. Diy. & Sep.,

sec. 792, and notes.
‘J. G.v. H. G., 33 Md. 401, 3 Am. R. 183.
CAPACITY TO MARRY 49

50. Jurisdiction to Render Decree.

In nearly all states jurisdiction to decree divorce or
nullity of marriage for the impotency previously described
is conferred by statute. It has been held, however, that
as impotency was originally a canonical impediment
rendering the marriage voidable and not void, equity
has no inherent power to decree it void for that cause,
even where it was concealed from the complainant at the
time of marriage.!

51. The Evidence of Impotency.

Where the issue is impotency, the mere indecency or
indelicacy of the evidence is no ground for excluding it.
The existence of the alleged impotency at the time of
marriage, its continuance afterward, and its incurable
nature must be shown by satisfactory proof, and the
burden is upon the party alleging it.?- It is not our pur-
pose to discuss the evidence in detail. The testimony
is naturally apt to be medical and technical. In doubtful
cases or where there is suspicion of collusion, the court may
order a medical inspection; but whether it may compel
it against the will of the defendant is a question upon
which the courts do not agree.? The refusal of the de-
fendant to submit to a physical examination when ordered
by the court, however, has been held sufficient evidence
upon which to base a decree where there was no ground
to suspect collusion.* Such an examination will never
be compelled or even ordered, however, save where it is
practically necessary to enable the court to reach a right
conclusion.

1 See ante, sec. 47.

2 Brown v. Brown, 1 Hagg. Ecce. 523; Devanbagh ». Devanbagh, 5
Paige (N. Y.), 554, 28 Am. D. 443; Lorenz ». Lorenz, 93 IIl. 376.

* The cases on this point down to 1895, are cited or discussed in 2
Nels. Div. & Sep., secs. 697 et seq.

‘Dorion v. Laurent, 17 L. C. Jur. 324. It seems that a wife com-
plaining of her husband’s impotency must submit to such an exami-
nation if ordered, to show that the fault is not with her, or have her
bill dismissed. Anon., 89 Ala. 291, 18 Am. St. R. 116, 7 L. R. A. 425.

4
50 CAPACITY TO MARRY

52. Other Impediments Based upon Personal De-
fects.

Legislation tends to extend rather than to restrict the
impediments to lawful marriage in the interest of the
public and of posterity, regardless of the ability of the
parties to satisfy the technical requirement of consent
to marriage or their physical ability to consummate it.
Thus, in Connecticut, any couple, either of whom is
epileptic, imbecile or feeble-minded, is forbidden to marry
when the woman is under forty-five years of age; and any
selectman or other person who aids in. procuring such
union, or the marriage of a pauper when the woman is
under that age, is liable to severe penalties. The Connect-
icut statute has been construed as directory merely, so
that a marriage in violation of it is valid, if in other re-
spects in conformity to law.+

Similar legislation exists in a number of other states.?

1See Gould v. Gould, 78 Conn. 242.

2 See Freund’s Police Power, sec. 124; General Laws of Minn., 1901,
334-335; Mich. Pub. Acts, 1899, 387, which include syphilitics; Ses-
sion Laws of Kan., 1903, 373-374, extending to children of insane;
Laws of Ohio, 1904, p. 83; Laws of Ind., 1905, Chap. 126; Laws of
Wis., 1907, Chap. 642, St. sec. 4593m. As to postnuptial insanity as
a ground for divorce, see post, sec. 386.
CHAPTER IV

COMPETENCY TO MARRY CONTINUED-—RELATIONSHIP, DIF-
FERENCE OF RACE AND PRIOR MARRIAGE UNDISSOLVED
-—IMPEDIMENTS FOLLOWING DIVORCE

53. Relationship as an Impediment—In General.

Not only is intermarriage between persons nearly re-
lated by blood (consanguinity) prohibited by the law
of all civilized nations, but sexual intercourse between
them is universally punishable as a crime distinct from
adultery or fornication, and is called incest. Indeed the
laws and usages even of barbarous or semicivilized peo-
ples are so practically unanimous on condemning sexual
relations between close kindred in blood that it is now
quite generally assumed, independently of religious or
scriptural grounds, that they are abhorrent to the very
nature of man. In further support of modern legal rules
on the subject, we have the aid of science and common
experience, which have demonstrated beyond a doubt
that intermarriage of near blood relations tends toward
weak and degenerate offspring.!

Relationship by marriage (affinity) presents a more
perplexing problem, for it cannot be assumed that such
relationship in itself tends to deteriorate the race. From
a purely civil point of view the worst that can be said of
marriage between those so related is that it tends toward
a confusion of those rights and duties which are directly
or indirectly incident to the family relation.

' 64. Same—The Law of England.
The law of England upon the subject of intermarriage
1 See Howard’s Hist. Mat. Inst. 121 et seq. But see Huth’s The Mar-
riage of Near Kin (London, 1887).
51
52 CAPACITY TO MARRY

between those related by blood or marriage, was based
upon the Old Testament prohibitions contained in the
eighteenth chapter of Leviticus,! and prohibited marriage
between those related either by consanguinity or affinity
within the third degree, according to the civil law reck-
oning. By this system of reckoning, commencing with
either of the persons related, the degrees were counted
upward to the common ancestor and then downward to
the other person, counting one degree for each person
both ascending and descending.? Thus, brother and sister
are related in the second degree, and nephew and aunt or
uncle and niece in the third degree, while cousins are
related in the fourth degree and hence were competent
to marry.

In the case of relations by affinity, a husband and wife
being deemed one flesh, the blood relations of each were
deemed related to the other in the same degree, hence the
husband could not marry his wife’s sister, for she was
related to him in the second degree; neither could he
marry his wife’s mother or aunt, for they were related
to him in the first and third degrees respectively.? In the
English law, relationship by affinity as an impediment
to marriage is not deemed severed by the death of either
party to the marriage that created it,* though it is deemed
terminated for all other purposes.’ The principal ques-

1See Taylor v. Wing, 2 Sw. & Tr. 278, 295; Reg. ». Chadwick, 11
Q. B. 205, 63 E. C. L. 205; Brook v. Brook, 9 H. L. Cas. 193. See also
Stat. 32 Henry VIII, Chap. 38.

24 Kent’s Com. 412.

’ For a table of the prohibited degrees of relationship by consan-
guinity and affinity as published by Archbishop Parker and generally
acted upon by the English courts, see 1 Bish. Mar. Div. & Sep., sec. 739;
2 Nelson’s Div. & Sep., secs. 711, 712; Schouler’s Dom. Rel. (5th Ed.),
sec. 16.

‘2 Kent’s Com. 84; Butler v. Gastrill, Gilb. Ch. 156; Kelley ». Scott,
5 Gratt. (Va.) 479; Tagert v. State, 143 Ala. 143, 111 Am. St. R. 17.

5See Blodgett v. Brinsmaid, 9 Vt. 27; Carman v. Newell, 1 Denio
(N. Y.), 26. But see as establishing the same rule even for marriage
in this country, Spear v. Robinson, 29 Me. 531; Blodgett v. Brinsmaid.
CAPACITY TO MARRY 53

tion as to the wisdom, morality and policy of forbidding
affinitive marriages in England has chiefly revolved around
so much of the rule as precludes marriage with a de-
ceased wife’s sister, which has been absolutely void by
statute in that country since 1835.' After repeated at-
tempts to change the law, a statute has finally been
passed permitting marriage with a deceased wife’s sister
and legalizing such marriages.?

55. Same—The American Law.

The common law of England as above outlined is the
common law of our states. It has little practical appli-
cation now, however, because statutes quite generally
discard affinitive relationship as an impediment to mar-
riage though they usually prohibit marriage between blood
relations nearer of kin than first cousins, thus following
the supposed law of nature; and in some states marriage
between first cousins is forbidden. Still, affinitive rela-
tionships of certain kinds are impediments under the
laws of a few states.®

56. Effect of Marriage Within Prohibited Degrees of
Relationship.

By the common or ecclesiastical law, a marriage within
the prohibited degrees of relationship was usually void-
able. In other words, it was valid unless it was annulled
during the lifetime of the parties by a suit brought in
the spiritual courts for the direct purpose of having its
nullity declared,‘ unless incestuous by the law of nature,

supra. Same, as to children of the marriage, Trout ». Drawhorn, 57
Ind. 570.

1See 5 & 6 Wm. IV, Chap. 54.

2See Stat. 7 Edward VII, Chap. 47.

3 See statutes in Ala., Ga., Mich., Miss., Md., N. J., N. Mex., R. L.,
Dist. Col., N. Dak., 8. Dak., Okla., 8. Car. and W. Va. See Walter’s
App., 70 Pa. 392.

4 Ante, secs. 36, 37; Niles ». Chilton, 1 Rob. Ecc. 684; Bowers v.
Bowers, 10 Rich. Eq. (S. Car.) 551, 73 Am. D. 99; Sutton v. Warren,
10 Met. (Mass.) 451; Gathings ». Williams, 5 Ired. L. 487, 44 Am.
D, 49, and note.
54 CAPACITY TO MARRY

when it was probably void absolutely both by the eccle-
siastical and earlier common law.! In England since
1835,2 and now in most of our states, marriages within
the prohibited degrees of relationship are void by statute.
In a few, however, they are merely voidable in the eccle-
siastical sense, at least in the case of affinitive relation-
ship.* In computing relationship, whether at common
law or under statutes it is usually held immaterial that
either party was born out of wedlock, or that the rela-
tionship was of the half and not the whole blood.*

DIFFERENCE OF RACE AN IMPEDIMENT TO MARRIAGE

57. In General.

At common law miscegenation or the intermarriage
of persons of different races was permitted, and this is
the law in the majority of our states. By statute, how-
ever, particularly in the southern and southwestern states,
the intermarriage of whites and negroes or mulattoes, or
of whites and Indians, or whites and Chinese is prohibited,
and in many of them such marriages are made criminal.
Indeed, cohabitation or sexual intercourse between per-
sons of different races without intermarriage is sometimes
made an offense distinct from adultery or fornication.
Though some of these enactments doubtless originated in
race prejudice, they find rational support in the supposed
tendency of such unions to breed degenerate offspring,
and in the fact that they are particularly shocking to
the sense of propriety and decency prevalent in the com-
munities where such statutes exist.®

1 Sutton ». Warren, supra; Wightman ». Wightman, 4 Johns. Ch.
(N. Y.) 343.

2St. 5 & 6 Wm. IV, Chap. 54, sec. 2, known as Lord Lyndhurst’s
Act.

2 See Walter’s App., 70 Pa. 392. As to legitimacy of offspring un-
der void or voidable marriage, see post, sec. 455.

‘Reg. v. Brighton, 1 B. & 8. 447; Haines ». Jescott, 5 Mod. 168;
Morgan ȴ. State, 11 Ala. 289. But see State v. Roswell, 6 Conn. 446.

5 See Scott v, State, 39 Ga. 323; State v. Jackson, 80 Mo. 175; Est.
of Walker, 5 Ariz. 70. As to slave marriages see post, sec. 59.
CAPACITY TO MARRY 55.

58. Same—Constitutionality and Effect of Statutes.

The statutes against miscegenation are generally held
constitutional, whether enacted before or after the adop-
tion of the fourteenth amendment or the civil rights bill
of 1866, and in spite of similar provisions in the constitu-
tions of particular states, at least where no discrimination
is made against the colored race as to penalties or other
consequences of violation.! The statutes are far from
uniform in their language, and identical or similar statu-
tory terms have often been differently interpreted in dif-
ferent states. For this reason no attempt will be made
to review them or the decisions construing them.? Some-
times the statutes themselves furnish the rule of interpre-
tation by indicating the precise admixture of African or
other non-Caucasian blood that shall render void a mar-
riage or penalize sexual relations between persons of
different races.’

Statutes forbidding marriage between the races usually
contain express words of nullity, and when this is so such
a marriage is absolutely void in every sense of the term,‘
and its issue is illegitimate. If the statute contains no
words of nullity, however, the marriage is valid, whatever
penalties the law may denounce against the parties or
the celebrant.®

1Cooley’s Const. Law, 228, 229; Pace v. Alabama, 106 U. S. 583;
Green »v. State, 58 Ala. 190, 29 Am. R. 739; Ex parte Francois, 3
Woods (U. S.), 367; Frasher ». State, 3 Tex. App. 263, 30 Am. R. 131;
State v. Jackson, supra.

2 See, however, State ». Milton, 44 N. Car. 49, 50; In re Natick, 7
Mass. 88; State ». Watters, 3 Ired. (N. Car.) 455; McPherson ». Com.,
28 Gratt. (Va.) 939; Bailey v. Fiske, 34 Me. 77, and cases in the pre-
ceding note; Jones ». Com., 80 Va. 538. These statutes are largely
cited and reviewed in 2 How. Hist. Mat. Inst. 438, 478. See also as
to the meaning of the term negro, State v. Treadway, 52 So. 500 (La.,
1910).

* See for example, statutes in Ky., Ind., Tex. and Va.

4Carter v. Montgomery, 2 Tenn. Chan. 216; Succession of Mini-
veille, 15 La. Ann. 342.

51 Bish. Mar. Div. & Sep., sec. 691; Carter ». Montgomery,
supra.
56 CAPACITY TO MARRY

The extraterritorial validity of a marriage as affected
by these statutes is elsewhere discussed.!

59. Civil Status—Slave Marriages.

The status of slave marriages has been considerably
discussed and variously determined, but as few questions
are likely to arise under them, and most of these are
naturally of legitimacy and the consequent right to in-
herit, the reader is referred to the larger works on mar-
riage and divorce. While a slave marriage was commonly
deemed void or imperfect, still the courts have been in-
clined to regard it as valid and its issue as legitimate
where the parents continued cohabitation after emancipa-
tion, and in some states the question is affected by statute.?

PRIOR MARRIAGE UNDISSOLVED

60. In General—Bigamous Marriage Void.

The law of England and America is strictly monogamous
and refuses to recognize a plurality of husbands or wives.
It follows from this that if one whose husband or wife
is living and undivorced, in form marries again, the sec-
ond contract or ceremony is void for all legal purposes.*

While bigamy or polygamy (the terms are now syn-
onymous) was not a crime at common law, though pun-
ishable canonically, it has long been criminal under English
statutes, and is a statutory offense in all our states and
territories.‘

The criminal statutes against polygamy have no direct
bearing upon the civil effect of a polygamous marriage,
and in the absence of statute it is absolutely void. No
decree of nullity is necessary to avoid it, and its invalidity

1 See post, sec. 99.

?See Pierre ». Fontinette, 25 La. Ann. 617; Irving ». Ford, 183
Mass. 448, 65 L. R. A. 177, 97 Am. St. R. 447; Wallace ». Kimball, 35
Fla. 49, 26 L. R. A. 746; Wood ». Cole, 25 Tex. Civ. App. 378; State ».
Melton, 120 N. Car. 591.

3 See post, next sec., note 5.

4See Bish. Stat. Crimes, secs. 577, 618.
CAPACITY TO MARRY 57

may be shown at any time in any court by any person,
regardless of the moral guilt or innocence of the parties.!
So, if one party is competent to marry and marries another
who is incompetent by reason of a prior marriage undis-
solved, the former may lawfully contract a new marriage,
though the polygamous one has not been annulled. But
the burden of proving a prior marriage to impeach a later
one is usually upon the party alleging it, a matter later
discussed.

61. Collateral Results.

If a marriage is void as polygamous, it follows that
whatever is dependent upon it is void or illegal also.
Thus, the children of such marriage are illegitimate, in the
absence of statute, whether their parents intermarried in
good faith or not. The woman cannot have dower,‘ nor
the man curtesy, or any other conjugal right or interest
dependent upon marriage.®

1 Bruce v. Burke, 2 Add. Ecc. 471, 2 Eng. Ecc. 381; Cartright ».
McGown, 121 Ill. 388, 2 Am. St. R. 105; Blossom v. Barrett, 37 N. Y.
434, 97 Am. D. 747; Patterson v. Gaines, 6 How. (U. 5S.) 550; Fenton ».
Reed, 4 Johns. (N. Y.) 52, 4 Am. D. 244.

2 Patterson v. Gaines, supra; Reeves v. Reeves, 54 III. 332; Peet v.
Peet, 52 Mich. 464; Randlett ». Rice, 141 Mass. 385; Williams ».
Williams, 63 Wis. 58, 53 Am. Rep. 253.

*See post, sec. 455.

4 See post, sec. 206.

5 See post, sec. 196. Statutes in two states render a bigamous mar-
riage in some sense voidable rather than void in certain cases. Thus,
the New York Code declares that if any person whose husband or wife
shall have absented himself or herself for a space of five successive
years without being known to such person to be living during that
time, shall marry during the lifetime of such absent husband or wife,
the marriage shall be void only from the time its nullity shall be an-
nounced by a court of competent authority. The provision of the
California Code is substantially the same. As these statutes are now
interpreted, if the second marriage was contracted in good faith the
first one is practically in abeyance until one of the three parties ob-
tains a decree pronouncing the second marriage void. Until this is
done the first marriage is suspended or in abeyance, notwithstanding
the return of the absentee. Gall v. Gall, 114 N. Y. 109; Estate of
Harrington, 140 Cal. 244, 294, 98 Am. St. R. 51, and cases cited. It
58 CAPACITY TO MARRY

62. Status of Parties Where First Marriage Is Dis-
solved.

If a first marriage is dissolved by death or divorce, what
effect has this circumstance upon a second and bigamous
one? As the latter is void, it is technically incapable of
ratification.! But it is generally held, aside from statutes .
such as those of New York and California, that if the
parties to the bigamous marriage united innocently and
continued to cohabit as husband and wife, and to recog-
nize one another as such after knowledge that the first
marriage was dissolved, the presumption is very strong
that a valid marriage took place between them after the
impediment of the first was removed, and this presump-
tion would be particularly strong where a common-law
marriage is valid.”

63. Belief That Prior Marriage Was Dissolved.

The belief of either party to a bigamous marriage that
the prior marriage was terminated by death or divorce
does not render the second marriage valid. The greatest -
effect that such belief can have is to render the issue of the
second marriage legitimate under statutes,’ to save one
or both of the parties from prosecution under the bigamy
acts, or from being deemed guilty of adultery as against
a prior subsisting marriage.*

IMPEDIMENTS FOLLOWING DIVORCE

64. Marriage After Void or Voidable Decree.
A decree of divorce void for want of jurisdiction does

has been held to follow from this that if any one of the three parties
dies before the second marriage is judicially annulled, the children of
such second marriage would be legitimate, and that the second hus-
band or wife would have full rights under the second marriage for
purposes of succession, though not under the first. See 1 Bish. Mar.
Div. & Sep., secs. 283, 718; Estate of Harrington, supra; Griffin ».
Banks, 24 How. Pr. (N. Y.) 215.

1 Thompson ». Thompson, 114 Mass. 566.

2 See post, sec. 107. ’

3 Pratt v. Pratt, 157 Mass. 503, 506.

4See post, sec. 352.
CAPACTTY TO MARRY 59

not dissolve the marriage, and the invalidity of such decree
may usually be asserted by any party in any proceeding.
A second marriage on the basis of such decree is therefore
bigamous and void.!

A decree procured by fraud, however, is commonly
voidable, and can be avoided only at the instance of the
party defrauded in a direct proceeding to have its nullity
declared.? Until it is so avoided, a second marriage of
the defrauding party will be valid, but void ab initio from
the time the fraudulent decree is vacated or set aside.®

65. Marriage After Limited Divorce or Decree Nisi.

A divorce a mensa et thoro does not dissolve the mar-
riage tie, but merely suspends some of its obligations, and
marriage with a third person upon the basis of such decree
is absolutely void. Marriage after a decree nisi, but
before it is made absolute, is a nullity.®

66. Impediments Following Absolute Divorce.

It is competent for the legislature to provide that upon
the granting of an absolute divorce neither party shall
marry again, either generally or during a limited time, or
to denounce such penalty against the guilty one,® or to
authorize the court to impose it.

The wisdom of such provisions may well be doubted,
at least where they do more than forbid marriage of the
guilty party with the particeps criminis.’ Even this tends,
in many cases, toward the perpetuation of the very scan-
dal that gave rise to the divorce.

1.Litowitch v. Litowitch, 19 Kan. 451, 27 Am. R. 145; State v. Ar-
mington, 25 Minn. 29; Hardy »v. Smith, 136 Mass. 328. But see post,
sec. 431.

2 See post, secs. 432, 434.

3 Edson v. Edson, 108 Mass. 590, 11 Am. R. 393; Everett v. Everett,
60 Wis. 200; post, sec. 432.

4 See post, sec. 327.

5 Pratt v. Pratt, 157 Mass. 503, 507; post, sec. 430.

6 Thompson v. Thompson, 114 Mass. 566.

7 Owen v. Bracket, 7 Lea (Tenn.), 448.
6U CAVACTEY TO MARRY

Whether remarriage in the face of a statutory prohibi-
tion is a nullity or not depends upon the terms of the
statute. Mcrely forbidding divorced parties to marry
again, or even penalizing such remarriage, would not have
this effect.1 The statute must in express terms or by
necessary implication declare void a second marriage con-
trary to its terms, otherwise it is valid or at most voidable
only.2 The practical futility of such provisions as they
exist in many states at present will be understood by
reference to what is said elsewhere in discussing foreign
marriages and the conflict of laws.’

67. Marriage During Time for Appeal.

Where a divorce has been granted and there is a second
marriage pending an appeal, the second marriage is void
if the decree is vacated or reversed; otherwise it is valid.+
But the statutes in many states declare that neither party
shall be competent to marry a third person pending an
appeal or until the time for appeal has gone by, in which
case a marriage contracted in the meantime would be void,
at least if contracted within the state.° Where the statute
contains no express words of nullity, however, but a
second marriage pending appeal is merely declared un-
lawful or is forbidden, whether under penalty or not,
marriage in the face of it is, according to some authorities,
valid, unless the judgment of divorce is reversed,® while
others declare it void.’

1Conn v. Conn, 2 Kan. App. 419.

* Crawford ». State, 73 Miss. 172, 35 L. R. A. 224; Park ». Barron,
20 Ga. 702, 65 Am. D. 641; Mason v. Mason, 101 Ind. 25.

*See post, sec. 100.

‘ Allen v. Maclellan, 12 Pa. 328.

5In re Smith’s Est., 4 Wash. 702, 17 L. R. A. 573; McLennon ».
McLennon, 31 Oreg. 480, 38 L. R. A. 863, 65 Am. St. R. 835; Wil-
hite ». Wilhite, 41 Kan. 154; Cox ». Combs, 8 B. Monr. (Ky.) 231.

6 Allen ». Maclellan, supra.

7 Katon v. Eaton, 66 Neb. 676, 60 L. R. A. 605.
CHAPTER V

FRAUD, ERROR AND DURESS AS AFFECTING MARRIAGE

68. Fraud In General—Marriage Compared with En-
gagement to Marry.

That ‘‘fraud cuts down everything” is the general
maxim of law. The engagement of marriage is fully within
this rule, as has already been seen.! The status or relation
of marriage, however, is quite a different thing—a thing
in which the public has an interest and which should be
neither nullified nor dissolved except for the most cogent
reasons of justice and policy, which would exclude, as a
rule, all forms of deception not going to the very foundation
of the relation itself.? Clearly, after the marriage has been
consummated, and particularly after children have been
born or begotten and titles have been acquired in re-
liance upon it, the case must be exceptional in which courts
will annul it on the ground of fraud. Where, on the other
hand, there has been no consummation, and the injured
party proceeds promptly upon discovering the deception,
a fraud sufficient to induce a marriage that plainly would
not otherwise have been contracted, is often enough to
warrant a decree of nullity.’ Still the decisions cannot be
entirely harmonized by resort to these distinctions which
have in but few cases been expressly recognized by the

1 See ante, sec. 12.

2 Smith v. Smith, 171 Mass. 404, 68 Am. St. R. 440, 41 L. R. A. 800.
Compare 1 Bish. Mar. Div. & Sep., secs. 459, 460, with 2 Nels. Div, &
Sep., sec. 600. See Wier v. Still, 31 Ia. 107. That a man may main-
tain an action of deceit against one who has fraudulently induced him
to marry a woman of unchaste character, see Kujek v. Goldman, 150
N. Y. 178, 34 L. R. A. 156, 55 Am. St. R. 670.

’ Lyndon v. Lyndon, 69 Ill. 43; Robertson v. Cole, 12 Tex. 356;
Smith v. Smith, supra.

61
62 MARRIAGE PROCURED BY FRAUD

courts themselves. It should be remembered, however,
that voluntary consummation of the marriage with knowl-
edge of the fraud will bar the injured party from relief in
every case, and the same is true of continued voluntary
cohabitation after discovery of the facts. It should also
be borne in mind that in many cases where fraud was
claimed, the courts have annulled marriages, not because
of the character of the deception alone, but because of
concurrent elements of force, error and undue influence,
particularly when operating upon persons of youth and
inexperience or enfeebled intellect or will.”

69. What Misrepresentation or Concealment Suffi-
cient to Vitiate.

It is often said that misrepresentation or concealment
by one party concerning his or her health, wealth, character
or social position will not be sufficient ground for annulling
a marriage. In support of this rule it is sometimes said
that ‘these are not deemed within the essentials of the
marriage relation; sometimes that the law presumes that
they have been the subject of due and cautious inquiry,
and sometimes that public policy is involved.*

While this is undoubtedly the general rule irrespective
of consummation and the birth of issue, some extreme
cases in recent times have led to its relaxation. Thus,
where the plaintiff was induced to marry a notorious and
habitual criminal who represented himself as an honest
and industrious man, the marriage was annulled. In that
case there was no consummation.‘

1 See post, sec. 77.

? Portsmouth ». Portsmouth, 1 Hagg. Ecc. 355; Scott ». Seabright,
12 P. D. 21; Harford v. Morris, 2 Hagg. Con. 423, 4 Eng. Eee. 575;
Shoro ». Shoro, 60 Vt. 268, 6 Am. St. R. 118; Smith 7. Smith, 51 Mich.
607; Robertson ». Cole, supra; Moot v. Moot, 37 Hun (N. Y.), 288;
post, next section; 2 Nels. Div. & Sep., sec. 600.

3 Ewing v. Wheatley, 2 Hagg. Ecc. 175; Scott v. Seabright, 12 P. D.
21; Wier ». Still, 31 Ia. 107; Lewis v. Lewis, 44 Minn. 124,9 L. R. A.
505, 20 Am. St. R. 559; Varney v. Varney, 52 Wis. 120, 126.

* Keyes v. Keyes, 6 Misc. (N. Y.) 355. In King v. Brewer, 8 Misc.
MARRIAGE PROCURED BY FRAUD 63

70. Same—Prior Marriage, Unchastity or Pregnancy.

Concealment by a woman of her prior marriage, or
even her misrepresentation in that regard, is not a ground
of nullity or divorce in the absence of statute,’ and so of
her unchastity prior to marriage; for were it otherwise a
woman who had once fallen would in most cases have
forever closed to her the only avenue to respectability and
virtue.2 But where the woman at the time of marriage
conceals from her husband the fact that she is pregnant
by another, this is such a fraud as will warrant rescission
or a decree of nullity, provided the husband has not
himself been guilty of antenuptial incontinence with her.
The reasons given for this rule are that if a child be born
it will be presumptively the husband’s, though not his in
fact, and that a wife who comes to her husband in such a
condition is incapable of bearing him a child of his own.®
But even in such cases the fact that the wife yielded to
the husband before marriage is held to charge him with
notice that she may have yielded to others, and he is not
entitled to a decree, even though she falsely claims to be
pregnant by him though not really so,‘ or is actually preg-

(N. Y.) 587, much criticised, the husband, though known as a re-
spectable person, was in fact a thief and a gambler who conducted a
pool room. There was consummation, but no children, and the mar-
riage was annulled. See Wendel ». Wendel, 30 N. Y. App. Div. 482;
Wier »v. Still, supra.

1See Wendel v. Wendel, supra; Donnelly v. Strong, 175 Mass. 157,
and cases throughout this section.

2 Reynolds v. Reynolds, 3 Allen (Mass.), 605; Varney v. Varney, 52
Wis. 120, 38 Am. R. 726; Leavitt v. Leavitt, 13 Mich. 453; Allen’s
App., 99 Pa. 196, 44 Am. R. 101. Contra in spme states by statute,
see post, sec. 380.

4 Reynolds v. Reynolds, supra; Allen’s Appeal, supra; Baker v. Baker,
13 Cal. 87; Carris ». Carris, 24 N. J. Eq. 516; Harrison ». Harrison, 94
Mich. 559; Contra, Long v. Long, 77 N. Car. 304, 24 Am. Rep. 449.
See Steel v. Steel, 104 N. Car. 631. Contra also in England, Moss
v. Moss, P. D. 263, 274, 277 (1897), reviewing many American cases.

«Crehore v. Crehore, 97 Mass. 330; Todd ». Todd, 149 Pa. 60, 17
L. R. A. 320; Fairchild ». Fairchild, 43 N. J. Eq. 473. Compare Di Lo-
renzo v. Di Lorenzo, 174 N. Y. 467, 95 Am. St. R. 609.
64 MARRIAGE PROCURED BY FRAUD

nant by another and conceals or misrepresents the fact.'
Concealment by the woman of the birth of an illegitimate
child before the marriage is ordinarily no ground for avoid-
ing it, whether the husband was intimate with her or not.’

71. Same—Disease.

Concealment or false representations touching health
are not ordinarily such a fraud as will warrant rescission
or a decree of nullity.* But this rule is subject to excep-
tions, and it is held that where either party conceals the
fact that he or she is incurably afflicted with venereal
disease, the marriage may be annulled. The case is anal-
ogous to that of concealed impotency.‘ And the tend-
ency of the decisions seems toward the rule that the
concealment of any dangerous or loathsome and incurable
disease practically unfitting for the duties of marriage, at
least if it is liable to be communicated to the other party
or to the offspring of the marriage, should be considered a
ground of nullity, particularly where there are no children
whose rights might be affected.®

1Scott v. Schufeldt, 5 Paige (N. Y.), 43; Foss ». Foss, 12 Allen
(Mass.), 26; States ». States, 37 N. J. Eq. 195; Franke v. Franke (Cal.,
1892), 18 L. R. A. 375. Contra, Sissung v. Sissung, 65 Mich. 168, by
a divided court. Contra also under Iowa Code, Wallace v. Wallace,
137 Ia. 37, 14 L. R. A. (N.S.) 544.

?Smith ». Smith, 8 Oregon, 100. But see Scott v. Schufeldt, supra,
in which the marriage was annulled for the concealment of the birth
of a colored bastard to the wife, both parties being white, in spite
of antenuptial incontinence between them, where the husband, who
had not seen the child, believed it to be his. See note to Long ». Long,
in 24 Am. R. 453. See also Scroggins v. Scroggins, 3 Dev. L. (N. Car.)
535.

3 Ante, secs. 14, 15; Lyon ». Lyon, 280 Ill. 266, 13 L. R. A. (N. S.)
996, and note.

4‘ Smith ov. Smith, 171 Mass. 404, 68 Am. St. R. 440, 41 L. R. A. 800;
Ryder v. Ryder, 66 Vt. 158, 44 Am. St. R. 833; Anon., 21 Misc. (N. Y.)
765. See Vondal v. Vondal, 175 Mass. 383, where a decree was re-
fused, the disease being in a non-contagious stage and probably cur-
able.

5 Meyer v. Meyer, 49 How. Pr. (N. Y.) 311. In Gould », Gould, 78
MARRIAGE UNDER MISTAKE OL DURESS 65

MISTAKE AND DURESS

72. Mistake.

The books afford but few illustrations of this ground of
invalidity, for in marriage, as in contracts proper, the error
must be fundamental in order to affect its validity. It is
doubtful if there is any mistake unmixed with fraud that
would affect the validity of a marriage, unless it be a clear
mistake by one party as to the identity of the other.!

73. Duress—In General.

Under this head there seems to be little that is wholly
special to marriage, for duress implies actual constraint
of the will by threats or imprisonment, so that what on
its face appears to be consent is not such in fact.2, What-
ever would be sufficient duress to avoid an ordinary con-
tract, therefore, would ordinarily avoid a marriage.®

74. Same—From Whom Duress Must Proceed.

It has been held that where a party is induced to marry
by the duress of third persons, the marriage is binding un-
less it appears that the other party to the marriage in-
duced or sanctioned it, or at least knew it at the time of
the marriage.* But this has been denied and such a‘mar-
riage held invalid where duress by third persons was shown,

Conn. 242, the marriage was annulled on the ground of fraud though
there was consummation and the birth of issue, where the defendant
was an epileptic and concealed the fact. In this state the marriage of
an epileptic, though valid in the absence of fraud, is forbidden under
penalty. See ante, sec. 52. For contrary rulings where there are no
such statutes, see Lewis ». Lewis, 44 Minn. 124, 9 L. R. A. 505; Lyon
v. Lyon, 230 Ill. 266, 13 L. R. A. (N. 8.) 996.

1See 1 Bish. Mar. Div. & Sep., secs. 529 et seq.; Rex v. Burton
upon Trent, 3 M. & S. 537; Delpit ». Young, 51 La. Ann. 923.

2 Cooper v. Crane (1891), P. D. 369, 376; Todd »v. Todd, 149 Pa. 60,
17 L. R. A. 320; ante, sec. 68.

sScott v. Seabright, 12 P. D. 21. And see 2 Nels. Div. & Sep.,
sec. 618; Avakian v. Avakian, 69 N. J. Eq. 89, 100.

‘Schwartz v. Schwartz, 29 Ill. App. 516; Sherman ». Sherman, .20
N. Y. Supp. 414.

5

wien tee cena ae
66 MARRIAGE UNDER DURESS

though there was no proof of conspiracy, or even of knowl-
edge by the party in whose favor the constraint was ex-
erted.!

75. Same—Arrest or Imprisonment.

Duress affecting marriage is perhaps most commonly
claimed where there is an arrest or a threat of arrest in
proceedings for bastardy or seduction. If a party in fact
guilty of such an offense is actually in lawful custody, and
marries to escape further imprisonment or other lawful
consequences of his wrong, the marriage,is clearly valid.?
And in cases where the plaintiff is actually guilty of seduc-
tion or bastardy, it is hardly likely that technical irreg-
ularities in the proceeding would change this result. But
where the arrest is unlawful and the defendant is in-
nocent of wrong, a marriage thereby induced would be
invalid; * and an arrest will be deemed unlawful which is
malicious in fact or without probable cause.*

76. Same—Threats of Arrest and Imprisonment.

If one who has been guilty of illicit intercourse with a
woman marries her through fear of possible or probable le-
gal or social consequences, but without threats or menaces,
he is clearly bound. But there are many recent author-
ities that hold, contrary to the older doctrine, that where
a contract is induced by threats of arrest and imprison-
ment it is voidable for duress, even though such threatened

1 Anderson v. Anderson, 147 N. Y. 719, affirming without opinion,
74 Hun, 56; Marks v. Crume, 16 Ky. L. R.'707. It is difficult to say
which of these conflicting rules is the better. The first accords with
the general rule in fraud, while the latter regards consent in fact as
an indispensable element in marriage.

? Scott v. Schufeldt, 5 Paige (N. Y.), 43; Williams ». State, 44 Ala.
24; State v. Davis, 79 N. Car. 603; Jackson ». Winne, 7 Wend. (N. Y.)
47; Sickles ». Carson, 11 E. C. Green, 440; Frost’y. Frost, 42 N. J. Eq.
55; Collins 7. Ryan, 49 La. Ann. 1710, 43 L. R. A. 814, 816, and note.

* Brandt ». Brandt, 41 Leg. Int. 54; Marvin v, Marvin, 52 Ark. 425,
20 Am. St. R. 191.

‘Smith ». Smith, 51 Mich. 605; Shoro ». Shoro, 60 Vt. 268,-6 Am.
St. R. 118. But see Scott v. Schufeldt, 5 Paige, 43.
MARRIAGE UNDER DURESS 67

arrest or imprisonment would be lawful and the party
threatened was actually guilty of the wrong charged
against him, provided the threats were made, not to force
restitution, but to gain some collateral advantage,! and
some courts go so far as to hold that even fair restitution
thus exacted is made under duress.? But we are not aware
of any cases where mere threats of a lawful prosecution
by or on behalf of a woman who has been seduced or got
with child have been held to avoid her marriage with the
party responsible for her plight, though there are many
holding such a marriage valid.? And it may be argued °
that this would be the proper doctrine in any jurisdiction
though not in accord with its general law of duress, for
commonly such threats are the only available means
whereby the woman and her friends can compel the only
reparation that would be adequate, not merely to her, but
to society itself.

77. Effect of Fraud, Mistake and Duress.

It is generally laid down that fraud, duress and error
render a marriage voidable and not void. But though the
authorities on this point are few and unsatisfactory, the
term voidable in this connection probably does not mean
that a marriage thus procured is valid until it is dis-
affirmed either in pais or in a suit for nullity, though a
proceeding of the latter sort is highly advisable; but-that
it is capable of being ratified, though until it is in some way
confirmed by voluntary cohabitation or otherwise, after
the fraud, duress or error has ceased to operate, it is in-
valid. Neither is it likely that the guilty party would be

1 See Fay v. Oatley, 6 Wis. 42, 55; Taylor v. Jacques, 106 Mass. 291;
Morrill ». Nightingale, 93 Cal. 452, 27 Am. St. R. 207.

2 Taylor ». Jacques, supra; Morse ». Woodworth, 155 Mass. 233;
Hartford Ins. Co. ». Kirkpatrick, 111 Ala. 456; Hensinger v. Dyer,
147 Mo. 219.

* Honnett v. Honnett, 33 Ark. 156, 34 Am. R. 39; Lacoste v. Gudroz,
47 La. Ann. 295; Seyer v. Seyer, 10 Stew. (N. J.) 210; Griffin ». Griffin,
130 Ga. 527, 16 L. R. A. (N. 8.) 937; Collins ». Ryan, 49 La. Ann. 1710,
43 L. R. A. 816, and note.

4 Avakian v. Avakian, 69 N. J. Eq. 89, 112; Hampstead v. Plaistow,
68 MARRIAGE UNDER DURESS

permitted to treat the marriage as invalid or have it so
declared, unless the other party had declared an intention
to treat it so.!

In one or two states a marriage procured by force or
fraud is made voidable in the strict sense by statutes
which provide, in substance, that it shall be void from
such time as its nullity shall be declared by a court of
competent authority, provided there has been no sub-
sequent voluntary cohabitation.’

These provisions, and similar ones relating to mental
incapacity, have been severely criticised on the ground
that their literal interpretation would simply lead to this:
that no matter how gross the fraud or overwhelming the
compulsion or great the mental incapacity, the parties are
married unless the incompetent or defrauded one brings
the grievance into court and procures a decree of nullity;
and if the latter dies before this has been done, the wrong-
doer has all the rights of a surviving husband or wife,
and still other evils are suggested.’

In all jurisdictions, however, voluntary cohabitation
or consummation after the deception, force or error has
ceased to operate is a ratification, and no repetition of the
ceremonial will be necessary to render it good.‘

Independent of statute, courts of equity have inherent
authority to decree the nullity of marriages procured by
fraud or duress, or entered into under mistake in a matter
deemed vital to the transaction.®

49 N. H.84. Compare Farley v. Farley, 94 Ala. 501, 33 Am. St. R.
141.

1 Farley v. Farley, supra.

? Rev. Stat. Wis., 1898, sec. 2350. See Eliot v. Eliot, 77 Wis. 634,
10 L. R. A. 568.

31 Bish. Mar. Div. & Sep., secs. 633 et seq.

‘Scott v. Schufeldt, 5 Paige (N. Y.), 43; Hampstead ». Plaistow,
49 N. H. 84, 98; Farley v. Farley, 94 Ala. 501, 33 Am. St. R. 141.

5 Avakian v. Avakian, 69 N. J. Eq. 89, 96, and cases cited in the
opinion. See also ante, sec. 47. As to the remedy by suit for damages
or otherwise where one has been defrauded into contracting a void
marriage, see post, secs. 328, 411,
CHAPTER VI

HOW MARRIAGE ENTERED INTO—-CONSENT AND SOLEMNI-
ZATION—-FORMAL AND INFORMAL CELEBRATION

78. Consent—In General.

The necessity for consent as an element of marriage
has already been discussed insofar as fraud, mistake and
duress are concerned. It now remains to consider what
must be embraced within the consent, and what for-
malities must precede or accompany it in order to con-
stitute marriage rather than a void or meretricious union.

79. Parties Must Mean Marriage.

In order that the consent or agreement of the parties
shall ripen into marriage, they must mean what the law
deems marriage and not something else. Thus, marriage
being legally a lifelong union of the parties, if their agree-
ment is simply that they will, for a certain specified time,
be husband and wife, no marriage results;! and it was so
held where the ‘agreement was for partnership and_ co-
habitation during the existence of mutual affection.? But
if the agreement contemplates what is substantially the
legal relation of husband and wife, yet stipulates for
incidents that are not legally recognized in that relation,
it may be that these collateral stipulations may alone be

1 See Letters ». Cady, 10 Cal. 533; Jewell v. Jewell, 1 How. (U. 8.)
219; Howe’s Est., Myr. Prob. (Cal.) 100.

2 Peck v. Peck, 155 Mass. 479; State v. Miller, 23 Minn. 352. So,
where a written contract provided that the parties should live to-
gether as man and wife so long as they could agree, no marriage ex-
isted between them. Randall’s Case, 5 City Hall Rec. (N. Y.) 141.
See also State ». Walker, 36 Kan. 297, 59 Am. R. 556, refusing recog-
nition to a so-called “free love” marriage. See also State v. Miller,
supra.

69
70 MARRIAGE—-CONSENT AND SOLEMNIZA'TION

void and the marriage binding. Thus, though the man
notified the woman before the ceremony that he would
not live with her afterward, the marriage was held good,'
and Mr. Bishop says, ‘‘if parties enter into marriage under
laws forbidding divorce, yet stipulate for the mutual
right to put each other away at pleasure, the marriage
will be held good, and the collateral agreement a mere
nullity, as contrary to the policy of the law.’””?

80. Same—Indian and Mormon Marriages.

Though the marriages of Indians while sustaining tribal
relations are understood to be subject to dissolution at the
will of the husband at least, or perhaps of either party,
they are generally held binding when entered into upon
tribal territory, in accordance with tribal custom.? This
has been held even though the husband was a white man,
the marriage taking place upon tribal territory in con-
formity to tribal law.‘

- The freedom of religion under state and federal guar-
antees can never prevent the punishment of crime, and
polygamy is none the less a crime because sanctioned or
encouraged by the teachings of a religious sect.’ Neither
can the religious belief of either or both parties to a polyg-
amous union override the rules and policy of the law so as
to give to it the civil consequences of lawful marriage.
Thus, it has been held that where an unmarried man at-
tempted by one ceremony to become simultaneously the

1 Brooke v. Brooke, 60 Md. 524. This is not an uncommon case
where marriage or an action for bastardy or seduction is the alterna-
tive offered the man.

21 Bish. Mar. Div. & Sep., sec. 302.

3 Wall ». Williamson, 11 Ala. 826; Johnson v. Johnson, 30 Mo. 72,
77 Am. D. 598; Earl v. Godley, 42 Minn. 361, 18 Am. St. R. 517, 7
L. R. A. 125; Kobogum ». Jackson Iron Co., 76 Mich. 498. Compare
State v. Ta-ha-na-tah, 64 N. Car. 614; Roche ». Washington, 19 Ind.
53, 81 Am. D. 376. See also La Riviere v. La Riviere, 97 Mo. 80.

4Johnson ». Johnson, supra. See also In re Walker, 5 Ariz. 70;
Matter of Wilbur, 14 Wash. 242; Tuten v. Buyrd, 1 Swan (Tenn.), 108.

5 Reynolds v. U. S., 98 U. S. 145; Davis », Beason, 183 U. S. 333;
Riddle v. Riddle, 26 Utah, 268.
MARRIAGE—CONSENT AND SOLEMNIZATION 71

husband of two women, he was married to neither, and his
subsequent marriage to a third did not constitute bigamy.!
So, in England even a Mormon first marriage celebrated
in Utah has been held void, on the ground that it did not
contemplate the lifelong union of one man and one woman,
which alone the law deems marriage. The court, however,
may perhaps have assumed that the law of Utah sanc-
tioned polygamy at the time of the marriage, a fact which
may well be doubted.? But even though the law of the
place where the marriage is celebrated sanctions polygamy,
if the parties really intend it to be monogamous it will be
valid in a monogamous country.®

81. Consent Must Be to Present, Not Future, Mar-
riage.

Mere words of future promise do not of themselves
constitute marriage, a matter elsewhere discussed.‘

82. Secret Intention of One Party Not to Marry—
Mock Marriage.

A marriage entered into where both parties are in jest
is void, though celebrated with due regard to the forms of
law.> But if one party only is in jest or intends a fraud,
but the other intends marriage and reasonably believes
that such intent is mutual, are the parties married? If
the exchange of promises is informal and takes place where
a common-law marriage is valid, there seems no doubt
that it would be good, notwithstanding the secret in-
tention or mental reservation of one of the parties that
no marriage should result, provided the transaction was
otherwise sufficient to constitute a common-law marriage.®

1U. 8. v. Snow (Utah), 9 Pac. 501.

2 Hyde v. Hyde, Law Rep. 1 P. & D. 130. See Hilton v. Roylance,
25 Utah, 129, 95 Am. St. R. 821, 58 L. R. A. 723.

?In re Bethell, 38 Ch. D. 220.

4See post, secs. 89, 90.

5 McClurgh v. Terry, 21 N. J. Hq. 225.

6 Lockyear v. Sinclair, 8 Scotch Sess. Cas. (N. 8.) 582; Imboden ».
Trust Co., 111 Mo. App. 220; Barnett v. Kimmell, 35 Pa. 13; Hilton v.
Roylance, 25 Utah, 129, 95 Am. St. R. 821, 58 L. R. A. 723.
72 MARRIAGE——-CONSENT AND SOLEMNIZATION

Neither would it make any difference that the parties
attempted a marriage in the form prescribed by statute
and that by the fraud of one of them or otherwise the
forms of law were not observed, as where a pretended
clergyman or magistrate was imposed upon one of them,
or a pretended license exhibited in place of a real one,
unless the statute was mandatory and not directory, a
distinction later explained.' If the statute were man-
datory, however, it seems that no marriage would result,
unless the ceremony was followed by cohabitation,” or un-
less the statute itself contained a saving clause covering
such cases, as it often does.®

1 Post, secs. 83 et seq.; Haggin v. Haggin, 35 Neb. 380; Farley v.
Farley, 94 Ala. 501, 33 Am. St. R. 141. But see Lee v. State, 44 Tex.
Crim. R. 354, 61 L. R. A. 904; Coad v. Coad (Neb., 1910), 127 N. W.
455.

2See Farley v. Farley, supra; Reg. v. Millis, 10 Cl. & F. 786, per
Lord Campbell.

3 See Reifenschneider ». Reifenschneider, 144 me App. 119. A man
who gains possession of a woman’s person by means of a fraudulent
and void marriage ceremony is no doubt civilly liable for deceit or
seduction, or perhaps criminally for seduction, or in some states for
statutory rape. See Lee v. State, 44 Tex. Cr. Rep. 354, 61 L. R. A.
904; State ». Wilson, 121 N. Car. 650.
CHAPTER VII

FORMAL AND INFORMAL MARRIAGE CELEBRATION—THE SO-
CALLED COMMON-LAW MARRIAGE

83. In General—How Far Formal Celebration Neces-
sary at Common Law—Statutory Changes.

Generally in this country in the absence of statutes
prescribing formalities for marriage, and often in spite of
them, the relation of husband and wife may be validly
assumed by mere consent of the parties without ceremony
or other formalities, civil or religious. A marriage so
entered into is often termed a common-law marriage,
both by lawyers and laymen.!

84. History of Informal Marriage.
The history of informal marriage as it exists in this

1 As to the policy of recognizing as valid marriages thus informally
entered into, there is much diversity of opinion. To deny them va-
lidity, it is argued, ‘‘would often enable shrewd rakes to entrap simple
girls into nature’s marriage, then at their whim or exalted pleasure to
cast them off, and leave a family of children under the disabilities and
disgrace of bastardy.” 1 Bish. Mar. Div. & Sep., secs. 386, 387, 388.
But there seems to be another side to the medal. How often, partic-
ularly after the death of a man of wealth, the so-called common-law
wife appears with claims which, if sustained, must bastardize the chil-
dren of a subsequent ceremonial marriage and strumpetize the hon-
est woman who bore them. Even if this result is not attained, the
name of a man who has perhaps for years led an exemplary life is be-
smirched by the record of some early folly, by which the public is
always edified though seldom improved. The doctrine of informal
marriage favors the harlot and the adventuress quite as much as the
rake, and the perennial trial of issues based thereon tends to lax and
imperfect notions of the nature, dignity and responsibilities of the
marriage tie, whether viewed as a sacrament or a purely civil institu-
tion, Aside from arguments based on religious creed or dogma, there
is much to be said on both sides of this question which appeals not so
much to the lawyer as to legislators and students of sociology.

73
74 MARRIAGE--CONSENT AND SOLEMNIZATION

country is briefly as follows: Prior to the Council of Trent
(1563), the subject of marriage was governed throughout
western Europe by the canon law. By this law no cere-
mony civil or religious was required for marriage, nor was
the presence of a priest or other person in holy orders
necessary, it being sufficient that the parties mutually
consented to the present assumption of the marriage
estate.! The early church, in fact, directed its energies
rather to the formulation and enforcement of rules as to
the impediments of affinity and consanguinity,? and to
the supervision of marriage as a sacrament, including
matters of divorce and remarriage, than to any positive
interference with the temporal forms through which the
marriage relation was assumed.’ But by the decree of the
Council of Trent the canon law was changed, and all
marriages were declared void unless solemnized by a
parish priest in the presence of two witnesses.* This
decree, however, was not received as authority in England
or Scotland.’ In view of this fact, it has been much de-
bated whether the general law of marriage as it stood
prior to the Council of Trent was the common law of
England, Scotland or Ireland, and whether in those
countries the presence of a person in holy orders was
necessary to a valid marriage. That the clerical presence
was unnecessary and that no formalities save the mutual
consent of the parties to the present, as distinguished
from the future, assumption of the marriage relation were
necessary was settled for Scotland at the beginning of
the last century,® and in England the question ceased to

* Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 4 Eng. Ecc. 485.

2 See ante, secs. 53 et seq. :

3 See 1 Howard’s Hist. Mat. Inst., Chap. VII.

4 Reg. v. Millis, 10 Cl. & F. 534.

’See Beamish v7. Beamish, 9 H. L. Cas. 274, 317; Dalrymple ».
Dalrymple, 2 Hagg. Con. 54, 4 Eng. Ecc. 485; Carmichael ». State, 12
Ohio, 558, 557.

®M’Adam ». Walker, 1 Dow. 148 (1813); Dalrymple ». Dalrymple,
supra.
MARRIAGE—CONSENT AND SOLEMNIZATION 75

have practical importance after the Marriage Act of 1753
pronouncing informal marriages void.! In 1843, however,
the celebrated case of Reg. v. Millis arose upon a marriage
celebrated in Ireland before a Presbyterian minister, who
had no authority to celebrate marriages there. There was
an exchange of words perfectly importing present mar-
riage. The union was consummated, and while the wife of
this marriage was living, Millis married again, and was
prosecuted for bigamy. The question, therefore, was
whether the first marriage would sustain the indictment,
and it was held by an equally divided court that it would
not. While the decision may possibly have been influenced
by certain statutes relating to Ireland, the case is regarded
as deciding that the presence of an ordained priest of the
established church was necessary to a valid marriage at
common law.?

85. Same—The Common Law in America.

Reg. v. Millis was of course decided too late to in-
fluence the common law of this country, except in states
where the validity of informal marriages had not already
been passed upon. Even in the latter states it has had
little if any influence,’ and the intervention of a clergyman
or one in holy orders, or indeed any other civil or religious
formality, has never been considered essential to a valid
marriage in the great majority of our states, independent
of statute. In few states, however, a contrary rule

1 26 Geo. II, Chap. 33.

210 Cl. & F. 534. The decision in this case has been severely criti-
cised by Dr. Bishop in 1 Mar. Div. & Sep., secs. 400 et seq., and by
English jurists, and was followed with evident reluctance in Beamish
». Beamish, 9 H. L. Cas. 274, 353.

3 But see Denison v. Denison, 35 Md. 361.

41 Bish. Mar. Div. & Sep., secs. 320, 340 et seq.; Hulett ». Carey, 66
Minn. 327, 61 Am. St. R. 419, 34 L. R. A. 384; Meister v. Moore, 96
U.S. 76; Hutchins ». Kimmell, 31 Mich. 126, 18 Am. R. 164; Teter ».
Teter, 101 Ind. 129, 135, 51 Am. R. 742; Hibblethwaite ». Hepworth,
98 Ill. 126; Dumarsley v. Fishley, 3 A. K. Marsh. (Ky.) 368. See also
cases cited in post, secs. 87, 92, 93.
                        

76 MARRIAGE

appears to obtain, founded, not upon the interpretation
of the common law in Reg. »v. Millis, for most of the local
decisions antedate it, but upon gimilar errors as to the
common law of England, or upon local customary law.'

86. How Far Common Law Superseded by Statutes.

In this country, therefore, informal marriages are quite
generally legal and valid in the absence of some statute
to the contrary. In all our jurisdictions, however, are
statutes prescribing formalities for marriage. In all of
them, probably, the presence of a clergyman or magistrate
is required, and in some a license must be obtained from a
proper public officer before a marriage can be lawfully
celebrated, and there are still other requirements, such as
the consent of parents or guardians of infants or of infants
under a certain age.”

But whether the statutes of any state render an informal
or common-law marriage void depends upon their con-
struction under rules to be next explained.

87. How Marriage Statutes Construed.

It is generally held that a statute that merely prescribes
certain formalities for marriage, without expressly or by
plain intendment declaring void a union that does not
comply with its terms, is not mandatory but directory
merely. Non-compliance may render the parties or those
officiating: liable to certain prescribed penalties, but the
marriage itself is valid if it fulfills the requirements of the
common law. In other words, mere non-compliance with
the statutory requirements as to form will not render a
marriage void if it is validly entered into as at common law,
unless the statute itself denounces nullity of the marriage
as the penalty for non-compliance. The reason given for
this rule usually is that marriage is a thing of common

1 See Denison v. Denison, supra; Milford ». Worcester, 7 Mass. 48, 53;
Com. 7. Munson, 127 Mass. 459, 34 Am. R. 411; State v. Wilson, 121
N. Car. 650. See also post, sec. 87.

2Sce ante, sec. 83, post, secs. 94 et seq.
MARRIAGE—CONSENT AND SOLEMNIZATION 77

right, and that statutes prescribing formalities for marriage
are in derogation both of common right and common-law,
and hence must be construed strictly, and will be deemed
to be intended merely to secure publicity and regularity
by the infliction of the penalties therein prescribed, unless
nullity of the marriage as a consequence of non-compliance
was plainly within the contemplation of the legislature.'!
A few courts, however, adopt a contrary rule, and construe
as mandatory, statutes that contain no words that plainly
or necessarily import nullity for non-compliance with the
formalities required by their terms.? It should be observed
however, that a statute may be mandatory as to certain
requirements or formalities and directory as to others,
as, for example, where it simply prohibits under penalty
the celebration of marriage without a license, or the
union of minors without parental consent, but pronounces
void all marriages not celebrated by a clergyman or
magistrate.®

88. The General Doctrine of Informal Marriage.
As we have already shown, the general rule in this

: Meister ». Moore, 96 U.S. 76; Port ». Port, 70 Ill. 484; Pearson ».
Howie, 6 Halst. (N. Y.) 12; Teter ». Teter, 101 Ind. 129; Dyer ».
Brannock, 66 Mo. 391; Hynes ». McDermott, 82 N. Y. 41, 37 Am. R.
263; Hargroves v. Thompson, 31 Miss. 211; Hutchins ». Kimmell, 31
Mich. 126, 18 Am. R. 164; Askew ». Dupree, 30 Ga. 173; State ».
Bittick, 103 Mo. 183, 11 L. R. A. 587, 23 Am. St. R. 869; State ».
Walker, 36 Kan. 297, 59 Am. R. 556; Reaves v. Reaves, 15 Okla. 240,
2L. BR. A. (N. §.) 353, and note. Coad v. Coad (Neb., 1910), 127
N. W. 457, and cases cited. See also post, secs. 92 et seq.

2In re McLaughlin’s Est., 4 Wash. 570, 16 L. R. A. 699. Compare
In re Hollopeter, 52 Wash. 41, 132 Am. St. R. 952; Beverlin v. Bever-
lin, 29 W. Va. 732. See Com. ». Munson, 127 Mass. 466, 34 Am. R.
411; Smith v. N. Memphis Sav. Bank, 115 Tenn. 12. Common-law mar-
riage is therefore possible and may be valid in probably all the states
save those indicated by the citations above, and in Vermont, Kentucky,
Louisiana, Maryland and perhaps in California. See 124 Am. St. R.
122, and authorities there collected.

’See Parton ». Hervey, 1 Gray (Masé.), 119; Norman ». Norman,
121 Cal. 620, 42 L. R. A. 343. See and compare In re McLaughlin’s
Est., supra, with In re Hollopeter, 52 Wash. 41, 182 Am. St. R. 952.
78 MARRIAGE;—CONSENT AND SOLEMNIZATION

country undoubtedly is, that if parties competent to
marry give mutual, intelligent and free assent, without
other formalities, to the present assumption of what the
law deems the marriage relation, they are from that
moment husband and wife, fully and for every legal
purpose in modern law, unless the marriage statutes of
the particular state where the assent is given are construed
as mandatory, as previously explained.1 What follows,
therefore, refers chiefly to the construction of those words
and acts by which the intention to marry is manifested.

89. Same—Consent per Verba de Presenti.

Where it appears that competent parties, with intent
to thereby enter into matrimony, have exchanged words
of present marriage, the transaction is described as mar-
riage per verba de presenti. The only question that can
arise where a marriage is contended to be of this sort is
one of construction of the language and conduct of the,
parties considered in the light of surrounding facts and
circumstances, provided there is no question of incapac-
ity or of fraud, error or duress.? The fact that copula or
cohabitation did or did not ensue between the parties is
immaterial in such cases except in so far as it may in-
fluence the interpretation of doubtful words or conduct,’
or lead to a presumption that an exchange of words of

1 Ante, secs. 83, 86; Hulett v. Carey, 66 Minn. 327, 61 Am. St. R.
419, 34 L. R. A. 384; Elzas v. Elzas, 171 Ill. 632, and cases cited.

*See Traverse v. Reinhardt, 205 U. 8. 423, 486; McKenna v. Mc-
Kenna, 180 Ill. 577; Elzas v. Elzas, supra; Adger ». Ackerman, 115
Fed. Rep. 124; State ». Hansboro, 181 Mo. 348; Hantz ». Seeley, 1
Binn. (Pa.) 405.

3 Dalrymple v. Dalrymple, 2 Hagg. Con. 54, 4 Eng. Ecc. 485; Frank-
lin v, Franklin, 154 Mass. 515, 26 Am. St. R. 266; Jackson ». Winne,
7 Wend. (N. Y.) 47, 22 Am. D. 563, and notes; Port ». Port, 70 Ill.
484; Hilton v. Roylance, 25 Utah, 129, 95 Am. St. R. 821; Carey 2.
Hulett, 66 Minn. 327, 61 Am. St. R. 419, 34 L. R. A. 384; Dumarsly 2.
Fishley, 3 A. K. Marsh. (Ky.) 368. Compare Hawkins v. Hawkins,
142 Ala. 571, 110 Am. St. R. 53; Topper v. Perry, 197 Mo. 531, 114
Am. St. R. 777, and cases cited. Ashley v. State, 109 Ala. 48; Coad ».
Coad (Neb., 1910), 127 N. W. 455.
MARRIAGE

 

CONSENT AND SOLEMNIZATION 79

present promise was previously had.!. The maxim is
consensus non concubitus facit matrimonium. But though
words of present marriage were exchanged, whether
written or oral, the parties are not married if they did
not so intend, but had in view some collateral purpose,
as the deception of friends or relatives.

90. Same—Consent per Verbae de Futuro, cum
Copula.

Even at common law, words of mere future promise
do not constitute marriage, nor does copula, or even
cohabitation apparently matrimonial. There must be
actual, mutual consent to the assumption of the marriage
relation. But if parties who have exchanged promises of
future marriage subsequently have copula, prima facie.
they then agree to present marriage, for the law puts an
innocent rather than a guilty construction upon their
acts and presumes that they ther intended marriage
rather than fornication in the absence of countervailing
evidence.? Parties held to be husband and wife under
this rule are said to be married per verba de futuro cum
copula. The rule as to this kind of marriage appears to
be one of evidence or presumption rather than of strictly
substantive law.’ It follows, therefore, that though words
of future promise were exchanged, it may always be shown
to rebut the presumption of marriage that no matri-
monial intent was actually entertained at the time of the
ensuing copula. The common case is where parties to a
mere engagement have copula while looking forward to a

1 See post, next section, and sec. 107.

2 Dalrymple ». Dalrymple, 2 Hagg. Con. 54, 4 Eng. Ecc. 485; Port
v. Port, 70 Il. 484; Peck v. Peck, 12 R. I. 485, 34 Am. Rep. 702.

3 See Dalrymple v. Dalrymple, supra; Topper v. Perry, 197 Mo. 551;
Marks v. Marks, 108 Ill. App. 371; Beaverson’s Estate, 47 Cal. 621,
and cases cited throughout this section.

4 Port v. Port, 70 Ill. 484; Stoltz v. Doering, 112 Ill. 234; In re Maher’s
Estate, 204 Ill. 25. See, however, 2 Greenl. on Ev., sec. 460; Dyer v.
Brannock, 66 Mo. 391, 27 Am. R. 359; Richard v. Brehn, 73 Pa. 140,
13 Am. R. 733.
3U MARRIAGE--CONSENT AND SOLEMNIZATION

formal solemnization as the actual starting point of their
matrimonial career.1 So where, notwithstanding words
of future promise, one of the parties is already married at
the time of the copula, no presumption of matrimonial
intent arises.2. And if, prior to the exchange of words of
future promise, the parties have been living together in
fornication, it is held that the fact of their subsequent
copula raises no presumption of marriage.’ Clearly no
presumption of marriage results from copula following
a promise of future marriage where the promise itself was
distinctly conditioned upon the copula, or upon preg-
nancy arising therefrom.‘

A few courts appear to repudiate the whole doctrine of
marriage per verba de futuro cum copula, while recog-
nizing the validity of the common-law marriage per verba
.de preesenti.®

FORMAL CELEBRATION OF MARRIAGE

91. In General.

As we have already seen, the prevailing rule in this
country is that the statutes that quite generally prescribe
formalities for marriage do not render void a marriage
entered into in disregard of them, unless in express terms
or by reasonably necessary construction they declare void
marriages in disregard of their requirements,’ whatever

1 Reg. v. Millis, 10 Cl. & F. 782; Peck v. Peck, 12 R. I. 485, 34 Am.
R. 702; Stoltz v. Doering, supra; Topper v. Perry, 197 Mo. 531.

2 Beverson’s Estate, 47 Cal. 621.

3 Spencer v. Pollock, 83 Wis. 215, 17 L. R. A. 145; Cartright v. Mc-
Gown, 121 Ill. 388, 2 Am. St. R. 105. See note to Cheney v. Arnold,
69 Am. D. 609. But see post, sec. 107.

4 Reg. v. Millis, 10 Cl. & F. 626. The promise in such case is not
even enforceable as an executory contract of marriage. Ante, sec.
11.

6 See Duncan v. Duncan, 10 Ohio St. 181; Cheney v. Arnold, 15 N. Y.
354, 69 Am. D. 609, and Dr. Bishop’s strictures on these cases in
1 Mar. Div. & Sep., secs. 370 et seq. See also Starr v. Peck, 1 Hill
(N. Y.), 270, doubtless overruled in Cheney v. Arnold, supra,

5 See ante, secs. 83, 87.
MARRIAGE-—CONSENT AND SOLMMNIZATION 81

other penalties they denounce against the parties marry-
ing or those officiating at the ceremony.

92. Steps Precedent to Ceremony—License—Con-
sent of Parents, etc.

Thus a statute requiring the issuance of a license is
construed as directory merely, and a marriage entered
into without one is perfectly valid unless the statute
itself contains words of nullity.!

The common requirement of statute that the consent
of parents or guardians shall be had before a marriage
license is issued or the ceremony is performed, where
either party is under a specified age, are the same in general
effect as those requiring a license; and while they impose
penalties upon those issuing licenses or performing cere-
monies without requisite consent, marriages entered into
without it are entirely valid in the absence of statutory
words of nullity.” .

93. The Celebrant.

So, a statute that declares that none but ministers
or magistrates shall be competent to perform the mar-
riage ceremony does not render a marriage void for non-
compliance if it is otherwise validly entered into in ac-
cordance with the common law.’ But if the statute is

1 Askew v. Dupree, 30 Ga. 173; Gardener ». Manchester, 88 Me. 249;
- Overseers of the Poor v. Overseers, 2 Vt. 151, 19 Am. Dec. 703; Cart-
right v. McGown, 121 Ill. 388, 2 Am. St. R. 105; In re Hollopeter, 52
Wash. 41, 132 Am. St. R. 952; State v. Bittick, 103 Mo. 183, 11 L. R.
A. 587; Franklin ». Lee, 30 Ind. App. 31. See Ashley v. State, 109
Ala. 48; Offield v. Davis, 100 Va. 250; In re McLaughlin, 4 Wash.
570, 16 L. R. A. 699.

2 Parton v. Hervey, 1 Gray (Mass.), 119; Milford v. Worcester, 7
Mass. 48; Hiram ». Pierce, 45 Me. 367, 71 Am. D. 555; Holtz v. Dick,
42 Ohio St. 23, 51 Am. R. 791. See the note to State v. Lowell, 79
Am. St. R. 375.

3 Meister v. Moore, 96 U. S. 76; Carmichael v. State, 12 Ohio St.
553; Town of Londonderry v. Chester, 2 N. H. 268, 9 Am. D. 61;
Campbell’s Admr. v. Gulatt, 43 Ala. 57; Pearson ». Howey, 6 Halst.
(N. J.) 12, 18; Simon »v. State, 31 Tex. Cr. App. 186, 37 Am. St. R. 802;

6
82 MARRIAGE—CONSENT AND SOLEMNIZATION

mandatory in that respect, the absence of an officiating
clergyman or magistrate renders the marriage void in the
absence of a provision declaring it valid where ‘either
party believed in good faith that the celebrant was duly
authorized,” and one party or both believed him to be so.!

94. Other Formalities—Curative Acts.

Statutes providing for the presence of witnesses, a
prescribed ceremonial, or other formalities than those
above mentioned, are interpreted upon the same prin-
ciples as those already discussed.

Though legislatures seldom or never attempt to pass
laws imposing marriage upon parties neither of whom
intended it, they frequently declare valid, marriages pre-
viously entered into without requisite capacity or pre-
scribed formalities, or before unauthorized persons. With-
out discussing the constitutional objections that might
be urged against this form of legislation, it must be enough
to say that it is usually held valid.?

Dyer v. Brannock, 66 Mo. 391, 27 Am. R. 350; Reaves v. Reaves, 15
Okla. 240, 2 L. R. A. (N. 8.) 353. :

' Robinson v. Redd, 19 Ky. Law, 1422; State v. Wilson, 121 N. Car.
650.

21 Bish. Mar. Div. & Sep., secs. 816 et seq. See also Bowers v.
Bowers, 1 Abb. App. Dec. (N. Y.) 214; White ». White, 115 Mass.
325, 7 Am. R. 526; Harrison ». State, 22 Md. 468, 85 Am. D. 658.
As to legitimation of bastards by legislative act, see post, sec. 456.
CHAPTER VIII

FOREIGN MARRIAGES—CONFLICT OF LAWS

95. In General.

Generally speaking, every state or country has a right
to fix the status of its own citizens, a principle strikingly
exemplified in the law of divorce.1_ Unlike divorce, how-
ever, Marriage is an international institution everywhere
recognized and favored, if not encouraged, as the basis
of civil society and the chief conservator of public morals.
Whatever, therefore, may be the theory as to the ubiq-
uity of personal laws in other respects, it is generally well
settled in this country at least, that a marriage valid where
entered into will be deemed valid everywhere, regardless
of the law of the domiciles of the parties or either of them.
The correlative of this is also generally true, and a . marriage
void where it is celebrated is void in every other place,
regardless of the law in force where its validity is ques-
tioned.? That there are more or less generally recognized
exceptions to both these rules will shortly appear.

96. As to Formalities Preceding and Accompanying
Celebration.

That a marriage valid where entered into is valid
everywhere seems to be generally conceded both in Eng-
land and in the United States, so far as concerns such
formal prerequisites or accompaniments as license, the
publication of banns,? the consent of parents or guard-

1See post, secs. 331, 333 et seq.

2Com. v. Lane, 113 Mass. 458, 18 Am. R. 509, and cases throughout
this chapter; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. R. 164; Hard-
ing v..Allen, 9 Me. 140, 23 Am. D. 549; Hills v. State, 61 Neb. 589, 57
L. R. A. 155, and note; post, sec. 101.

3 Sottomayer v. De Barros, 3 P. D. 15; Compton ». Bearcroft, Bull.
84 FOREIGN MARRIAGE

ians,! and the formalities of celebration, including the
officiating presence of a clergyman or magistrate.? And
though the parties leave the place of their domicile and
marry elsewhere in intentional evasion of their home law,
the marriage is valid even at home if valid where con-
tracted,’ unless the law of their domicile expressly de-
clares such evasive marriage void.

97. As to Capacity to Marry.

In this country generally the rules above stated apply
even where the parties marrying abroad were one or both
of them without capacity to contract marriage by the
law of their domicile, and their marriage, if valid where
entered into, will be valid at home, unless bigamous or
incestuous by the law of nature.’ But in England the

N. P. 114; Loring v. Thorndyke, 5 Allen (Mass.), 257; Askew v. Du-
pree, 30 Ala, 173.

1 Compton ». Bearcroft, supra; Simonin v. Mallac, 2 Sw. & Tr. 67
29 L. J. Prob. 97; Com. v. Graham, 157 Mass. 73, 34 Am. St. R. 255,
16 L. R. A. 578; Sturgis v. Sturgis, 51 Oreg. 10, 15 L. R. A. (N. 8.)
1034.

2 Dalrymple v. Dalrymple, 2 Hagg. Con. 254, 4 Eng. Ecc. 485;
Jackson v. Jackson, 80 Md. 176, 191.

3 Compton v. Bearcroft, supra; Pennegar v. State, 87 Tenn. 244,
21. R. A. 703, 10 Am. St. R. 648; Sturgis v. Sturgis, 51 Oreg. 10,
131 Am. St. R. 724,15 L. R. A. (N. 8.) 1034; Harding ». Alden, 9
Greenl. (Me.) 140, 23 Am. D. 549; Com. ». Graham, 157 Mass. 73,
34 Am. St. R. 255, 16 L. R. A. 578; Com. v. Lane, 113 Mass. 458, 18
Am. R. 509; Hills v. Hills, 61 Neb. 589, 57 L. R. A. 155, and note.
But see Norman v. Norman, 121 Cal. 620, 66 Am. St. R. 74, 42 L. R.
A. 348, where the parties went onto the high seas to evade the domi-
ciliary law and their marriage was held void at home. Compare 1
Bish. Mar. Div. & Sep., sec. 894.

‘See Whippen v. Whippen, 171 Mass. 560; Com. v. Graham, supra.
This is the effect of statutes 19 and 20 Vict., Chap. 96, sec. 1, as to so-
called Gretna Green marriages. Lawford v. Davies, 4 P. D. 61. See
also post, sec. 100. Even where an evasive marriage is declared void
by the domiciliary law, it would probably be good in the state of cele-
bration and possibly elsewhere save at home. See Simonin v. Mallac,
2 Sw. & Tr. 67, 29 L. J. Prob. 97.

’ Stevenson ». Gray, 17 B. Monr. (Ky.) 193; Medway ». Needham,
FOREIGN MARRIAGE 85

rule appears to be that so far as legal capacity is concerned,
the validity of marriage is to be tested by the law of the
domicile of the parties,! and something of the same doc-
trine appears to obtain in some of our states, at least as to
marriages between whites and blacks.?

98. Marriages Odious to Good Morals or Public
Policy.

To the general rule that a marriage valid by the lex
loci contractus is valid everywhere, there is at least one
exception, and no court will hold a marriage good if it is
odious to good morals and public policy as established by
the common consent of civilization. Thus, if a marriage
is bigamous or polygamous or incestuous according to the
law of nature; * or if it be between parties one of whom was
so insane or imbecile at the time of the marriage as to have
been incapable of matrimonial consent in any proper
sense, it would be held void, however valid it may have
been where celebrated.‘

99. Same—Miscegenatous Marriages.
Marriage between persons of different races is for-

16 Mass. 157, 8 Am. D. 131; Sturgis ». Sturgis, 51 Oreg. 10, 131 Am.
St. R. 724, 15 L. R. A. (N.S.) 1034.

1 Brook »v. Brook, 9 H. L. Cas. 193; Sottomayer ». De Barros, 5
P. D. 1; De Wilton v. Montifiore (1900), 2 Ch. 481.

2 Post, sec. 99. See State v. Kennedy, 76 N. Car. 251, 22 Am. R.
683.

3Com. v. Lane, 113 Mass. 458; Sutton ». Warren, 10 Met. (Mass.)
451; Stevenson v. Gray, 17 B. Monr. (Ky.) 193; Hills v. State, 61 Neb.
589, and note thereto in 57 L. R. A. 155; Re Chace, 26 R. I. 351, 69
L. R. A. 493; U. S. ». Rodgers, 109 Fed. Rep. 886. Whether a mar-
riage between uncle and niece or nephew and aunt would be deemed
incestuous here according to the law of nature, and hence void though
valid where contracted, seems uncertain. That it would not, see Sut-
ton v. Warren, and Stevenson v. Gray, supra. Contra, where sexual
relations between such parties would amount to incest under the crim-
inal law. U. 8S. ». Rodgers, supra. See also Johnson v. Johnson
(Wash.), 106 Pac. 500, 26 L. R. A. (N. 8.) 179,

4True v. Ranney, 21 N. H. 52, 53 Am. D. 164.
86 FOREIGN MARRIAGE

bidden in many of our states, as is elsewhere stated.1
If they leave the place of their domicile, however, and
marry elsewhere, there is some conflict in the state courts
as to their status at home. By the rules previously stated
as prevailing in this country, their marriage should be
valid even in their home state,’ and it has been so held,
even though the home statute had nullifying words.*
But in most states where such prohibitions exist such
marriages have been held void, at least in the courts of
the state whose law was evaded. Some of these decisions
appear to rest upon the English doctrine that the lex
domicilii determines capacity to marry,‘ while others lay
stress on arguments of public policy and political ex-
pediency in view of local sentiment and social conditions.°
But if a white person and a negro are once validly married
by the law of their domicile, and the place of celebration,
whether the marriage was entered into at their domicile
or elsewhere, the marriage is valid even in states where
marriages between the races are forbidden, or such mar-
riages by domiciled citizens are declared void though
contracted abroad.®

100. Marriage in Face of Prohibitions Following Di-
vorce.
If nothing more than a divorce a mensa et thoro or from

1 See ante, sec. 57.

2 See ante, sec. 97.

’ Medway v. Needham, 16 Mass. 157, 8 Am. D. 131. See also State
». Hand, 126 N. W. 1002 (Neb., 1910).

4See ante, sec. 97; Dupree v. Boulard, 10 La. 411, with which com-
pare Succession of Caballero, 24 La. Ann. 573; Blasini v. Blasini, 30
La. Ann. 1388; State v. Tutty, 41 Fed. Rep. 753, 7 L. R. A. 50, and
cases cited.

* State v. Kennedy, 76 N. Car. 251, 22 Am. R. 683; Kinney ». Com.,
30 Gratt. (Va.) 858; State ». Tutty, supra; Pennegar ». State, 87 Tenn.
244, 2 L. R. A. 703, 10 Am. St. R. 648; In re Chace, 26 R. I. 351, 69
L. RB. A. 493.

® Succession of Caballero, 24 La. Ann. 573: State ». Ross, 76 N. C.
242, 22 Am. R. 678. Compare State ». Bell, 7 Baxt. (Tenn.) 9.
FOREIGN MARRIAGE 87

bed and board is granted, neither party may marry again
anywhere, for this leaves the marriage tie intact, and a
second marriage would be bigamous; ! and the same would
be true of a marriage after a decree nisi but before it is
made absolute.* Even where the divorce is absolute, stat-
utes sometimes provide that the guilty party shall not
marry again or within a specified time, or authorize the
court to embody such a prohibition in the decree, or forbid
marriage with the paramour in adultery, at least during
the life of the injured party.* Such prohibitions are gen-
erally regarded as penal, and hence without extraterrito-
rial effect. It follows, therefore, that a party forbidden
to marry has only to go outside the state and marry again
and his marriage will be valid there. Indeed such mar-
riage, both upon principle and by the weight of authority,
is valid even at home, unless the home law expressly
declares void a subsequent marriage in another juris-
diction.» But under the Wisconsin statute (Laws of 1905),
which prohibits both parties to the divorce action from
remarrying within a year and declares such second mar-
riage null and void, it has recently been held that a second
marriage contracted in Michigan within a year, both par-
ties thereto being domiciled in Wisconsin, is null and void
in the latter state, upon the ground that the Wisconsin
statute is not penal merely, but being applicable to the
innocent and guilty party alike, establishes a rule of

1See post, sec. 327.

2 See ante, sec. 65; post, sec. 340; Warter ». Warter, 15 P. D. 152.

3 See Cropsey v. Ogden, 11 N. Y. 228; Googins v. Googins, 152 Mass.
533; ante, sec. 66.

4See Scott ». Atty. Gen., 11 P. D. 128.

5 Putnam v. Putnam, 8 Pick. (Mass.) 433; West Cambridge v. Lex-
ington, 1 Pick. (Mass.) 506, 11 Am. D. 231; Van Voorhis v. Brintnall,
86 N. Y. 18, 40 Am. R. 505; Thorp ». Thorp, 90 N. Y. 602, 43 Am. R.
189; Moore v. Hageman, 92 N. Y. 521, 44 Am. R. 408; Com. v. Lane,
113 Mass. 458; Whippen v. Whippen, 171 Mass. 560, and cases cited.
Frame v. Thormann, 102 Wis. 653, 673, and cases cited. Compare
Elliott ». Elliott, 38 Md. 358; Calloway v. Bryan, 6 Jones’s L. (N. Car.)
570.
88 FOREIGN MARRIAGE

public policy for the prevention of marital disagreements,
infidelity and collusive divorce, and the evils of what the
court aptly terms “progressive polygamy.”: The effect
of marriage pending appeal from a decree of divorce de-
pends upon whether, by the law of the forum, the prior
marriage is regarded as dissolved by the judgment of the
court below. If it is not, the second marriage, whether
celebrated at home or abroad, is void,? and the same re-
sult would doubtless follow, though the decree appealed
from was deemed to dissolve the marriage, if it was after-
ward reversed.

101. Marriage Void Where Celebrated.

Usually a marriage void or voidable where celebrated
is void or voidable everywhere.‘ If there are any excep-
tions to this rule they are probably more apparent than
real. The questions under this head have been raised
chiefly by text-writers, and would require too much space
for discussion here.’ It seems, however, that if parties
who attempted in good faith to marry elsewhere, but
failed to do so, come into a jurisdiction where marriage by
mere consent is permitted and cohabit there as husband
and wife, they will be deemed married in the absence of

‘Lanham »v. Lanham, 136 Wis. 360, per Winslow, C. J. See also
McLennan ». McLennan, 31 Oreg. 480, 38 L. R. A. 863, 65 Am. St.
R. 835; Estate of Stull, 183 Pa. 625, 39 L. R. A. 452, 63 Am. St. R. 77;
Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 703, 10 Am. St. R. 648,
where the same result was reached under statute prohibiting remar-
riage of a divorcee for adultery with his or her paramour.

2 See ante, sec. 67.

> Statutes in a few states affect this question.

‘ Middleton ». Janverin, 2 Hagg. Con. 437, 4 Eng. Ecc. 582; Scrim-
shire ». Scrimshire, 2 Hagg. Con. 395, 4 Eng. Ecc. 563; Roche ».
Washington, 19 Ind. 53, 81 Am. D. 376; Stevenson v. Gray, 17 B.
Monr. (Ky.) 193; Leonard ». Braswell, 99 Ky. 528, 535, 36 L. R. A. 707;
Sulton v. Warren, 10 Met. (Mass.) 451.. Compare Simonin v. Mallac,
2 Sw. & Tr. 67, 29 L. J. Prob. 97.

51 Bish. Mar. Div. & Sep., secs. 886 et seq.; Runding ». Smith, 2
Hagg. Con. 390. See also Norman v. Norman, 121 Cal. 620, 66 Am.
St. R. 74, 42 L. R. A. 348.
FORBIGN MARRIAGE 89

evidence that they knew their relation was originally
meretricious and intended it to continue so.!

102. Rights Collateral to Marriage.

The conflict of law as to the rights collateral or incident
to marriage often involves different rules from those that
determine the validity of marriage itself. Thus, rights of
dower and curtesy are dependent upon the law of the
place where the lands of the spouses are situated, and much
more in this connection is shown under various heads.’

1 Traverse v. Reinhardt, 205 U. S. 423; post, sec. 107.
2 See post, sec. 301.
CHAPTER IX
EVIDENCE AND PRESUMPTIONS OF MARRIAGE

103. In General.

Marriage, like any other fact, must be proved if con-
troverted, and the evidence, as in other issues may, as a
general rule, be either direct or circumstantial.1_ Further-
more, the proof of marriage is particularly liable to be
aided or defeated by presumptions more or less strong,
depending upon the nature of the issue and the character
of the facts in evidence.

104. Direct Evidence—Proof by Record—Witnesses,
etc.

A common method of proving marriage is by the record
or a properly certified copy thereof, under statutes pro-
viding that it shall be competent evidence of the marriage.
Even without direct statutory aid, marriage records or
proved copies thereof are admissible when they have been
officially kept in the discharge of a duty imposed by law,
on the ground that it will be presumed that official duties
have been properly performed, and hence that such rec-
ords were properly kept.? But such records are evidence
only so far as they go, and the identity of the parties
named therein must in some way be shown.’ Marriage
certificates have been held competent and admissible
even in the absence of statutes making them so, when

1 Clayton v. Wardell, 4 N. Y. 230; Minnesota v. Worthingham, 23
Minn. 528. See post, sec. 108.

22 Greenl. on Ev., sec. 461; Casely 2. Mitchell, 121 Ia. 96. As to
unofficial records or memoranda, see 1 Bish. Mar. Div. & Sep., secs. 989
et seq.; Blackburn ». Crawfords, 3 Wall. (U. 8.) 175; Kennedy ».
Doyle, 10 Allen (Mass.), 161.

? Reg. v7. Hawes, 1 Den. C. C. 270; Wedgewood’s Case, 8 Greenl.
(Me.) 75, and cases cited.

90
PROOF OF MARRIAGE 91

coming from proper custody, upon the ground, usually,
that the giving of them is part of the res geste. Still
the law on this subject seems not reducible to any uni-
form rule, and in some states such certificates are rejected.!
In any case, the record or certificate of a marriage is
prima facie evidence only, and is subject to be rebutted
by any competent proof that it is false or forged, and does
not conform to the fact. Neither is the record or certifi-
cate the best evidence in the sense that it will exclude
other available proof unless its absence is accounted for.’
A marriage may therefore be proved by the person who
celebrated it, who may testify both to its celebration
and his authority to celebrate it even where statutes
make the record or certificate of marriage admissible
and declare it prima facie proof.* So it may be proved
by the testimony of witnesses who were present at the
ceremony ‘ or who were present at the marriage supper.®
The testimony of the spouses themselves to the fact of
marriage was generally excluded at common law in all
cases where either was a party in interest. But this rule
has been changed, at least in civil cases in most jurisdic-
tions, as will later appear. A written contract of mar-
riage signed by both parties is admissible, and, if genuine,
may be conclusive where a common-law marriage is good.’

105. Indirect Evidence of Marriage—Presumptions.
Generally, and wherever there is a rational basis for

1See 1 Bish. Mar. Div. & Sep., secs. 1003 et seq.; State v. Behrman,
119 N. Car. 797, 25 L. R. A. 449; People v. Lambert, 5 Mich. 349,
364, 72 Am. D. 49.

2 Woods v. Woods, 2 Curt. Ecc. 516, 7 Eng. Ece. 181, 184; Com. 2.
Dill, 156 Mass. 226; Com. v. Norcross, 9 Mass. 492; Smith v. Fuller,
138 Iowa, 91, 16 L. R. A. (N. 8.) 98, and cases cited.

3 Com. ». Hayden, 163 Mass. 453, 47 Am. St. R. 468; State ». Marvin,
35 N. H. 23.

‘Wolverton »v. State, 16 Ohio, 173, 47 Am. D. 373; State ». Marvin,
supra.

5 Mills ». United States, 1 Pin. (Wis.) 73.

6 See post, secs. 158 et seq.

7 Hulett v. Carey, 66 Minn. 327, 61 Am. St. R. 419.
Q2 PROOF OF MARRIAGSS

them, all the presumptions are in favor of marriage, for
this rule best accords with innocence and legitimacy and
makes for decency and public order and the preservation
of private rights.1_ But in certain cases, particularly of
a criminal nature, the presumption of marriage is either
strengthened or entirely neutralized by the presumption
of innocence, as is later explained.’

106. Same—Cohabitation, Acknowledgment and Re-
pute. ,

When it appears that parties have cohabited together
and acknowledged one another as husband and wife
and are generally reputed in the community to be such,
there is a strong presumption that they are married in
fact until the contrary is made to appear.* And this
presumption will prevail until rebutted, even where the
law requires a ceremonial marriage, or such prerequisites
as license or publication of banns, and the like, as well as
where a common-law marriage is valid. Even less than
cohabitation, acknowledgment and repute are sufficient to
raise a presumption of marriage. Thus, cohabitation and
repute are sufficient to raise it,’ and so of cohabitation
and acknowledgment; * and acknowledgment or confes-
sions alone have been held sufficient if apparently seri-

1 Hynes v. McDermott, 91 N. Y. 451, 43 Am. R. 677; Teter v. Teter,
101 Ind. 129, 51 Am. R. 742; State » Worthingham, 23 Minn. 528;
Smith v. Fuller, 138 Ia. 91, and note thereto in 16 L. R. A. (N. 8.) 98.

2 See post, sec. 108.

* De Thoren v. Atty. General, L. R. 1 App. Cas. 686; Renfrow ».
Renfrow, 60 Kan. 277, 72 Am. St. R. 350; Peet v. Peet, 52 Mich. 464;
Moore v. Heineke, 119 Ala. 627; Proctor v. Bigelow, 38 Mich. 282;
Traverse v. Reinhardt, 205 U. 8. 423.

4 Richardson ». Smith, 80 Md. 89; Boone v. Purnell, 28 Md. 607,
92 Am. D. 713; Fornshill ». Murray, 1 Bland (Md.), 479, 18 Am. D.
344; Summerville ». Summerville, 31 Wash. 411.

5 Breadalbane’s Case (Campbell ». Campbell), L. R. 1 Sc. App. 182;
Proctor v. Bigelow, 38 Mich. 282; Hynes ». McDermott, supra; Young
v. Foster, 14 N. H. 114.

® See Gall v. Gall, 114 N. Y. 109.
PROOF OF MARRIAGE 93

ous or against interest,’ and not made for the purpose of
concealing an illicit relation. But proof of cohabitation
alone will not raise a presumption of marriage, unless it
is of such character as to lead to the belief in the com-
munity that the parties were husband and wife,’ and
mere reputation without proof of cohabitation or ac-
knowledgment seems not sufficient. Proof that the
parties sustain a divided reputation is clearly insufficient
to raise a presumption of marriage in the absence of
other evidence from which a marriage can be inferred.®

107. Same—Cohabitation Illicit at Beginning.

It is generally said that a cohabitation shown to have
been illicit at its beginning will be presumed to continue
so, unless there is proof of a subsequent change in the rela-
tions of the parties.’ If it is shown, however, that at the
beginning of their cohabitation the parties desired and
intended marriage, and would have been lawfully married
but for some impediment then existing, if they continue
to cohabit as husband and wife with knowledge that the
impediment is removed they will be deemed prima facie
to be married, at least in states where informal marriages
are permitted,’ though other evidence of their intention

1 Greenwalt v. McEnelly, 85 Pa. 352; State v. Libbey, 44 Me. 469,
69 Am. D. 115; Pickett v. Muck, 74 Wis. 199; post, sec. 108.

2 See McKenna ». McKenna, 180 Ill. 577.

3 See McKenna ». McKenna, supra; Johnson v. Johnson, 30 Mo. 73,
77 Am. D. 598; Grimm’s Est., 131 Pa. 199, 17 Am. St. R. 796; 3 Wig-
more on Ev., sec. 2083.

4Greenwalt ». McEnelly, 85 Pa. 352; Blair v. Howell, 68 Ia. 619.
But see Badger v. Badger, 88 N. Y. 546, 42 Am. R. 263; Doe v. Flem-
ing, 4 Bing. 266.

5 See Badger v. Badger, supra.

° Lapsley v. Grierson, 1 H. L. Cas. 498; Cunningham ». Cunning-
ham, 2 Dow. 482, 502; Minnesota v. Worthington, 23 Minn. 528, 536;
Cartright 1. McGown, 121 Ill. 388, 2 Am. St. R. 105; Reading Fire Ins.
Co.’s App., 113 Pa. 204, 57 Am. R. 448; Barnum »v. Barnum, 42 Md.
251, 297; Spencer v. Pollock, 83 Wis. 215, 17 L. R. A. 848. See also
Caujolle v. Ferris, 23 N. Y. 90.

7 Breadalbane’s Case, L. R. 1 Sc. App. 182, 206, 212; Minnesota »,
94 PROOF OF MARRIAGE

to change from an unlawful to a lawful relation may be
sufficient. Even if the parties so circumstanced are where
a formal celebration is necessary, slight evidence of a
new celebration with continued cohabitation will raise
a presumption of lawful marriage.

If the relation was known and meant to be illicit at
the outset, and there was then no impediment to marriage,
stronger evidence will naturally be required of a mutual
change of intention or a new celebration. And other
circumstances may operate to strengthen the presumption
that no marriage was ever intended, as where the woman
was of general loose character,? or the man was white
and the woman black.* But though it appears that par-
ties began to live together as man and mistress, their
subsequent acts and declarations, their reputation as
married people and the circumstances surrounding them
in their daily lives, may be sufficient to warrant the con-

Worthington, 23 Minn. 528; Chamberlain 7 Chamberlain, 68 N. J.
Eq. 736, 111 Am. St. R. 658, 3 L. R. A. (N. S.) 244; Land v. Land, 206
Ill. 288, 99 Am. St. R. 171; Barker v. Valentine, 125 Mich. 336, 84
Am. St. R. 578, 51 L. R. A. 787; Schuschart v. Schuschart, 61 Kan.
597, 78 Am. St. R. 342, 50 L. R. A. 180; Adger ». Ackerman, 115 Fed.
124, 130, and authorities cited. In Collins ». Voorhees, 47 N. J. Eq.
315, 24 Am. St. R. 412, 14 L. R. A. 366, the woman married a man
without knowledge ‘of his subsisting prior marriage, and continued to
live with him as his wife without knowledge that the impediment had
been removed. Held that the second marriage was void and that no
presumption of a common-law marriage could be drawn from the
subsequent cohabitation of the parties. To the same effect, see Hunt’s
Appeal, 86 Pa. 294, and perhaps Cartright ». McGown, 121 III. 389,
2 Am. St. R. 105. But see Travers ». Reinhardt, 205 U.S. 423; Eaton
v. Eaton, 66 Neb. 676, 60 L. R. A. 605; De Thoren ». Atty. General,
L. R. 1 App. Cas. 686; Barker v. Valentine, supra; In re Wells, 108
N. Y. Supp. 164, 123 App. Div. 79. See Mass. Rev. Laws, Chap. 151,
sec. 6, construed in Turner ». Turner, 189 Mass. 373, 109 Am. St. R.
643.

1Wilhams v. Williams, 46 Wis. 464, 32 Am. R. 722; Rose ». Rose,
67 Mich. 619; Klipfel v. Klipfel, 41 Col. 40, 124 Am. St. R. 96; Barnum
v. Barnum, 42 Md. 251, 297.

2 Conran 1. Lowe, 1 Lee Eee. 630.

’ Armstrong v. Hodges, 2 B. Monr. (Ky.) 69,
PROOF OF MARRIAGE 95

clusion that they subsequently assumed the relation of
husband and wife.!

108. Further of the Presumptions of Marriage—Con-
flicting Presumptions—Criminal Cases—Criminal Con-
versation.

The presumption of marriage arising from certain facts
may be aided by other presumptions arising from certain
other facts or the nature of the issue, or it may be nullified
or even overborne by some counter presumption similarly
arising.

In criminal prosecutions where the existence of a given
marriage is an essential element of guilt, as in bigamy,
adultery and incest, the presumption of innocence weakens
or neutralizes the presumption in favor of marriage aris-
ing from cohabitation and repute, and the courts require
stricter proof of marriage than in ordinary civil cases,
where the issue is of legitimacy, dower and the like. In-
deed it is often stated that in criminal cases where mar-
riage is an element of guilt, as well as in civil actions for
criminal conversation, as will shortly appear, there must
be proof of marriage in fact, or that marriage cannot be
proved by acknowledgment, cohabitation and repute.’
This has often been taken to mean that there must be
direct, as distinguished from circumstantial, evidence of
the marriage, i. e., proof by eyewitnesses, or by the reg-
ister or other lawful record, and the testimony of wit-
nesses showing the identity of the parties.* But this is
not the prevailing rule, and in many courts circumstan-

1 Gall v. Gall, 114 N. Y. 109, 118, and cases cited.

2See Morris v. Miller, 4 Burr. 2557, 1 W. BI. 632; Birt v. Barlow, 1
Doug. 171, 174, where the rule appears to have been first announced;
West v. State, 1 Wis. 211, where the above and other English and
American authorities are discussed; State v. Schweitzer, 57 Conn. 532,
6 L. R. A. 125; and see the note to State ». Hodgkins, 36 Am. D. 747.

State v. Winkley, 14 N. H. 430, 494; People ». Humphrey, 7 Johns.
(N. Y.) 314; Com. ». Littlejohn, 15 Mass. 163; State v. Roswell, 6

Conn. 446.
96 PROOF OF MARRIAGE

tial evidence is admissible and if clear and pointed may
be sufficient to prove the marriage, particularly if direct
evidence is not obtainable. And while in most states, in
the absence of statute, evidence of cohabitation and
repute unaided by admissions, confessions or declarations
of the defendant, or other additional evidence of the fact
of marriage, will be insufficient to prove it,! cohabitation
and repute, supplemented by confessions or admissions
of marriages, if apparently serious or against interest,
have been held sufficient even in criminal cases. Even
such confessions or admissions alone have been held
sufficient when made under such circumstances of deliber-
ation and understanding as to convince the jury that
there was a marriage in fact. Even where marriage is
sought to be proved by eyewitnesses to the ceremony,
their testimony has been held insufficient in criminal cases
without further proof of the official or clerical character
and authority of the celebrant. But this rule can hardly
be deemed correct on principle, at least where a common-
law marriage would have been valid, and there is au-
thority for the rule that where it is shown that the cere-
mony was performed by one apparently authorized and
in accordance with the customary local forms, this makes

1 Miner v. People, 58 Ill. 59; State v. Rood, 12 Vt. 396; State 2.
Hansborough, 181 Mo. 348. Compare Com. ». Jackson, 11 Bush
(Ky.), 679, 21 Am. R. 225; Wood ». State, 62 Ga. 406; Com. v. Holt,
121 Mass. 61. See note to State v. Hodgkins, 36 Am. D. 742; 3 Wigm.
Ev. 2084 et seq.

2 Green v. State, 59 Ala. 68,70; Warner’s Case, 2 Va. Cas. 95; State
»v. Britton, 4 McCord’s L. (8. Car.) 256; State v. Hilton, 3 Rich. L.
(S. Car.): 484, 45 Am. D. 783; State v. Jenkins, 131 Mo. 535; State v.
Schweitzer, 57 Conn. 532; West v. State, 1 Wis. 211; People ». Lambert,
5 Mich. 366, 72 Am. D. 49.

33 Greenl. on Hv., sec. 204; Miles v. U. S., 103 U. 8. 304, 311, and
cases cited; Com. v. Jackson, supra; Forney v. Hallacher, 8 S. & R. (Pa.)
159; Com. ». Murtagh, 1 Ashm. (Pa.) 272, 274; Wolverton ». State, 16
Ohio, 178, 47 Am. D. 378; McSein ». State, 120 Ga. 175; Arnold ». State,
53 Ga. 574; State v. Hodgkins, 19 Me. 155, 36 Am. D. 742. See also
West v. State, supra.

4See State v. Hodgkins, supra.
PROOF OF MARRIAGE 97

& prima facie case in the absence of countervailing testi-
mony.!

In actions for damages for criminal conversation with
the alleged wife of the plaintiff, as his relations with her
are presumed innocent, so are the defendant’s, and this
last presumption weakens or overcomes the presumption
of the plaintiff’s marriage, so that practically the same
proof of marriage in fact is generally required as in crim-
inal cases.”

109. Same—Presumption of Death or Divorce.

Every intendment of law favors matrimony. It pre-
sumes morality, not immorality; marriage, not concubi-
nage; legitimacy, not bastardy.’ It is the general rule,
therefore, that when parties are shown to have entered
into what appears to be a valid marriage, the presump-
tion of its validity will not be overborne by proof that
either of them had contracted a prior marriage, but the
presumption arises, varying in strength with the circum-
stances of the case, that such prior marriage was dissolved
by death or divorce before the second one was contracted.*
In prosecutions for bigamy, however, where the first mar-
riage is proved as well as the continuance in life of the
first wife at the time of the second marriage, if the de-

: Rex v. Frampton, 10 East, 282; Warner’s Case, 2 Va. Cas. 95, 104;
Lord v. State, 17 Neb. 526; Fleming v. People, 27 N. Y. 329; State ».
Brecht, 41 Minn. 50; Pettyjohn v. Pettyjohn, 1 Houst. (Del.) 332.

2 Morris v. Miller, 4 Burr. 2557, reported as Morres v. Miller, 1 W.

_ BL. 632; Catherwood v. Caslon, 13 M. & W. 261; Birt »v. Barlow, 1

Doug. 171; Kibby v. Rucker, 1 A. K. Marsh. (Ky.) 392; Hutchins ».
Kimmel, 31 Mich. 126, 18 Am. R. 164; Young v. Foster, 14 N, H. 114;
Keppler ». Elser, 23 Ill. App. 648; Meyers v. Pope, 110 Mass. 314.

3 See ante, sec. 105; Teter v. Teter, 101 Ind. 129, 51 Am. R. 742.

* Ala., ete., Ry. Co. v. Beardsley, 79 Miss. 417, 89 Am. St. R. 660.
For discussion of this rule and its limitations, see Pettinger ». Pet-
tinger, 38 Colo. 308, and the elaborate note thereto in 89 Am. St. R.
193 et seq.; State ». Plym, 43 Minn. 385; Smith ». Fuller, 138 Ia. 91,
16 L. R. A. 98, and note; In re Phene’s Trusts, L. R. 5 Ch. App. 139,
151.

e
98 PROOF OF MARRIAGE

fendant relies upon divorce from the first wife as a de-
fense, he must prove it, for he of all others is usually in the
best position to know the fact and where proof thereof
can be obtained.!

110. Proof of Foreign Marriage.

A marriage entered into outside the state or country
where its existence is called in question may be proved,
prima facie, in all ordinary issues, like a domestic one, by
cohabitation and repute.” If this prima facie case is to be
rebutted, proof of the foreign law under which the mar-
riage took place and non-compliance therewith would
seem necessary.? On the other hand, if the alleged mar-
riage is a necessary ingredient in a prosecution for crime
or in an action of criminal conversation, cohabitation
and repute would not be enough, though confessions
would usually be adequate if seriously made.‘ In the
absence of such confessions, however, other proof of a
marriage in fact must be made, and if it appears that
formalities were requisite by the foreign law, the jury
must be satisfied that they were complied with.2 And
though the evidence of compliancé may be to some extent
circumstantial, the proof is not to be helped out by mere
presumption of the proper performance of official or legal
duty, for opposed to it is the presumption of innocence.®
The proof, both of the facts constituting compliance
with the foreign law and of that law itself, involves prin-
ciples and reasoning requiring much time to explain, so

1 Fletcher v. State, 169 Ind. 77, 124 Am. St. R. 219, and authorities:
cited in the opinion and in note to Pettinger ». Pettinger, supra, in
89 Am. St. R. 200.

2 See ante, sec. 106.

* Laurence v. Laurence, 164 Ill. 367; Lanctot v. State, 98 Wis. 136,
67 Am. St. R. 800, and cases cited.

‘See ante, sec. 108; Cahagan ». People, 1 Pr. Cr. Cas. 378. Com-
pare People v. Lambert, 5 Mich. 349, 72 Am, D. 49,

5 Weinberg ». State, 25 Wis. 370.

* Weinberg v. State, supra.

wie
PROOF OF MARRIAGE 99

that reference should be had to the larger works on mar-
riage and on criminal law and evidence.'

It will be sufficient for most cases to observe that even
in criminal prosecutions, proofs of a marriage ceremony
abroad before a priest, minister or magistrate, at least if
followed by cohabitation, raises the presumption that it
was in accordance with the foreign law, and casts the
burden of showing the contrary upon the person alleging
its invalidity.”

1See 1 Bish. Mar. Div. & Sep., Chap. XXXV; Whart. Confl. L.
(8d Ed.), sees. 760, 775.

2 Megginson v. Megginson, 21 Oreg. 387, 14 L. R. A. 540, and note;
Lanctot v. State, 98 Wis. 136, 67 Am. St. R. 800; Com. ». Kenney, 120

Mass. 387. And so in an action of criminal conversation. Hutchins
vo. Kimmell, 31 Mich. 126, 18 Am. R. 164.
CHAPTER X

HUSBAND AND WIFE—PERSONAL RIGHTS AND DUTIES OF
THE SPOUSES

111. In General.

It is the purpose of the present chapter to discuss the
purely personal rights and duties attaching to or growing
out of the marriage relation, leaving for separate con-
sideration, so far as possible, its influence upon the prop-
erty rights and civil capacity of the parties. It may be
stated at the outset, that while the rules of equity and
modern statutes have practically revolutionized and
largely superseded the matrimonial property scheme of
the common law, leaving only isolated fragments of it
still in force, the personal rights and duties of husbands
and wives are still governed in the main by the rules and
principles of the common law, softened and modified
here and there to fairly meet the requirements of a more
enlightened age.

It should be noted, however, that the right of the hus-
band to exercise authority over the wife, and in fact the
personal duties and relations of the spouses generally, are
governed by the law of the place where they reside for
the time being, and not by that of their domicile or the
place where the marriage was celebrated.!

112. Same—Common-Law Theory of Coverture.
A single fundamental theory or doctrine of the law is
often the starting point or basis of a multitude of subsid-

' Polydore v. Prince, Ware (U. 8.) 402; Prosser ». Warner, 47 Vt.
667, 19 Am. R. 132; Blackington v. Blackington, 141 Mass. 482, 55
Am. R. 484; Harrison v. Harrison, 20 Ala. 629, 56 Am. D. 227; Maguire
v. Maguire, 7 Dana (Ky.), 181, 186; Williams v. Oates, 5 Ired. L. (N.
Car.) 535.

100
PERSONAL RIGHTS AND DUTIES O SUpUBES. A, “104

SP jae
lary rules, as, for example, the doctrine of mu uttal ‘assent
in the law of contract. This is strikingly true when we
come to deal with the relation of husband and wife under
the common law, where the basic principle or doctrine
is found in what is often termed the fiction of unity,
whereby husband and wife are considered one person, the
very existence of the woman being deemed suspended
during coverture, and merged or incorporated in that of
the husband.

Sometimes the fundamental common-law theory is ex-
pressed by saying that the wife or feme during marriage
is under the cover or protection of her husband (her lord
or baron), who, for her good and for that of offspring,
is the head of the family and paramount. Hence, during
marriage the wife is called feme covert, and her condition
is known as coverture. It must be confessed that these
theories of merger on the one hand, and protection or
guardianship on the other, are not capable of entire recon-
ciliation, for the former, if pushed to its logical conclusion,
would leave wives void of legal responsibility for both
crime and tort, which is only true to a limited extent;
and they are under the full protection of the criminal
law even as against their husbands. Doubtless the courts
sometimes proceed upon one of these theories and some-
times upon the other,” or adopt both together, though the
theory of unity through the legal merger of the wife’s
existence in that of her lord or baron is the dominant one.*
However this may be, the recognition of either or both
theories as the basis of decision will usually lead to the
same results—results that are most strikingly exemplified
in the marital property scheme of the common law and
the incapacity of the wife to contract either with her
husband or with strangers,‘ though they influence to some

 

12 Bl. Comm. 483.

2 See Schouler’s Hus. & Wife, sec.6; 1 Pol. & Mait. Hist. Eng. L. 468.

3See Harris v. Webster, 58 N. H. 481; Prof. Bryce in “Studies in
Anglo-Am. Jurisprudence,” Vol. III, 815.

4See post, Chap. XIV.
102 PRRSONAL RIGHTS AND DUTIES OF SPOUSES

extent also the purely personal relations of the spouses
toward one another and toward their offspring. Whether
the common-law doctrine of coverture had its origin in
feudalism or not, feudalism as a military system logic-
ally ignored the wife’s legal rights and gave shape and
consistency to the English common law of coverture.

113. Mutual Rights and Duties in General.

The rights and duties of husband and wife, so far as
they concern their persons and personal relations, will
be considered under the following heads:

1. The right of mutual cohabitation and intercourse.

2. The right of personal control and discipline.

3. The right to confer the family name.

4, The right to fix and regulate the family home.

5. The duty of the husband to support the wife and her
duty to support him.

6. The right of the husband to the wife’s services and
earnings.

7. The rights and duties of one spouse as to the burial of
the other.

It may be well to note, however, that there are many
rights and duties of married persons that are of so-called
imperfect legal obligation, or else of merely moral cogni-
zance. Thus, though courts and writers sometimes dwell
upon the familiar vows of the marriage service, as if love,
honor and obedience were things that can be exacted by
a court of justice, it is clear that affection is something
that no court can award, and that married persons them-
selves are often powerless to yield. It is only where the
want of it manifests itself in the breach of some other
duty that the law interferes between spouses, though a
civil action may lie, as will be seen, against one who
alienates the affections of a spouse, or otherwise interferes
with the personal relations of husband and wife.! So,
though obedience is clearly due from the wife within
reasonable limits, the law as a rule, from the necessities

1 See post, secs. 138, 142 et seq,
RIGHT OF COHABITATION 103

of the case, simply leaves the husband to exact it if he
can. This will be more clearly apparent as we proceed.

114. The Right of Matrimonial Cohabitation and In-
tercourse.

Cohabitation, or rather matrimonial cohabitation,
means a dwelling together as husband and wife, and im-
plies, normally at least, sexual intercourse between the
parties, or the right to and opportunity for it. If either
spouse, without the consent of the other and without
legal justification or excuse, breaks off the cohabitation,
this usually constitutes desertion, which, if it continues
the requisite length of time, is a common cause for divorce
under modern statutes.!_ So, a wife who deserts without
justification forfeits her right to support, at least while
the desertion continues,? and the husband who deserts
may forfeit his right to the wife’s services and earnings;
and may confer upon her, at least to some extent, the
capacities of a feme sole,* or may become liable for her
maintenance under a decree for alimony.‘ Penal statutes
in most of our states provide for the arrest and prosecution
of deserting husbands, but these are usually meant to
enforce the duty of support rather than of cohabitation.®

The right to sexual intercourse between husband and
wife is well recognized. Thus, the husband cannot be

1 There is no direct remedy in our law by which the deserting party
may be brought back and compelled to resume cohabitation. Cruger
v. Douglas, 4 Edw. Ch. (N. Y.) 336, 506; Westlake ». Westlake, 34
Ohio St. 621, 32 Am. R. 397. Under the English ecclesiastical law a
suit could be brought in the matrimonial court to compel the husband
or wife guilty of abandonment or subtraction to return to cohabitation.
This was called a suit for restitution of conjugal rights. See 2 Bouv.
L. Die. (Rawle’s Ed.) 908, 3 Bl. Comm. 444. As to ancient and
modern status of this proceeding in England, see 1 Nels. Div. & Sep.,
sec. 101.

2See post, sec. 122. See as to the effect of desertion upon dower,
post, sec. 213.

8 See post, sec. 128.

4See post, sec. 410.

5 See post, sec. 126.
104. RIGHT TO CONTROL AND DISCIPLINE SPOUSE

guilty of a rape upon his wife, though he may be guilty as
an accessory or even as principal in the second degree,
as where he aids another in the commission of the offense.*
That the right is exclusive of third persons is well illus-
trated by the action for criminal conversation, later ex-
plained,? and by the fact that adultery is an almost uni-
versal ground for divorce. Whether the withholding of
sexual intercourse is cruelty or desertion within the mean-
ing of divorce statutes is not uniformly decided.* But
the husband’s insistence upon excessive indulgence may
constitute cruelty within the meaning of the divorce acts,®
or justify the wife in leaving him. A promise by either
spouse to pay the other for continuing the cohabitation
or submitting to sexual intercourse would be void, for
there would be no consideration therefor save the plainly
insufficient one of doing what the promisor was already
legally bound to do. But if the spouse who refuses co-
habitation is justified in so doing by cruelty or any other
legal cause, a promise made to secure his or her return will
probably be valid.’

115. Right of Personal Control and Discipline.

Most of the cases under this head naturally involve the
right of the husband to chastise and restrain the wife.
But whatever may have been the earlier common law,
the modern law, both in England and here, practically
denies the right of chastisement altogether.’ If he beats

1See People ». Chapman, 62 Mich. 280, 4 Am. St. R. 857; State ».
Dowell, 106 N. Car. 722, 19 Am. St. R. 568,8 L. R. A. 297; post,
sec. 156.

2 See post, sec. 145.

3 See post, sec. 350.

4 See post, secs. 358, 369.

5 See post, sec. 358.

® Rerthmaier ». Beckwith, 35 Mich. 110; Roberts». Frisby, 38 Tex. 219.

7 Copeland v. Boaz, 9 Baxt. (Tenn.) 223, 40 Am. R. 89; Phillips ».
Meyers, 82 Ill. 67, 25 Am. R. 295. But se see Merrill v. Peaslee, 146 Mass.
460, 4 Am. St. R. 334.

* For what is supposed to have been the older common-law rule see
1 Bl. Comm. 444; State ». Rhodes, 61 N. Car. 453, 98 Am. D. 78.
RIGHT TO CONTROL AND DISCIPLINE SPOUSE 105

her, therefore, even under the guise of wholesome correc-
tion, he is criminally liable for assault and battery,’ and
his conduct may be cruelty warranting divorce. But
either spouse may use necessary force in defending an
assault by the other.? So, too, the husband may doubtless
restrain the wife forcibly where she is about to commit
adultery or a crime,’ or a tort, at least if its commission
might involve him in legal responsibility.* So, it has been
held that he may forcibly prevent her from interfering
with his lawful exercise of parental authority.’ And there
can be but little doubt that a wife would have a right to
restrain the husband from the commission of a serious
offense or to use forcible constraint where his insanity
made it likely that he would injure himself or others.®
Beyond the limits above outlined the modern law does not
even sanction physical constraint of the wife. Anything
that amounts to permanent restraint or continued im-
prisonment is unlawful, and the wife is entitled to dis-
regard it if she can or to have relief by habeas corpus.”

Clearly either spouse may petition in habeas corpus
where the other is unlawfully imprisoned or restrained
by third persons.?®

1Queen v Jackson, L. R. 1 Q. B. 671; Pearman v. Pearman, 1 Sw. &
Tr. 601; Carpenter ». Com., 92 Ky. 452, 456; Com. v. McAfee, 108
Mass. 458, 11 Am. R. 383; State v. Oliver, 70 N. Car. 60.

2 People v. Winters, 2 Park. Cr. R. (N. Y.) 10; State v. Rhodes, 61
N. Car. 453, 98 Am. D. 78.

3 Richards v. Richards, 1 Grant (Pa.), 389.

4See post, secs. 133, 135.

5 Gorman 2. State, 42 Tex. 221.

6 See post, sec. 632.

7 Queen v. Jackson, L. R. 1 Q. B. 671 (1891), overruling In re Coch-
rane, 8 Dowl. 631 (1840); State ». Weathers, 98 N. Car. 685, 687. It
has been held that the husband has a right to lay the wife under
temporary restraint where she is dishonoring or injuring him by going
into lewd company or is squandering his estate. Rex. v. Lester, 1 Stra.
478; State v. Craton, 28 N. Car. 164. But this rule would hardly
justify more than a strictly temporary interference at the present
time.

8 In re Chace, 26 R. I. 351, 69 L. R. A. 493.
106 DOMICILE OF SPOUSES

116. Right to Confer the Family Name.

The husband has the right by law and custom to confer
the family name upon his wife and children,’ and the wife
retains his name even after absolute divorce, unless the
court under authority of statute authorizes her to resume
her maiden name.? Still there is nothing in the common
law that prevents spouses from assuming the wife’s family
name by agreement and bearing it by reputation, and a
divorced woman or a widow may acquire her maiden or
another name by reputation.®

117. Same—Right to Fix the Family Residence or
Domicile—Citizenship of Wife.

Particularly in those departments of the law having
reference to status, domicile, as we have seen, plays an
important part. Furthermore, as the husband under
most systems of law is the head of the family, the domicile
of the wife and minor children is ordinarily the same as
his.

Immediately upon marriage, as a general rule, the wife
takes the domicile of the husband, and her domicile fol-
lows and changes with his whenever he in good faith ac-
quires a new one, regardless of where she actually resides.*®
While this rule had its origin in the unity of the spouses
and the dominance of the husband at common law, it
must still obtain in spite of the modern statutory inde-
pendence of the wife so long as public policy demands that
he be regarded as the head of the family, burdened pri-

1Fendall v. Goldsmith, 2 P. D. 263; Freeman v. Halkins, 77 Tex.
498, 19 Am. St. R. 769.

2 Fendall ». Goldsmith, supra.

3 Schouler’s Dom. Rel. (5th Ed.), sec. 40.

4See post, secs. 334, 483; ante, sec. 3.

5 Whart. Confl. L., sec. 102; Warrender v. Warrender, 2 Cl. & F.
488; Harvie v. Farnie, 6 P. D. 35, 46; Anderson ». Watts, 1388 U.S. 694;
Hascall v. Hafford, 107 Tenn. 355, 89 Am. St. R. 952; Suter v. Suter,
72 Miss. 171; Shute v. Sargent, 67 N. H. 305; Loker ». Gerald, 157
Mass. 42, 34 Am. St. R. 252; 16 L. R. A. 497, Jac. on Dom., sec. 209,
and cases cited.
DOMICILE OF SPOUSES 107

marily with the duty of its maintenance. In fact any
agreement, antenuptial or otherwise, between the husband
and the wife or between him and third parties, whereby
he seeks to divest himself of the right to fix the family
home would probably be deemed contrary to public
policy and void.'!' The rule that the husband has a right
to change the family domicile, and that in so doing he
changes that of the wife, applies only where he acts in
good faith and not arbitrarily or through caprice or whim,’
or with intent to deprive her of some benefit or advantage
which a domicile already acquired affords,? or as a punish-
ment to her; ‘ and she is plainly not bound to follow him
to a new home or to remain in the one provided where to
do so would be likely to endanger her life or health,® or
subject her to serious hardship and discomfort.6 Further-
more, it is well settled that when the husband has com-
mitted an offense giving the wife just cause for divorce or
separation, she may retain her old domicile or acquire a
new one for the purpose of obtaining a divorce.’ Indeed,
the modern tendency is to go further and to hold that
whenever the misconduct of the husband is such as to
work a forfeiture of his right to cohabitation and the com-
panionship of his wife, or he has willfully abandoned her,
she may have a domicile separate from his, regardless of
the divorce laws, which will be recognized wherever it
is fairly necessary for her advantage or protection, with-

1See Schouler’s Dom. Rel. (5th Ed.), sec. 38; Franklin ». Franklin,
154 Mass. 515, 13 L. R. A. 843, 26 Am. St. R. 266; Hair ». Hair, 10
Rich. Eq. (S. Car.) 163. Compare Shute v. Sargent, 67 N. H. 305;
Matter of Florance, 54 Hun (N. Y.), 328, 7 N. Y. Supp. 578.

2 Cutler v. Cutler, 2 Brewst. (Pa.) 511; Boyce v. Boyce, 23 N. J. Eq.
337.

* Boyce v. Boyce, supra; Powell v. Powell, 29 Vt. 148. As to the
wife’s separate domicile, for divorce purposes, see post, sec. 334.

‘Boyce v. Boyce, supra.

§ Boyce v. Boyce, supra; Powell v. Powell, supra; Gleason v. Gleason,
4 Wis. 64.

* Bishop v. Bishop, 30 Pa. 412, 415, and cases cited in the note above.

7 See post, sec. 334.
108 DOMICILE OF SPOUSES

out reference to divorce or other legal proceedings against
him.

Though a woman divorced a mensa et thoro still has
the status of a wife, the personal duties owing in the mar-
riage relation, including the duty to live with the husband,
are released, and she may have or acquire a domicile
separate from him. A mere amicable arrangement,
however, under which the husband and wife live apart,
will not give her power to acquire a separate domicile,
it seems, even though she actually resides in another state.*
Upon her widowhood or absolute divorce the wife retains
the domicile that she had at the time until she exercises
her power as a single woman to acquire a new one.*’ How
far the citizenship of the wife and children follows that
of the husband is discussed in another place.®

118. Right to Regulate the Family Home.

Generally the husband has a legal right to regulate the
family home. As to the extent of this right beyond the
exclusion of improper visitors little can be affirmed, save
that his arbitrary, tyrannical or brutal conduct under the
pretext of its exercise may bring him within the pale of the

1 Cheever v. Wilson, 9 Wall. (U. 8.) 108, 124; Williams v. Williams,
130 N. Y. 193, 27 Am. St. R. 517, 14 L. R. A. 220; Watertown v.
Greaves, 50 C. C. A. 172, 112 Fed. 183, 56 L. R. A. 865; Shute »v.
Sargent, 67 N. H. 305; In re Florance, 54 Hun (N: Y.), 328, 7 N. Y.
Supp. 578. That she may acquire a separate domicile where the
husband is permanently insane, see McKnight v. Dudley, 148 Fed.
204; McPherson v. Housel, 13 N. J. Eq. 35.

* Barber v. Barber, 21 How. (U. 8.) 582; Vischer ». Vischer, 12
Barb. (N. Y.) 640; Hunt ». Hunt, 72 N. Y. 217, 28 Am. R. 129; Over-
seers of Poor v. Overseer, 84 Pa. 429; Dolphin ». Robins, 7 H. L. Cas.
390, 415.

4 Warrender v. Warrender, 2 Cl. & F. 488, 524; Barber ». Barber,
supra; Hood v. Hood, 11 Allen (Mass.), 196, 87 Am. D. 709; Dougherty
v. Snyder, 15 S. & R. (Pa.) 84, 16 Am. D. 520. Clearly she could ac-
quire no such right from her own act of desertion.

* Pennsylvania v. Ravenal, 21 How. (U. 8.) 103; Barber ». Barber,
supra; Bennett v. Bennett, Deady (U. 8.), 299.

5 See post, sec. 711.
MAINTENANCE OF. WIFE 109

divorce statutes or render him criminally liable.t It is
also his right to regulate the family expenses so long as
he-is responsible for them and is not guilty of plain neg-
lect to provide, as later explained, and the wife’s agency
to procure family necessaries is largely within his control,
as will shortly appear.’

If the husband is unable to act through insanity or
detention from home, the wife seems authorized to act as
head of the family, at least so far as the strict exigencies
of the case may require,* and so under statutes where he
is guilty of abandonment or failure to provide.

119. Husband’s Duty to Support Wife—In General.

The husband is legally bound to support his wife. In-
deed his obligation to do so is more perfect, or at least
better defined under the common law, than his obligation
to support his children.‘ In its civil aspects this obligation
may be conveniently discussed under two general heads: ®

1. Where the spouses live together.

.2. Where they live in separation.

120. Same—Where Husband and Wife Live Together.

When the spouses live together the husband’s duty to
support the wife, so long as he has the ability, is unques-
tioned. If he neglects his duty, however, the common law
affords her no direct remedy for its enforcement, though she
may realize her support indirectly, as will shortly appear.®
But while cohabitation continues the law regards the wife

1§chouler’s Hus. & W., sec. 70; Kelley v. Kelley, L. R. 2 P. & D. 31;
Shaw v. Shaw, 17 Conn. 189; Com. ». Wood, 97 Mass. 225; People v.
Winters, 2 Park. Cr. R. (N. Y.) 10; Com. v. Barry, 115 Mass. 146.

2 See post, secs. 119, 120, 126.

3 See post, sec. 311.

4 See post, secs. 488 et seq.

5 For the criminal aspect of the husband’s non-support of wife or
children, see post, sec. 126. As to non-support as a ground for divorce,
see post, secs. 375-et seq.

* Morrison v. Holt, 42 N. H. 478, 80 Am. D. 120; Hallett v. Hallett,
8 Ind. App. 305. See post, next section.
110 MAINTENANCE OF WIFE

as clothed, at least prima facie, with an authority or
agency to procure on the credit of the husband all or-
dinary and usual personal and household necessaries for
herself and the family suitable to the husband’s fortune,
station and mode of life.t If she goes beyond this, how-
ever, those dealing with her on the credit of the husband
must show express authority, or it must affirmatively
appear that he impliedly authorized her to bind him, as
by paying for similar purchases without objection,” or
ratified her purchases either expressly, or impliedly as by
retaining the property, or permitting her to retain it with
knowledge of the facts. Even where the husband and
wife are living together, a third person who shows that he
supplied her with necessaries on the credit of the husband
has made out at most a mere prima facie case against him;
for the husband has a right to support the family in his
own way and may rebut such prima facie case by showing
that he had supplied his wife with necessaries himself or
with funds to buy them, when it makes no difference that
the things supplied were in their nature necessaries, and
that the plaintiff acted in good faith and in ignorance of
the facts.? The plaintiff must meet this proof by showing
an agency in fact, or such conduct or acquiescence by the

1Emmett v. Norton, 8 Car. & P. 506; Jolly 2. Rees, 33 L. J. C. P.
177, 15 C. B. (N. 8.) 628; Manby 2. Scott, 1 Sid. 109, 2Sm. Lead. Cas.
450; Lane v. Ironmonger, 13 M. & W. 368; Harrison v. Grady, 13 L. T.
Rep. 369; Flynn v. Messinger, 28 Minn. 208, 41 Am. R. 279; Wilson ».
Herbert, 44 N. J. L. 454; Alley 1. Wynn, 134 Mass. 77, 45 Am. R. 297.
See post, sec. 124.

* Montague v. Benedict, 3 B. & C. 673, 2 Sm. Lead. Cas. 483; Bergh.
v. Warner, 47 Minn. 250, 28 Am. St. R. 362; Anthony ». Phillips, 17
R. I. 188, 11 L. R. A. 182.

3 Manby ». Scott, 1 Sid. 109, 2 Sm. Lead. Cas. 450; Seaton v. Bene-
dict, 5 Bing. 28, 15 E. C. L. 454; Holt ». Brien, 4 B. & Ald. 252, 6 E.
C. L, 472; Jolly v. Rees, 15 C. B. (N. 8.) 628; Debenham ». Mellon,
L. R. 6 App. Cas. 24; Cromwell v. Benjamin, 41 Barb. (N. Y.) 558;
Bergh v. Warner, 47 Minn. 252, 28 Am. St. R. 362; Clark v. Cox, 32
Mich. 204; Wanamaker v. Weaver, 176 N. Y. 75, 65 L. R. A. 529, 98
Am, St. R. 621. Compare Sauter v. Crutchfield, 28 Mo. App. 150,
156; Ruddock v. Marsh, 1 H. & N. 601; Dolan v. Brooks, 168 Maas. 350.
MAINTENANCE OF WIFE 111

husband as would warrant him in assuming such an agency
to exist,! or a ratification; and ratification will be implied
where, with knowledge of the facts, the husband permits
the retention of articles bought upon his credit, but with-
out his authority.?. But in order that the husband shall
be bound even for necessaries supplied the wife on the
basis of a ratification, they must be purchased on his credit
and not on hers.*

Even though the husband has actually or apparently
authorized the wife to act as his agent, whether in the
purchase of necessaries or otherwise, he may withdraw
this authority at any time by giving notice to third per-
sons, provided he supplies her with necessaries himself.‘

121. Same—Where Husband Neglects Duty.

A husband who plainly neglects his legal duty to support
his wife, whether she lives with him or is separated from
him upon what the law regards as just grounds, is still
liable for her support, though the common law gives her
no direct means of realizing it. In such cases she may
realize it indirectly by pledging his credit to third parties
for necessaries supplied, and the husband will be bound
for their reasonable value. This liability is often said to
rest upon an agency created by law, but it seems better
to ground it upon the principle of quasi contract, for the
husband is liable to third persons who supply the wants of
his neglected wife upon his credit even though she is in-
capable of performing any true act of agency, as where she
is unconscious or insane, or where he, by reason of insanity,
infancy or other cause, is incompetent to appoint an agent

1 Keller v. Phillips, 39 N. Y. 351; Gilman v. Andrus, 28 Vt. 241, 67
Am. D. 713; Bergh ». Warner, supra.

2 Seaton v. Benedict, 5 Bing. 28, 15 E. C. L. 454; Gilman v. Andrus,
supra; Jones v. Gutman, 88 Md. 355; Woodward v. Barnes, 43 Vt. 330.

4See post, next sec., note 4; Shuman »v. Steinel, 129 Wis. 422, 116
Am. St. R. 961, 7 L. R. A. (N. 8.) 1048, and note.
4 Cromwell v. Benjamin, 41 Barb. (N. Y.) 568; Brevier v. Galloway,

71 Ill. 517; Wanamaker v. Weaver, 176 N, Y. 75, 65 L. R. A. 529, 98
Am, St. R. 621. See post, sec. 123.
112 MAINTENANCE OF WIFE

or to make a valid contract in person.! His liability would
no doubt be limited in any case to the reasonable value of
the thing supplied, though the wife may have agreed to
pay more, unless there was an agency in fact or by estoppel
or a ratification.? But it is held that one who supplies a
neglected or abandoned wife with money generally, can-
not be subrogated to the rights of one who has sold her
necessaries and been paid for them out of the borrowed
funds, so as to recover from the husband the value of the
necessaries furnished.’ If the lender in such cases actually
saw to the expenditure of the money, he could doubtless
recover. In any case, however, if credit is expressly
given to the wife and not to the husband, he is not liable
in any form of action, whether she or her estate is liable
or not.®

122. Same—-Husband and Wife Separated—Forfeiture
or Suspension of Wife’s Right to Support.

Where the wife is living separate from the husband her
right to support depends, as a rule, upon whether the
separation is due to his fault or hers. If he has unjus-
tifiably abandoned her, or has forced her to leave him by
stress of his own misconduct, she may still pledge his

1 Keener’s Quasi Contract, 23; Cunningham ». Reardon, 98 Mass.
538, 96 Am. D. 670; Bergh v. Warner, 47 Minn. 250, 28 Am. St. R. 362.
See post, secs. 542, 553, 645. Where the husband abandoned the wife
leaving her destitute, it was held that she might sell sufficient of his
property to realize her support. Ahern v. Easterly, 42 Conn. 546.

2 Sprayberry v. Merk, 30 Ga. 81, 76 Am. D. 637.

8 Skinner v. Tyrell, 159 Mass. 474, 38 Am. St. R. 447, 21 L. R. A. 673.
But the right of subrogation has been recognized in Walker v. Simpson,
7 W. & 8. (Pa.) 83, 42 Am. D. 216, and Kenyon ». Farris, 47 Conn.
510, 36 Am. R. 86, and by several text writers of repute and by several
cases in England. See Skinner v. Tyrell, supra, and authorities cited.

“Marshall v. Perkins, 20 R. I. 34, 78 Am. St. R. 841. As to money
loaned infant, see post, sec. 552.

’ Wilson 2. Herbert, 44 N. J. L. 454; Baker », Carter, 88 Me. 132,
23 Am. St. R. 764; Gafford v. Dunham, 111 Ala. 551; Skinner », Tyrell,
159 Mass. 474, 38 Am. St. R. 447, 21 L. R. A. 673. See also Harshaw
v. Merryman, 18 Mo. 106.
MAINTENANCE OF WIFE 113

credit for necessaries unless he supplies her himself.1_ The
husband, however, is liable for the support of the wife
where the parties have separated by mutual consent,
unless the wife has an adequate allowance from him and
it is regularly paid,? or unless she has agreed to accept a
fixed allowance for her support and look to her own means ,
or exertions for the rest, when she cannot pledge his
credit though the allowance is insufficient, unless she
offers in good faith to resume cohabitation and her offer
is refused.®

Where the wife is in fault, as where she has left the hus-
band without legal cause and without his consent, her
right to support is forfeited, or at least suspended, and she
cannot bind him for necessaries in the absence of his
express or implied authority or consent so long as the
separation continues,‘ and the same rule has been applied
where the husband was forced to leave the wife on account
of her cruelty or other misconduct warranting divorce.*

Precisely what will justify a wife in leaving her husband
so as to entitle her to pledge his credit for necessaries
notwithstanding separation, is not altogether certain. His
misconduct warranting divorce, whether limited or ab-
solute, would doubtless be deemed sufficient justification
everywhere, and so perhaps, would his adultery or cruelty
even where divorce is not granted for those causes.6 In
fact any positive misconduct of the husband which clearly

1 Harris v. Morris, 4 Esp. 41; Blowers v. Sturtevant, 4 Denio (N. Y.),
46; Cunningham »v. Reardon, 98 Mass. 538, 96 Am. D. 670.

2 Nurse v. Craig, 5 B. & P. 148; Daubney v. Hughes, 60 N. Y. 187;
Mizen v. Pick, 3 M. & W. 481; Crittenden ». Schermerhorn, 39 Mich.
661, 33 Am. R. 440; Pearson v. Darrington, 32 Ala. 227; Baker v.
Barney, 6 Johns. -(N. Y.) 72; Vusler v. Cox, supra.

* Eastland v. Burchell, 3 Q. B. D. 500; Alley». Wynn, 134 Mass. 77,
45 Am. R. 297. Compare Schouler’s Dom. Rel. (5th Ed.), sec. 68, and
cases cited; Pearson v. Darrington, supra.

4Manby ». Scott, 1 Sid. 109, 2 Sm. Lead. Cas. 458, and notes;
Vusler v. Cox, 53 N. J. L. 516; Catlin ». Martin, 69 N. Y. 398.

5 Sawyer v. Richards, 65 N. H. 185.

¢ But see Hair »v. Hair, 10 Rich. Eq. (8. Car.) 163.

8
114 MAINTENANCE OF WIFE

renders cohabitation intolerable or unsafe ought in reason
to justify the wife in leaving him and enable her to pledge
his credit for necessaries, unless he voluntarily discharges
his duty of support, though the authorities on this point
are not altogether clear or harmonious.! It would seem
that like misconduct on her part would justify him in
leaving her, and that when he had done so her right to
support would be forfeited. A deserting wife is reinstated
in her right to support, however, if she offers in good faith
to return to her duty, whether her husband receives her
back or not.? Neither her offer to return, however, nor
the acceptance of such offer by the husband will render him
liable for necessaries furnished her during her desertion.’
But if the wife commits adultery and elopes, or elopes and
commits adultery, or is turned away for her infidelity, or
is guilty of that offense pending voluntary separation,
she cannot pledge her husband’s credit for necessaries
unless he connived at her wrongdoing; and her offers to
return are of no avail and her right to support is forfeited
unless the husband voluntarily receives her back.‘ It has
been so held in England even where both parties were
guilty of adultery,’ but this is probably not the law
either there or in this country, and the husband must
support the wife under such circumstances whether the
parties are living together or apart.§

18ee Houliston v. Smith, 3 Bing. 127; Blowers ». Sturdevant, 4
Denio (N. Y.), 46; Descelles ». Kadmus, 8 Ia. 51; Kemp ». Downham,
5 Harr. (Del.) 417; Breinig v. Meitzler, 23 Pa. 156; Johnson ». Allen,
100 N. Car. 131, 140. ‘

2Wilhkams ». McGahay, 12 Johns. (N. Y.) 292; M’Cutcheon 2.
M’Gahay, 11 Johns. (N. Y.) 281, 6 Am. D. 373; Clement v. Mattison,
3 Rich. L. (8. Car.) 93. Compare Manby 2. Scott, 1 Sid. 109, 2 Sm.
Lead. Cas. 450. :

2Qinson v. Heritage, 115 Ind. 73; Reese v. Chilton, 26 Mo. 598.
Compare Rennick v. Fincklin, 3 B. Monr. (Ky.) 166.

4 Cooper v. Lloyd, 6 C. B. (N. 8.) 519; Harris ». Morris, 4 Esp. 41;
Hunter v. Boucher, 3 Pick. (Mass.) 289; Quincy v. Quincy, 10 N. H. 272.

5 Govier v. Hancock, 6 T. R. 608.

6 People v. Shrady, 24 N. Y. Misc. 532; 1 Bish. Mar. Div. & Sep.,
sec. 1231; Wilson v. Glossop, 19 Q. B. D. 379.
MAINTENANCE OF WIFE 115

123. Same—Effect of Notice on Husband’s Liability.

If the wife has in no way forfeited her right to support
and the husband has plainly neglected his duty to furnish
it, no notice from him to individuals or to the public
generally will prevent him from becoming liable to those
who relieve her necessities upon the basis of his credit. \,
The most that notice can do is to terminate his respon-
sibility for any wider authority -that she may appear to
possess from her position in his household or from his
prior acquiescence or consent.” It is generally held, how-
ever, that the mere fact that the parties are living in
separation should put third persons upon inquiry, and they
deal with the wife at their peril that the fault-is hers,* and
the burden is upon those who furnish her necessaries to
show that she was authorized to bind the husband in
fact, or that the separation was mutually voluntary or
was due to his fault. But even where the wife is in
fault, if the husband permits her to remain in the family
Home, though he quits it himself,> notice has been held
necessary to terminate his liability for necessaries; and
this may also be the rule where the separation is un-
known and the appearances are equivocal, at least as
against those who have previously dealt with her on his
credit.®

1 Bolton »v. Prentice, 2 Strange, 1214; Harris v. Morris, supra;
M’Cutcheon v. M’Gahay, 11 Johns. (N. Y.) 281, 6 Am. D. 373; Crom-
well ». Benjamin, 41 Barb. (N. Y.) 558; Watkins ». DeArmond, 89
Ind. 553.

2 Wanamaker v. Weaver, 176 N. Y. 75; 98 Am. St. R. 621, 65 L. R.
A. 529; Sibley ». Gilmer, 124 N. Car. 631; Colwell v. Phillips, 17 R. I.
188, 11 L. R. A. 182; Walker v. Laighton, 31 N. H. 111.

8 Longworth v. Hockmore, 12 Mod. 144, 1 Ld. Raym: 444; Hare ».
Gibson, 32 Ohio St. 33, 30 Am. R. 568, and cases cited; Vusler v. Coz,
53 N. J. L. 516, and cases cited; M’Cutcheon ». M’Gahay, 11 Johns.
(N. Y.) 281, 6 Am. D. 373.

4Vusler ». Cox, supra; Morgenroth v. Spencer, 124 Wis. 564; Bergh
v. Warner, 47 Minn. 250, 28 Am. St. R. 362.

5 Norton v. Fazan, 1 B. & P. 226.

6 Anthony v. Phillips, 17 R. I. 188, 11 L. R. A. 182; Sibley v. Gilmer,
124 N. Car. 631. And see Vusler v. Cox, 53 N. J. L. 516,

a
116 MAINTENANCE OF WIFE

124. Same—What Deemed Necessaries.

Generally where the spouses live together the prima
facie authority of the wife to bind the husband extends to
whatever of personal or household and family use or
necessity is appropriate to the mode or style of living he
chooses to adopt,! though some courts appear to extend
it to whatever is appropriate to his means and circum-
stances in life, though he chooses to live on a humbler
scale.2 Where the husband neglects his duty of support,
whether the wife is living with him or is separated from
him through his fault, or by his consent, she is clothed, as
we have seen, with a so-called agency in law to bind him
for her necessaries,’—an agency that he cannot withdraw
or control by notice or otherwise. The precise limits of
the husband’s liability in case of separation, however, does
not seem clearly determined. She is entitled, it would
seem, to procure on her husband’s credit whatever is
necessary to her life, health and reasonable comfort in
accordance with his means and station in life withomt
reference to the style of living he may choose to adopt for
himself. Within these limits the agency of necessity, at
least in cases of separation, rests quite strictly upon the
wife’s needs. If she has means of her own, therefore, it
has been held by some courts that she can pledge the hus-
band’s credit only to the extent that these means are
insufficient to supply her reasonable wants.* But other

1Manby v. Scott, 1 Sid. 119, 2 Sm. Lead. Cas. 450; Montague ».
Benedict, 3 B. & C. 631; Renaux v. Teakle, 20 Eng. L. & Eq. 345, 22
L. J. (N.S.) 241; Morgan v. Chetwynd, 4 F. & F. 451; Sauter v. Scrutch-
field, 28 Mo. App. 150; Raynes v. Bennett, 114 Mass. 424; Vusler ».
Cox, 53 N. J. L. 516.

2 See Bergh v. Warner, 47 Minn. 250, 28 Am. St. R. 362; Breinig v.
Meitzler, 23 Pa. 156, 160.

4 See ante, sec. 121.

‘Collier ». Brown, 3 F. & F. 67; Kirk v. Christrand, 85 Minn. 108,
56 L. R. A. 333.

5 Clifford ». Laton, 3 Car. & P. 15; Liston ». Brown, 26 Ind. 489;
Hunt v. Hayes, 64 Vt. 89, 15 L. R. A. 661, 33 Am. St. R. 917, and cases
cited. That a deserted wife cannot recover of her husband her own
moneys expended for her support, see Pierce ». Pierce, 9 Hun, 50.
MAINTENANCE OF WIFE 117

courts hold that the fact that the wife has separate
estate or income in no wise impairs her right to full
support from her husband or her agency in law to real-
ize it.?

And while the wife living separate from the husband,
even through his fault, cannot pledge his credit where he
has supplied her wants, it is not enough that he pays or
offers to pay her board at a particular place where she
does not care to live. She may procure suitable board
elsewhere and he is chargeable with the price.”

125. Same—Employment of Attorney—Counsel Fees.

As a general rule the husband is liable for the services
of an attorney employed in the necessary defense of the
wife against a criminal prosecution, or in any other pro-
ceeding where the employment of an attorney is necessary
for her personal protection, so long as she lives with him
or is separated from him through his fault or by his con-
sent. On the ground, however, that the husband’s ob-
ligation to supply the wife with necessaries is to sustain
her as his wife and not to provide for her future in separa-
tion or as a single woman, or perhaps as the wife of another,
it is generally held that the husband is not liable for the
services of an attorney in prosecuting her suit for divorce.
There are cases to the contrary, however, even where the
suit is for absolute divorce, provided it is bona fide and

1 Ott v. Hentall, 70 N. H. 231, 51 L. R. A. 226; Miller ». Brown, 47
Mo. 504, 509, 4 Am. R. 345.

2 Kirk »v. Christrand, 85 Minn. 108, 56 L. R. A. 333; Senft v. Car-
penter, 18 R. I. 545. Compare Pidgin v. Cram, 8 N. H. 350.

3 Conant ». Burnham, 133 Mass. 503, 43 Am. R. 532; Warner v.
Heiden, 28 Wis. 517, 9 Am. R. 515; Munson v. Washband, 31 Conn.
303, 88 Am. D. 151; Morris v. Palmer, 39 N. H. 123. Held otherwise
where the proceeding might properly be brought at the expense of the
state and through its officers. McQuhae v. Rey, 23 N. Y. Supp. 16,
3 Misc. Rep. 550; Conant ». Burnham, supra.

4 Morrison v. Holt, 42 N. H. 478, 80 Am. D. 120; Clark v. Burke, 65
Wis. 359, 56 Am. R. 631, and cases cited; Yeiser ». Lowe, 50 Neb. 310;
Sears v. Swenson (8. Dak.), 115 N. W. Rep. 519.
118 MAINTENANCE OF WIFE

based upon reasonable grounds,! and some authorities
distinguish between suits for absolute and those for lim-
ited divorce, holding the husband liable as upon an im-
plied contract for attorney’s fees only in the latter case.’
The power of the court in a divorce action to order and
compel the husband to pay the wife’s counsel fees therein,
and as ancillary thereto, is elsewhere discussed.*

126. Miscellaneous Remedies for Realization of Sup-
port.

Courts of equity in a few states have inherent power to
award alimony to a wife whose husband neglects to sup-
port her, independent of an action for divorce, and in
some others such alimony may be granted under statutes.‘

By statutes in England and many of our states, the
neglect or refusal of a man to support his wife is a crim-
inal offense, provided he has the ability to furnish support,
and the other circumstances bring the case within the
purview of the law.®

In some states it has been held that when a wrongfully
abandoned wife has become a public charge, the town or
county may recover from the husband for her support
without the aid of statute; ® but in others it is held to be
contrary to justice and public policy to permit the publis.
authorities to interfere in this way against husbands in
controversies with their wives.’

1 Ceceato v. Deutschman, 19 Tex. Civ. App. 434; Sherwin ». Maben,
78 Ia. 467, and cases cited; Gosselt v. Patten, 23 Kan. 340.

? Williams ». Monroe, 18 B. Monr. (Ky.) 514; Kellogg ». Stoddard,
81 N. Y. Supp. 271, 40 Misc. Rep. 92; Morrison v. Holt, 42 N. H. 478,
80 Am. D. 120.

3 See post, secs. 413, 418.

* See post, sec. 410; Mass. Pub. Stat., Chap. 147, secs. 33 et seq.

5 Wis. Rev. Stat., 1898, sec. 4587, is a good example of this class of
legislation. To willfully or wantonly neglect a sick or helpless wife may
be murder or manslaughter. See Reg. v. Plummer, 1 Car. & K. 600;
2 Bish. New Cr. L., sec. 686.

§ Sturnbridge v. Franklin, 160 Mass. 149; Rumney v. Keyes, 7 N. H.
571; Howard v. Whetstone Tp., 10 Ohio, 365.

7 Newton v. Rhodes, 18 Barb. (N. Y.) 100.
WIFE’S SERVICES AND EARNINGS 119

Even where the wife, by due process of law, has been
taken from the matrimonial home and confined in a public
insane asylum for treatment and safety, the husband is
not liable at common law, by the weight of authority, for
her support therein, even though he was instrumental in
having her committed,! though it has been held otherwise
where he had previously been guilty of a wrongful aban-
donment in fact.?

127. Necessaries Furnished to Mistress.

One who holds a woman out and lives with her as his
wife, though there is no marriage in fact, is liable for
necessaries furnished her on his credit while the cohabi-
tation continues, to the same extent as if she were a lawful
wife.* The rule clearly applies where the plaintiff in good
faith supposed the parties married,‘ and has even been
held applicable where the third party knew that there was
no marriage in fact. If the parties separate, however,
third persons supplying necessaries cannot recover on the
ground of quasi contract or agency created by law without
showing marriage in fact,® or circumstances from which
an authority express or implied may be inferred.’

128. Right of Husband to Wife’s Services and Earn-
ings.

At common law the husband has an absolute right to
his wife’s time, services and earnings, and to all income or

1 Richardson v. Steusser, 125 Wis. 66, 69 L. R. A. 829, and cases
cited. Compare Wray ». Cox, 24 Ala. 337.

2 Goodale v. Lawrence, 88 N. Y. 513, 42 Am. R. 259; Wray v. Wray,
33 Ala. 187; Davis v. St. Vincent’s Inst., 61 Fed. 277, 9 C. C. A. 501.
Statutes in some states declare the husband’s liability in such cases.
St. Vincent’s Inst. v. Davis, 129 Cal. 20; Chap. 376, Laws of Wis., 1905.

3 Debenham »v. Mellon, L. R. 6 App. Cas. 24. Compare Gornne ».
Franklin, 1 F. & F. 465.

4 Robinson v. Nahon, 1 Camp. 245.

5 Watson v. Threlkeld, 2 Esp. 637; Blades v. Free, 9 B. & C. 167, 17
E. C. L. 351; Debenham v. Mellon, L. R. 6 App. Cas. 24.

6 Munro v. De Chemant, 4 Camp. 215. Compare Hawley v. Hawley,
Tayl. (N. C.) 529.

7 Ryan v. Sams, 12 Q. B. 460.
120 WIFE’S SERVICES AND EARNINGS

profit produced thereby.! It has therefore been held that
a wife who was appointed custodian of her insane husband
was not entitled to compensation for her services in caring
for him, though she had made a contract therefor with his
guardian.? It has been held that a wife cannot recover
upon her husband’s express promise to pay her wages even
under a statute giving her a right to her general earnings.*

At common law the husband was entitled to recover
during marriage whatever was due the wife for services
performed for strangers prior to the marriage. Such earn-
ings while uncollected were choses in action, and as such
were governed by rules stated elsewhere. Earnings of the
wife in the service of strangers during marriage were the
husband’s absolutely and he could sue for them alone, in
the absence of an express promise to her,* and they did not
survive to her upon his death, but passed to his personal
representatives.® If there was an express promise to the
wife, however, the action to recover her wages must be by
the spouses jointly, and they could be recovered by the
wife alone after the husband’s death.’ It follows from this
that payment to the wife of her earnings during coverture
is no discharge unless she is authorized by the husband
to receive them, or they actually come to his hand;® and
his release of them will be good.

1 Buckley v. Collier, 1 Salk. 114; Seitz v. Mitchell, 94 U. S. 580;
Skillman ». Skillman, 15 N. J. Eq. 478, 82 Am. D. 279; Connors ».
Connors, 4 Wis. 112; Grant ». Green, 41 Ia. 88; Randall ». Randall,
37 Mich. 563.

? Grant v. Green, supra. See also Coleman ». Burr, 93 N. Y. 17, 45
Am. R. 160, and cases cited.

3 Swetzer v. Kee, 146 Ill. 577; Blaechinska ». Howard Mission, 130
N. Y. 497,15 L. R. A. 215.

4 See post, sec. 168.

* Buckley v. Collier, 1 Salk. 114; McDavid ». Adams, 77 Ill. 155;
Gould ». Carlton, 56 Me. 513; Prescott v. Brown, 23 Me. 306, 39 Am. D.
623; Skillman ». Skillman, 13 N. J. Eq. 403.

6 Prescott v. Brown, supra; Todd ». Todd, 15 Ala. 743.

7 Buckley v. Collier, supra; Prescott ». Brown, supra.

8 If the parties are separated by mutual consent and the wife sup-
BURIAL OF SPOUSE 121

Modern statutes quite generally give the wife a right
to her earnings, at least in the service of third persons, a
matter elsewhere discussed,’ and if the wife being pos-
sessed of an equitable separate property carries on a sep-
arate trade or business with the consent of her husband,
her earnings or profits therein will belong to her in equity
as against him, and often as against his creditors.”

Clearly, the husband may make a gift to the wife of her
earnings when they become either equitable or statutory
separate estate, though the validity of such gift as against
his creditors must depend upon principles elsewhere dis-
cussed.®

129. Rights and Duties of One Spouse as to Burial of
the Other.

If the wife dies it is the duty of the husband to afford
her decent burial. This rule has sometimes been said to
rest in the duty of the husband to furnish necessaries to a
living wife, but it has a broader foundation in public
policy and moral duty, and was probably recognized by
the ecclesiastical law.* If the husband neglects his duty
to bury his wife, or is absent and unable to perform it,
any third person who steps in and discharges it may re-
cover upon quasi contract the amount of the funeral
expenses, so far as they comport with the husband’s

ports herself, she would doubtless be deemed prima facie authorized
to receive her own earnings. Norcross v. Rodgers, 30 Vt. 588, 73 Am.
D. 323.

1 See post, sec. 240.

2See post, sec. 229. As to the right of a woman to recover for her
services where she has been defrauded into a void marriage, see post,
sec. 328.

2 See post, secs. 283 et seq.; Hazelbaker ». Goodfellow, 64 Ill. 241;
Connors ». Connors, 4 Wis. 112; Stimpson ». White, 20 Wis. 562.

‘See Bradshaw v. Beard, 12 C. B. (N. 8.) 344; Jenkins v. Tucker, 1
H. BI. 90; Matter of Weringer, 100 Cal. 345; Pettigrew »v. Pettigrew,
207 Pa. 313, 99 Am. St. R. 795, 64 L. R. A. 179; Galloway v. Mc-
Pherson, 67 Mich. 546, 11 Am. St. R. 596; Sears v. Geddey, 41 Mich.
590, 32 Am. R. 168.
122 BURIAL OF SPOUSE

means and social station.! Though the husband and wife
have separated under circumstances that relieve him from
liability for her necessaries, he is liable for her funeral
expenses so long as he is not divorced from her, for public
policy and common decency declare his duty.’ It has also
been held that a widow is bound to bury her deceased
husband,? though the courts would doubtless be liberal in
allowing her to recoup the funeral expenses out of his
estate.*

The right of the husband to recoup the funeral expenses
of the wife out of her estate is quite generally denied,
unless she has directed by will that they be so paid.®

130. Right to Fix and Change Place of Burial.

While the right to select the place of burial is generally
in the next of kin, a husband’s right in the first instance
to select the place of sepulcher of his deceased wife is
commonly deemed paramount to theirs,* and the same
right is now recognized as belonging to the wife, at least
if living with the husband at his death.’ But the right to

1 Jenkins ». Tucker, supra; Bradshaw v. Beard, supra, Cunningham
v. Reardon, 98 Mass. 538, 96 Am. D. 670.

2 Ambrose v. Kerrison, 10 C. B. 776; Bradshaw ». Beard, supra;
Seybold ». Morgan, 43 Ill. App. 39; Cunningham ». Reardon, supra;
Est. of Waesch, 166 Pa. 204.

* Fox v. Gordon, 16 Phila. (Pa.) 185; Cook ». Walley, 1 Col. App.
163, 167, and cases cited.

4France’s Est., 75 Pa. 220.

5 Est. of Waesch, 166 Pa. 204; Schneider ». Brier, 129 Wis. 446, 6 L.
R. A. (N.8.) 917, and note. The last case holds that the separate
estate of a wife is primarily liable under the statute for her funeral
expenses, unless credit was given solely to the husband. See also In re
Weringer, 100 Cal. 345.

6 Pettigrew v. Pettigrew, 207 Pa. 313, 99 Am. St. R. 795, 64 L. R. A.
179; Weld v. Walker, 130 Mass. 422, 39 Am. R. 465; Fox ». Gordon,
16 Phila, (Pa.) 185; Hackett 0. Hackett, 18 R. I. 155, 19 L. R. A. 558,
49 Am. St. R. 762.

’ Pettigrew v. Pettigrew, supra; Larson 7. Chase, 47 Minn. 307, 28
Am. St. R. 370, 14 L. R. A. 85; Koerber v. Patek, 123 Wis. 453, 471, 68
L. R. A. 956; Hackett ». Hackett, 18 R. I. 155, 19 L. R. A. 558, 49
Am. St. R. 762,
BURIAL OF SPOUSE 123

select a place of sepulcher and control the burial, is sub-
ject, in case of disagreement, to equitable supervision,
and the court may recognize the rights of the next of kin
in preference to those of husband or wife where public
decency or propriety or the feelings of relations should
properly control;! and doubtless the express wishes of the
deceased, though not in testamentary form, would have
great, and often controlling, weight.”

If a body is once interred the one who controlled the
burial in the first place may usually change the place of
sepulcher. But if there is objection by those nearly re-
lated to the deceased, the courts are loath to permit
removal without necessity, save with due regard to the
public health and the rights and feelings of all concerned.®

1 See Larson v. Chase, supra; Snyder v. Snyder, 60 How. Pr. (N. Y.)
368; Pierce v. Swan Point Cemetery, 10 R. I. 227, 14 Am. R. 667;
Pettigrew v. Pettigrew, supra; Hackett ». Hackett, supra.

2 See In re Donn, 14 N. Y. Supp. 189; Pettigrew v. Pettigrew, supra.
Compare Williams v. Williams, L. R. 20 Ch. Div. 659.

3 Fox v. Gordon, 16 Phila. (Pa.) 185; Pierce v. Swan Point Cemetery,
10 R. I. 227, 14 Am. R. 667; Peters v. Peters, 43 N. J. Eq. 140; Secor’s
Case, 10 Alb. L. J. 70; Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. D.
506, explained in Pettigrew v. Pettigrew, 207 Pa. 313, 99 Am. St. R.
795, 64 L. R. A. 179; Weld v. Walker, 130 Mass. 422, 39 Am. R. 465.
Though there is in strictness no property in a dead body the rights of
the next of kin and others near to the deceased have received quite
ample judicial protection against its desecration. On this point see
the full discussion in Koerber v. Patek, 123 Wis. 453, 68 L. R. A. 956.
CHAPTER XI

TORTS BY AND AGAINST HUSBAND AND WIFE—TORTS BE-
TWEEN SPOUSES

131. In General—Torts Between Spouses.

The husband is of course liable to third parties for his
own torts the same as if single. At common law, however,
neither spouse is answerable civilly, even after divorce,
for injuries to the person or character of the other inflicted
during coverture.!' It has even been held that the wife
cannot sue a third party at common law for injuries in-
flicted by him when acting with the husband or under his
direction.? These rules rest not so much upon the familiar
doctrines of coverture as upon the general impolicy of
allowing the married parties to become embroiled in civil
suits other than for separation or divorce, and hence sur-
vive in spite of statutes placing wives upon substantially
the footing of single women as to rights of property.®
But they do not militate against the right of either spouse
to have the other bound over to keep the peace,‘ or to
prosecute the other criminally, for this was common law.5

At common law neither spouse could sue the other for

1 Phillips v. Barnett, 1 Q. B. D. 436; Smith ». Smith, 73 Mich. 445,
16 Am. St. R. 594, 3 L. R. A. 52; Strom v. Strom, 98 Minn. 427, 116 Am.
St. R. 387,6 L. R. A. (N.S.) 191, and note.

* Libbey v. Berry, 74 Me. 286, 43 Am. R. 589; Abbott 7. Abbott, 67
Me. 304, 24 Am. R. 27. Compare Smith v. Smith, supra.

3 Libbey v. Berry, supra; Abbott ». Abbott, supra; Schultz ». Schultz,
89 N. Y. 611, overruling 27 Hun, 26; Strom 2. Strom, 98 Minn. 427, 116
Am. St. R. 387, 6L. R. A. (N. S.) 191, and note, and note to Frankel
», Frankel, 173 Mass. 214, in 73 Am. St. R. 266. Compare Smith »v.
Smith, 73 Mich. 445, 16 Am. St. R. 594, 3 L. R. A. 52.

‘Phillips v. Barnett, supra.

5 See post, sec. 156.

124
TORTS OF HUSBAND AND WIFE 125

injury to his or her property or property rights.!_ The
remedy in such cases was in equity by injunction against
unlawful interference or by suit for an accounting. Under
modern statutes in England, and doubtless in most states,
either spouse may sue the other as if sole for injuries af-
fecting the separate estate, as distinguished from personal
torts.”

132. Husband’s Liability for Wife’s Antenuptial Torts.

At common law the husband is liable, not merely upon
the antenuptial contracts of the wife,? but for all her un-
discharged debts and liabilities at the time of marriage,
whether founded upon her pure torts or upon her devas-
tavits or breaches of trust.*

The action must be brought against the spouses jointly,
subject to the rules as to abatement and survival stated
elsewhere with respect to her antenuptial debts. In
many states, however, the husband’s marital liability
for the wife’s antenuptial torts, as well as her antenuptial
contracts, is expressly abolished by statute, and in a few
states it is held to be impliedly abolished by statutes
which take away the marital interest of the husband in
the property of the wife and place her as to that substan-
tially in the position of a feme sole.®

1 Freethy v. Freethy, 42 Barb. (N. Y.) 641; Hobbs v. Hobbs, 70 Me.
381, 383.

2 Carney v. Gleissner, 62 Wis. 493; Chestnutt ». Chestnutt, 77 Ill. 346;
Bruce v. Bruce, 95 Ala. 563; Weldon v. De Bathe, L. R. 14 Q. B. D.
339; Burns v. Kirkpatrick, 91 Mich. 364, 30 Am. St. R. 485; Small ».
Small, 129 Pa. 366. See post, sec. 292.

3 See post, sec. 180.

4Bahin v. Hughes, 31 Ch. D. 390; Hawk ». Harman, 5 Binn. (Pa.)
43; Brown v. Kemper, 27 Md. 667, 672; Scott ». Gamble, 9 N. J. Eq.
218; Hubble v. Fogartie, 3 Rich. 413, 45 Am. D. 775.

5’ Hawk ». Harman, supra; Roberts v. Lisenbee, 86 N. Car. 136, 41
Am. R. 450.

®Culmer v. Wilson, 13 Utah, 138, 57 Am. St. R. 718. Compare
McElfresh v. Kirkendall, 36 Ia. 224. See 37 Am. St. R. 374, and
note.
126 TORTS BY HUSBAND AND WIFE

133. Liability of Husband and Wife for Wife’s Post-
nuptial Torts.

Generally by the common law the husband is not liable
upon the wife’s postnuptial contracts. They are nullities
both as to him and to her, save where she acts as his agent
or for the realization of her support. For her torts com-
mitted during marriage, however, he is responsible, either
alone or with her, at least where judgment is obtained
during coverture,! unless they are so far involved or con-
nected with contract that to enforce liability for her tort
would be virtually to enforce her contract.?, But probably
the law does not go to the extent of permitting the hus-
band or wife to retain the fruits of a contract obtained
by her positive fraud or misrepresentation. In such cases,
the contract being a nullity, the property may be re-
covered if either husband or wife still has it in specie.®
And where the contract and the false representations of
the wife can fairly be treated as independent matters,
the husband and wife are jointly liable within the rule of
the common law.*

As the common law never permitted the wife to be sued
alone during coverture, either in contract or tort, the re-
maining questions are partly of joinder of parties and

1Head v. Briscoe, 2 C. & P. 484, 24 E. C. L. 667; Kosminsky ».
Goldberg, 44 Ark. 401; Ferguson ». Brooks, 67 Me. 251, and cases
cited throughout this section.

2See post, sec. 183, and cases cited; Liverpool, etc., Assn. v. Fair-
hurst, 9 Exch. 422, 429; Keen v. Hartman, 48 Pa. 497,.88 Am. D. 472;
Keen v. Coleman, 39 Pa. 299, 80 Am. D. 524; Burnell v. Carr, 76 Vt.
174, and cases cited; Wright ». Leonard, 11 C. B. (N. 8.) 446. For
similar rules as to infants, see post, secs. 596 et seq.

3 See Wirt ». Denan, 44 Mo. App. 583; Shearer v. Fowler, 7 Mass. 31.
See post, sec. 183.

4TIn a recent case the wife entered into a contract with the plaintiff
for a joint speculation in certain shares. Later she falsely represented
that she had bought the shares, and by this means induced the plaintiff
to pay her a sum of money. Held that her false representation was
independent of the contract, and was not the inducement to it, and
that the action would lie. Earle ». Kingscote, 2 Ch. Div. (1900) 585.
See Wirt ». Denan, supra,
TORTS BY HUSBAND AND WIFE 127

partly of the liability of the husband during marriage, or
of the husband or wife after coverture has ceased for the
wrongs of the wife during its subsistence.!_ Both spouses
must therefore be joined in all suits for the wrongful acts
of the wife, committed during coverture, provided suit
is brought before the marriage is terminated by death or
divorce, subject to the following exceptions: ”

(a) If the tort is committed by the wife both in the
presence of the husband and by his command or procure-
ment, it is conclusively presumed that she acted under
his coercion. In such cases she is not liable at all, and
the husband must be sued alone, or, if she is sued with him,
judgment goes against him alone.’

(b) If the tort is committed by the wife in the presence
of the husband, it is presumed to have been the result
of his coercion, and he is solely liable. But this pre-
sumption is prima facie only, and subject to rebuttal,
and when rebutted the joinder of the wife as a party
defendant is necessary, and judgment must be against
both spouses.‘

(c) If the husband joins actively with the wife in the
commission of a tort, or actually commands it, he may
doubtless be sued alone, whether she acted freely or not
or in his presence or not.®

1 For the antenuptial tort of the wife the spouses were sued together.
But if an action of tort was pending against a woman at the time of
her marriage it proceeded to judgment and execution against her
alone. Hawk v. Harman, 5 Binn. (Pa.) 43.

2 Capel ». Powell, 34 L. J. C. P. 168, 17 C. B. (N. S.) 743; Carleton
». Haywood, 49 N. H. 314, 318; Ferguson v. Brooks, 67 Me. 251, 254;
Knowing v. Manly, 49 N. Y. 192, 10 Am. R. 346.

32 Kent’s Com. 149; Ferguson v. Brooks, supra; Kosminsky v. Gold-
berg, 44 Ark. 401; Cassin v. Delaney, 38 N. Y. 178; Carleton v. Hay-
wood, 49 N. H. 316; Flesh v. Lindsay, 115 Mo. 1, 37 Am. St. R. 374,
and note. Compare Handy ». Foley, 121 Mass. 259, 23 Am. R. 270.

4 Ferguson v. Brooks, 67 Me. 251; Marshall ». Oakes, 51 Me. 308;
Cassin v. Delaney, supra; Edwards ». Wessenger, 65 S. Car. 161, 95
Am. St. R. 789; Flesh v. Lindsay, supra.

5 Hinds v. Jones, 48 Me. 348; Flesh v. Lindsay, supra; Ferguson v.
Brooks, 67 Me. 256.
128 TORTS BY HUSBAND AND WIFE

(d) When the wife’s tort consists of conversion, even
though she was the sole actor, it seems that the husband
must be sued alone at common law, for, as the converted
property. was subject to his dominion jure mariti, the
conversion was deemed to his use.?

134. Same—Effect of Discoverture.

Except in cases where the husband could be sued alone
under rules already stated, judgment for the wife’s tort
could not be rendered against him alone during coverture,
and no action for her sole tort could be brought against
him after her death or an absolute divorce.” In any case,
however, where judgment is recovered against the hus-
band or against both spouses for the wife’s tort before the
death of either party or divorce, execution may, at com-
mon law, issue against his property if he survives, or the
judgment may be satisfied out of his or even her separate
estate.®

After the marriage is severed by the death of the hus-
band or by divorce, the wife becomes liable to be sued
alone for all her antenuptial torts, and for all her torts
committed during marriage, except such as were due to
his coercion, actual or implied from his presence or com-
mand, nor do actions pending against both spouses for
her sole tort abate as to her by his death.‘ If judgment
is rendered against both spouses for the tort of the wife,
no execution can issue against her property during cover-
ture, unless it be her separate estate, though it may issue
after the death of the husband or an absolute divorce,
and it seems that both spouses may be taken in execution

‘1 Shaw v. Hallihan, 46 Vt. 389, 393, 14 Am. R. 628; Estill ». Fort,
2 Dana, 237; Tobey v. Smith, 15 Gray (Mass.), 535. But see Knowing
v. Manly, 49 N. Y. 192, 198, 10 Am. R. 346. Compare Heckle 2.
Lurvey, 101 Mass. 366, 3 Am. Rep. 368.

2 Capel v. Powell, 17 C. B. (N. 8.) 743; Roberts ». Lisenbee, 86 N.
Car. 436.

3 Brown v. Kemper, 27 Md. 667, 673, and cases cited.

* Douge v. Pierce, 13 Ala. 127.
TORTS BY HUSBAND AND ‘WIFE 129

against the body.!. The fact that the husband and wife
were living apart at the time of her tort, even though they
were divorced a mensa et thoro, will not prevent him from
becoming liable for it under the rules above stated.

135. Same—Statutory Changes.

By the weight of authority statutes conferring separate
property upon married women do not by mere implication
relieve husbands from general liability for the torts of
wives.” It has been held in some states under a liberal
construction of these acts, however, and without any
provision directly to that effect, that the wife is alone
responsible for torts committed by her and her agents in
the management and control of her statutory separate
estate.? In fact some cases go further and hold that
statutes giving the wife substantially the property rights
of a feme sole and a right to her own earnings, exonerate
the husband from liability for all torts not committed by
his aid, advice, procurement or consent, pursuant to the
maxim, cessante ratione, cassat ipsa lex.‘ In several
states are statutes expressly limiting the liability of the
husband for the torts of the wife to such as she commits
by his aid or procurement, coercion or consent. In some

1 Brown v. Kemper, 27 Md. 667, 673, and cases cited; 2 Freem. on
Executions, 1453, note 8; Haygood ». Harris, 10 Ala. 291.

?Seroka v. Kattenberg, L. R. 17 Q. B. D. 177; Morgan v. Kennedy,
62 Minn. 348, 54 Am. St. R. 647, 30 L. R. A. 521; Nichols v. Nichols,
147 Mo. 387; Cohen »v. Porter, 66 Ind. 196; McQueen v. Fulgham, 27
Tex. 463; Ferguson ». Brooks, 67 Me. 251. See cases cited in 131 Am.
St. R. 155. :

3 Cohen v. Porter, supra; Rowe v. Smith, 45 N. Y. 130, 6 Am. R. 52;
Baum v. Mullen, 47 N. Y. 577; Quilty v. Beattie, 185 N. Y. 201, 209,
17 L. R. A. 521, and eases cited. See, however, Flesh v. Lindsay, 115
Mo. 1, 37 Am. St. R. 374; Simmons». Brown, 5 R. I. 299, 73 Am. D.
66; Graham ». Tucker, 56 Fla. 307, 131 Am. St. R. 124, 130, note.

‘Schuler v. Henry, 42 Col. 367, 14 L. R. A. (N. 8.) 1009; Cudmer
v. Wilson, 18 Utah, 147, 57 Am. St. R. 713; Martin v. Robson, 665 Til.
129, 16 Am. R. 578; Norris v. Corkill, 32 Kan. 409, 49 Am. R. 489;
Harris v. Webster, 58 N. H. 481; Lane ». Bryant, 100 Ky. 138, 36
L. R. A. 709.

9
130 TORTS TO HUSBAND AND WIFE

of them he must be joined as a defendant as at common
law, but execution, where the tort is purely hers, must be
confined to her separate property.'

LIABILITY OF THIRD PERSONS FOR TORTS AGAINST HUSBAND
AND WIFE

136. In General—Torts Against Husband.

Under ordinary circumstances there is little of wrong,
actionable or otherwise, that can injure one spouse with-
out injuring the other. Owing to the common-law theory
of coverture, however, there is no civil injury to the hus-
band of any sort that gives the wife a cause of action,
either alone or jointly with him, independent of statute.
The only cause of action, at least during marriage, is in
the husband alone.’

137. Actions for Injuries to the Wife—In General.

For torts to the wife before marriage, husband and wife
must sue jointly, and the recovery accrues to the benefit
of the husband during coverture. An injury to the person
or character of the wife during marriage, on the other
hand, ordinarily gives rise to two causes of action.

1. An action by the husband alone for the expense of
care and cure due to any illness of the wife which is the
proximate result of the defendant’s wrong, and for the
loss of her society, services and earnings.

2. An action by the spouses jointly, or under statutes
by the wife alone, for such other items of damage as would
accrue in any personal injury case, including mental and
physical pain and suffering, past and prospective.’ These

1 See Stat. of Wis., 1898, sec. 2969; Marcus v. Rovinsky, 95 Me: 106.

2 See post, sec. 143.

* Guy v. Livsey, 2 Cro. Jac. 501; Smith v. Smith, 98 Tenn. 101, 60
Am. St. R. 838; Johnson ». Disbrow, 47 Mich. 59; Laughlin v. Eaton,
54 Me. 156; Smith v. St. Joseph, 55 Mo. 456, 17 Am. R. 660. For
analogous rules where a child is injured, see post, sec. 510. See also
Skoglund v. Minneapolis St. Ry. Co., 45 Minn. 330, 11 L, R. A. 222,
22 Am. St. R. 738.
TORTS [TO HUSBAND AND WIFE 131

two actions are strictly separate, in the absence of statute,!
and will be separately considered in their order.

138. Same—Husband’s Sole Action.

The damages recoverable in the husband’s sole action
for torts to the wife belong exclusively to him. If he dies
before recovering judgment the action abates at common
law.? If the wife dies before judgment, the husband
recovers only for the expenses of care and treatment and
for such loss of her society and services as accrued before
death,’ unless statutes permit recovery for the death it-
self, a matter elsewhere discussed. The damages in
the action by the husband for injuries to the person or
character of the wife are quite strictly compensatory,
and are confined to the value of the lost services and earn-

‘ings, the comfort of the wife’s conjugal society and assist-
ance, so far as the injury deprives him of them, and the
expenses of her care and cure, past and prospective.> In
this respect they differ from damages allowed for injuries
strictly to the consortium, as by the debauchment or
enticement of the wife, or the alienation of her affections
from the husband.® If the husband dies after judgment,
it belongs to his personal representatives and not to the
wife.

139. Same—The Joint Action.

In the joint action by husband and wife for injury to
the wife, or in her separate action where statutes permit
it, the recovery is for all damages that can be properly
assessed in an action for an injury of the kind complained

1§mith v. City of St. Joseph, supra.

2 See Long v. Morrison, 14 Ind. 595, 77 Am. D. 72.

? Long v. Morrison, supra; Nixon v. Ludland, 50 Ill. App. 2738.

4See post, sec. 153.

5 Lindsey v. Danville, 46 Vt. 144; Pennsylvania R. Co. ». Goodman,
62 Pa. 329, 339; Selleck v. Janesville, 104 Wis. 570, 76 Am. St. R. 892,
47 L. R. A. 691. See also note to Carey v. Berkshire R. R. Co., 48
Am. D. 620, 621. , ,

6 Sée post; sec. 150.
132 TORTS TO HUSBAND AND WIFE

of, exclusive of those recoverable in an action by the hus-
band alone.! Exemplary damages may therefore be
recovered if the circumstances warrant them and they are
permitted where the action is brought. In any event,
they include compensation for the physical and mental
pain and suffering of the wife to the same extent as if
she were sole. During coverture, however, the right to
recover for injury to the person or character of the wife,
beyond those items of damage which are recoverable in
the sole action by the husband, are in the nature of a chose
in action due the wife, and rights of action for such injuries
inflicted upon her before marriage are of the same charac-
ter. Though the wife must join with the husband in an
action for their recovery, on the ground that she is the
meritorious cause of action and the right of action belongs
solely to her if the husband dies or there is a divorce before
judgment for them,’ still the proceeds of a recovery during
coverture belong exclusively to him at common law,?
and if she dies or there is a divorce after judgment, he is
entitled to enforce it, but if he dies it would seem that
she and not his personel representatives would be entitled
to enforce it. Upon the death of the wife before judgment
the action abates, upon the familiar principle of the com-
mon law that actions for personal torts die with the per-
son.> The husband may compromise or release the cause
of action during coverture, and this is a complete defense
to a joint action by the spouses or an action by the wife
after widowhood or divorce.®

13 Suth. on Dam. (2d Ed.), sec. 1252; Ohio & M. Ry. Co. ». Crosby,
107 Ind. 32; Johnson ». Baltimore, ete., R. Co., 6 Mackey (D.C.),
232.

? Schouler’s Hus. & W., sec. 142.

3 Shaddock v. Clifton, 22 Wis. 114, 94 Am. D. 588; Smith v. Smith,
98 Tenn. 101, 60 Am. St. R. 838; Duffies v. Duffies, 76 Wis. 374, 20
Am. St. R. 79, 8 L. R. A. 420.

42 Wms. Exrs. (7th Am. Ed.) 66.

Stroop v. Swartz, 12 Serg. & R. (Pa.) 76; Meese v. Fond du Lac, 48
Wis. 323.

* Beach v. Beach, 2 Hill (N. Y.), 260, 38 Am. D. 584; Shaddock ».
TORTS TO HUSBAND AND WIFE 133

140. Statutory Changes.

Generally in this country the married women’s acts
have conferred upon the wife a right to the damages
formerly recoverable in the joint action for injuries to
her person or character, and in many states she may sue
for them alone,! nor can the husband bar her by his release.
In all states, however, the husband retains his right to
recover for loss of the wife’s society and her services and
earnings, so far as he is legally entitled to them, and the
cost of care and cure. These damages may be secured
to him in a separate action, or in some states in a joint
action wherein the damages of both spouses are assessed.*
As a rule the husband alone is entitled to recover for dim-
inution of his wife’s capacity to labor and earn, unless
she is carrying on a separate business or is engaged in a
separate employment the profits of which are secured
to her by statute or otherwise.‘

141. Torts to Separate Property.

At common law the wife had no power to sue during
coverture for torts to her property, for it, or the right to
its possession and enjoyment, was vested in the husband.*®
In equity, however, and as to her equitable separate
estate, the wife had all the remedies of a feme sole; and
while she could not sue in trespass or trover or otherwise
at law without the intervention of her trustee, she could

Clifton, 22 Wis. 114, 94 Am. D. 588; Ballard ». Russell, 33 Me. 196,
54 Am. D. 620.

1 Shanahan »v. City of Madison, 57 Wis. 276. See on the question
of damages, Harmon ». Old Colony Ry., 165 Mass. 100, 52 Am. St. R.
499, 30 L. R. A. 658.

? Menherther v. Hatton, 42 Ia. 288, 20 Am. R. 618; Kelley v. N. Y.,
etc., R. Co., 168 Mass. 308, 60 Am. St. R. 397, 38 L. R. A. 631.

8See, however, Bickner v. Kopmeier, 133 Wis. 582, construing
statutes. See post, sec. 268, as to rule under the community system.

‘4 Blaechinska ». Howard Mission, 130 N. Y. 497, 15 L. R. A. 215;
Riley ». Ledtke, 49 Neb. 139; Harmon ». Old Colony R. R. Co., 165
Mass. 100, 52 Am. St. R. 499, 30 L. R. A. 658; Atchison, etc., R. Co. v.
Dickey, 1 Kan. App. 770.

5 See post, sec. 293.
134 TORTS TO HUSBAND AND WIFE

have an injunction to stay waste, even as against her
husband or her trustee, and could have relief through a
suit for an accounting.! The statutes, however, have
quite generally given her the remedies of a single woman
with respect to the separate property which they secure
to her, so that she may bring trespass, trover or replevin,
or the other actions of the common law. Whether her
husband must join her in any case depends upon the
terms of particular statutes.

142. Injuries Peculiarly to the Consortium—In Gen-
eral.

The right and interest which the husband has in the
person and affections of his wife, and her conjugal society,
fellowship, codperation and aid, and her somewhat im-
perfectly corresponding right, is sometimes designated
by the word consortium. It is something above and
beyond the mere right to services and earnings though
it includes them, and implies that there shall be no undue
or wrongful interference with the personal relations of
the parties. The wrongs about to be discussed as involv-
ing injuries peculiarly to the consortium are therefore
to be distinguished from those that result in mere loss of
the wife’s services and the expenses of her care and cure,
and for which the damages are purely compensatory;
for though no loss of service or illness results, the husband
may recover, and the damages will embrace compensation
for loss of the affections and society of the wife, the defile-
ment of the marriage bed, in case of her debauchment,
and for such mental suffering, including feelings of morti-
fication and disgrace, as the particular injury or injuries
naturally involve. Indeed injuries to the consortium are
a frequent basis for exemplary or punitory damages, as
will shortly appear.’

Injuries to the consortium are embraced under the
following heads, each of which is descriptive of a cause of

12 Story’s Eq. 1380; Ayer v. Ayer, 16 Pick. (Mass.) 327.
2 See post, sec. 150.
TORTS TO HUSBAND AND WIFE 135

action by itself, though in practice two or more of them
commonly coexist and are joined in the same suit.

1. Seduction or debauchment of a spouse or criminal
conversation, as tt ts called.

2. Alienation of the affections of one spouse from the other.

3. The abduction, enticement, or harboring of one spouse
away from the other.

143. Same—How Far Spouses on an Equal Footing.

A question much debated by the courts, particularly of
late, is how far the wife is on a parity with the husband
as to the right to sue for these wrongs to the consortium.
At common law the right of the wife to recover was gen-
erally denied upon the technical ground that if she had
judgment it would simply inure to the benefit of the
husband, for the damages would belong to him in spite
of his active participation in the wrong, and to permit an
action by her would enable him in many cases to profit
by his own iniquity, and would be contrary, so some courts
declare, to sound public policy.2, There seems to be but
one case squarely in favor of the wife’s right to sue during
coverture at common law for the loss of the husband’s
consortium,® though a few courts hold that at common
law her cause of action is in abeyance during coverture,
but becomes available upon widowhood or absolute di-
vorce.*

144. Same—Under Statutes.

Under statutes enlarging the rights of married women,
the decisions on this subject are in conflict. This is due
in part to differences in the statutory terms, partly to the

1 Lonstorf v. Lonstorf, 118 Wis. 159, affirming Duffies ». Duffies, 76
Wis. 374, 20 Am. St. R. 79, 8 L. R. A. 420.

2 Doe v. Roe, 82 Me. 503, 8 L. R. A. 833, 17 Am. St. R. 499. See
post, sec. 145, note 5.

’ Foot v. Card, 58 Conn. 1, 6 L. R. A. 829, 18 Am. St. R. 258.

‘Smith v. Smith, 98 Tenn. 101, 60 Am. St. R. 838. As to her remedy
by habeas corpus where the husband is unlawfully detained from her,
see post, sec. 149.
136 HORTS TO HUSBAND AND WIFE

fact that some courts construe such statutes strictly and
others liberally, and partly to differing views of the publie
policy involved. Thus, it has been held that no action lies
for alienation of the husband’s affections under a statute
empowering a wife to sue for injuries to her person or
character,! and under a statute even more liberal, another
court held the same way on grounds of public policy.’
But by the weight of authority under similar statutes,
the right of the wife to sue for the loss of consortium is
generally upheld, particularly where she is given a right
to sue for injuries to her personal or property rights, as
distinguished from her rights of person merely, though such
distinctions are not always observed.*

145. Seduction of Spouse—Criminal Conversation.

The right of sexual commerce between the spouses is
exclusive, and one who debauches the wife without his
consent is liable to the husband in an action of trespass
known as an action for criminal conversation, frequently
expressed by the abbreviation, crim. con.

The right of the wife deprived of her husband’s con-
sortium has been generally considered in the preceding
section. But it has been held, even where her right to sue
for such loss might be conceded,‘ that she has no action

1 Duffies ». Duffies, 76 Wis. 374, 8 L. R. A. 420, 20 Am. St. R. 79;
Lonstorf ». Lonstorf, 118 Wis. 159. The rule has been changed by
statute in Wis., Chap. 17, Laws of 1905.

* Morgan v. Martin, 92 Me. 190; Doe v. Roe, 82 Me. 503, 8 L. R. A.
833, 17 Am. St. R. 499. See and compare post, next section.

> Lynch v. Knight, 9 H. L. Cas. 77; Warren v. Warren, 89 Mich.
123, 14 L. R. A. 545; Price v. Price, 91 Ia. 693, 29 L. R. A. 150, 51 Am.
St. R. 360; Gernerd v. Gernerd, 185 Pa. 233, 40 L. R. A. 549, 64 Am.
St. R. 646; Wolf v. Frank, 92 Md. 188, 52 L. R. A. 102; Holmes 2.
Holmes, 133 Ind. 386; Bennett v. Bennett, 116 N. Y. 584, 6 L. R. A.
553, and note; Clow v. Chapman, 125 Mo. 101, 46 Am. St. R. 468, 26
L. R. A. 412; Betser ». Betser, 186 Ill. 537, 78 Am. St. R. 303, 52 L. R. A.
630; Humphrey v. Pope, 122 Cal. 253; Haynes ». Nowlin, 129 Ind. 581,
28 Am. St. R. 213, 14 L. R. A. 787; Westlake v. Westlake, 34 Ohio St.
621, 32 Am. R. 397.

4 Lockwood ». Lockwood, 67 Minn. 476.

aloes at
AE
a ARE rae

eames ee
TORTS TO HUSBAND AND WIFE 137

against one who has merely debauched the husband or
had adulterous intercourse with him, without inducing him
to desert her or withhold his support, upon the ground
that the mere infidelity of the husband subjects the wife
to no danger of illegitimate offspring and casts no sus-
picion upon the parentage of those already born, and that
in the present state of public opinion she suffers no such
shame and disgrace as should counterbalance the public
and private scandal and inconvenience which such ac-
tions would involve.!. However we may regard this view
of the law, simple debauchment may be practically re-
garded as solely a wrong to the husband, consisting in the
defilement of his marriage bed. The fact of the wife’s
consent or want of it is therefore immaterial so far as the
right of action itself is concerned. If she readily consented,
or was really the seducer, the fact may usually be shown
in mitigation of damages,” but if she was forced it would
probably be matter of aggravation.®

146. Same—Defenses.

The husband’s consent to the defilement of his wife is
always a bar to his action, and his consent may even be
implied, as where he permits her to live as a prostitute.+
In fact the law here runs practically parallel to that of
connivance in relation to divorce.> The mere negligence
of the husband, however, is no bar if he was without such

1 Churchill ». Lewis, 17 Abb. N. Cas. 226; Kroessin v. Keller, 60
Minn. 373, 51 Am. St. R. 533, 27 L. R. A. 685. But see Seaver ».
Adams, 66 N. H. 142, 49 Am. St. R. 597; Haynes v. Nowlin, 129 Ind.
581, 28 Am. St. R. 213, 14 L. R. A. 787.

2 Bedan v. Turney, 99 Cal. 649; Bigaouette v. Paulet, 134 Mass. 123,
45 Am. R. 307; Egbert v. Greenwalt, 44 Mich. 245, 38 Am. Rep. 260.
See post, sec. 150.

?In either case the original form of the action was trespass vie et
armis for the reason that the law will not allow the wife to consent
because of the interest her husband has in her. Regant v. Gallisard,
7 Mod. 78; 3 Bl. Com. 139.

* Cook v. Wood, 30 Ga. 891, 76 Am. D. 677.

® See post, sec. 397. And see Bunnell v. Greathead, 49 Barb. (N. Y.)
106.
138 TORTS TO HUSBAND AND WIFE

suspicion of the wife’s adulterous proclivities that he may
be said virtually to have connived at her downfall.!

Even though the husband suspects the wife, he is not
bound to restrain or otherwise police her. He may shadow
her libidinous course and permit her to-make use of her
opportunities for wrongdoing, provided he does not create
temptation or throw it in her way.’

Differing from divorce, it is no defense that the husband
has himself been guilty of infidelity, nor does it matter
that he has forgiven his wife.* In fact there is little or
nothing save express or implied consent of the husband
that will defeat his action for criminal conversation, though
a number of other circumstances that have sometimes been
urged in bar may mitigate his damages.‘

147. Same—tThe Action.

The action for criminal conversation is strictly for an
injury to the consortium and does not proceed per quod
servitum amisit even in theory, as is the case with actions
for seduction of a servant or a child. It is technically
an action of trespass vi et armis. Hence, actual or con-
structive loss of the wife’s services in the ordinary sense
need not be shown as a basis for recovery.®

148. Alienating Affections of Spouse—Abducting, En-
ticing or Harboring.
In practice, counts for alienation of the affections or

1Stumm v. Hummell, 39 Ia. 478.

? Puth ». Zumbleman, 99 Ia. 641; Lee ». Hammond, 114 Wis. 550;
Woldson »v. Larson, 164 Fed. 548, 552.

+ Rea v. Tucker, 51 Ill. 110, 99 Am. D. 539; Stumm ». Hummell, 39
Ta. 478.

4 See post, sec. 150.

5 Michael v. Dunkle, 84 Ind. 544, 43 Am. R. 100; Bigaouette ». Paulet,
134 Mass. 123, 45 Am. R. 307; Yunt ». Hartfrunft, 41 Ill. 9; Long ».
Booe, 106 Ala. 570. The rule seems to be otherwise in England, and
no action lies for the debauchment of the wife where the wrong is done
during separation under an agreement to permanently live apart.
Weedon ». Trunbrell, 5 T. R. 357. See also Fry v.. Derstler, 2 Yeates
(Pa.), 278.
TORTS TO HUSBAND AND WIFE 139

for debauchment, or both, are often joined with counts
for abducting, enticing or haboring a spouse. These
‘latter are torts in themselves, independent of debauchment
or alienation of the affections,’ as alienation of affections
is a wrong independent of enticement, debauchment or
harboring.? There must, however, be some positive wrong
in this connection, and one to whom the wife voluntarily
or spontaneously transfers her affections, without the use
of arts, solicitations or persuasion, is not liable for alienat-
ing them. So, as we have seen, one who receives a wife
who has been forced to leave her husband on account of
his misconduct is not only justified, but is entitled to
recover against the husband for necessaries supplied her
upon his credit, unless the husband supplies her needs.’
Even though the wife is in the wrong, a third person who,
from good motives, relieves her mere temporary neces-
sities, is not liable for harboring her. But if he goes
further and encourages her to remain away from her
husband against his known wishes, even perhaps by fur-
nishing her permanent shelter and support, he may be
liable to the husband for harboring.’ In other words,
there must usually be something in the nature of malice
or illegal or improper motive. The conduct of near rel-
atives, however, and particularly of parents, is always
charitably construed in such cases. The spirit of the law
in this regard is clearly and beautifully expressed by
Chancellor Kent, who says, ‘‘A father’s house is always
open to his children. Whether they be married or unmar-

1 Winsmore v. Greenbank, Willes, 577; Reinhart ». Bills, 82 Mo. 534,
52 Am. R. 385; Hoard v. Peck, 56 Barb. (N. Y.) 202.

2 Heermance v. James, 47 Barb. (N. Y.) 120, 32 How. Pr. 142, 52
Am. R. 388; Reinhart ». Bills, supra.

3 See ante, sec. 122; Almy ». Wilcox, 110 Mass. 443, where recovery
for necessaries was denied because the plaintiff’s motive in harboring
a wife was to facilitate adulterous intercourse with her, though she
left her husband on account of his fault.

4See Turner v. Estes, 3 Mass. 317; Powell v. Benthall, 186 N. Car.
145. Compare 3 BI. Com. 145.

5 See Johnson v. Allen, 100 N. Car. 131, 140.
140 TORTS TO HUSBAND AND WIFE

ried it is still to them a refuge from evil, and a consolation
in distress. Natural affection establishes and consecrates
this asylum.’’! But while parents and other near rela-
tives, or even strangers who act from proper motives,
are permitted to counsel and advise a separation, they
must not act from improper motiyes, nor restrain a spouse
who would otherwise return to marital cohabitation.’
Proper as distinguished from improper motives are hard
to define. Probably nothing, short of honest solicitude
for the welfare of the absent spouse would be regarded as
a proper motive in any case.® In the case of parents and
other near relatives, and probably of guardians, proper
motives are presumed, and the burden of showing malice
is upon the plaintiff.‘ Strangers, however, must usually
show good cause for interference and good faith in inter-
fering.®

149. Miscellaneous Remedies for Wrongs to the Con-
sortium.

Where the wife is unlawfully detained against her will,
the husband may sue out a writ of habeas corpus, not for
the purpose of coercing her to return to cohabitation, but

1 Hutcheson v. Peck, 5 Johns. (N. Y.) 196, 210; Fratlini ». Castlini,
66 Vt. 373, also reported in 44 Am. St. R. 850, note 4; Bennett v.
Smith, 21 Barb. (N. Y.) 429.

? Payne v. Williams, 4 Baxt. (Tenn.) 285; Reed v. Reed, 6 Ind. App.
317, 51 Am. St. R. 310; Westlake v. Westlake, 34 Ohio, 621, 32 Am. R.
397; Glass ». Bennett, 89 Tenn. 478; Powell v. Banthnall, 136 N. Car.
145; Trumbull ». Trumbull, 71 Neb. 186; Tasker v. Stanley, 153 Mass.
148, 10 L. R. A. 468; Heisler v. Heisler, 127 N. W. 823 (Ia., 1910).

* Holz v. Dick, 42 Ohio St. 23, 51 Am. R. 791; Huling v. Huling, 32
Ill. App. 519, and eases cited; Boland ». Stanley, 88 Ark. 562, 129 Am.
St. R. 114; Williams v. Williams, 20 Colo. 51.

‘Trumbull ». Trumbull, 71 Neb. 186; Boland ». Stanley, supra;
Jones v. Monson, 137 Wis. 478, 129 Am. St. R. 1082; Leavell ». Leavell,
114 Mo. 24.

6 Hartpence v. Rogers, 143 Mo. 623; Barnes v. Allen, 30 Barb. (N.
Y.) 663; Modisett v. McPike, 74 Mo. 636; Higham ». Vanosdol, 101
Ind. 160; Boland »v. Stanley, supra. But see Tasker 2. Stanley, 153
Mass. 148, 10 L. R. A. 468,
TORTS TO HUSBAND AND WIFE 141

for the purpose of obtaining her enlargement so that she
may return if she desires,! and there seems to be nothing
in the common law to prevent her exercising the same
right where her husband is similarly imprisoned or de-
tained.”

150. Damages for Wrongs to Consortium.

In actions for injuries strictly to the consortium, as in
harboring, abducting, debauching, or alienating the affec-
tions of a spouse, the liability is not dependent upon loss .
of services, as in cases of the seduction of a servant or
child,* though their loss may, of course, be shown as an
element of recovery.‘ The action, in other words, requires
no other basis than the loss of affections of the spouse, the
comfort of her society and aid, and, where a charge of
criminal conversation is involved, the defilement of the
plaintiff’s marriage bed. The damages in such cases,
therefore, are very largely within the sound discretion of
the jury, whose verdict will not be disturbed unless it is
the manifest result of passion, prejudice or corruption.®
All matters that may fairly be deemed to aggravate or
mitigate the injury may therefore be shown, including
the affection or want of it existing between the parties,®
the indifference of the plaintiff,’ his own unfaithfulness to

1 Reg. v. Leggatt, 18 Q. B. 781, 83 E. C. L. 781. Compare ante,
secs. 114, 115.

2 Ashby v. White, 14 How. St. Tr. 814; Reg. ». Leggatt, supra.

3 Bigaouette v. Paulet, 134 Mass. 123, 45 Am. R. 307; Yunt v. Hart-
frunft, 41 Ill. 9; Long ». Booe, 106 Ala. 571.

4 Evans v. Evans, 68 L. J. Prob. 70; Yunt v. Hartfrunft, supra.

5 Yunt v. Hartfrunft, supra; Hartpence v. Rogers, 143 Mo. 623; Puth
v. Zumbleman, 99 Ia. 641; Speck v. Gray, 14 Wash. 589.

* Wolf v. Frank, 92 Md. 138, 52 L. R. A. 102; Prettyman v. William-
son, 1 Penn. (Del.) 224; Hadley ». Heywood, 121 Mass. 236; Palmer ».
Cook, 7 Gray (Mass.), 418. The mere fact that the plaintiff has
already lost the affections of his wife, however, does not usually go in
bar of an action against one who interferes by harboring, abducting,
enticing or debauching her. He has an exclusive right to her person
and services, at any rate, and a right to recover her affections if he can.

7Prettyman v. Williamson, supra; Stumm v. Hummel, 39 Ia. 483.
142 TORTS TO HUSBAND AND WIFE

his marriage vows,! the bad character of the wife, the fact
that she has been previously debauched by others,’ or
was herself the active party in bringing about the wrong.’
The pecuniary condition of the plaintiff and defendant,‘
and the defendant’s malice or wantonness in invading
the plaintiff’s rights may be shown.’ The fact that the
plaintiff has forgiven his erring wife and received her
back is said to go in aggravation, rather than in miti-
gation, of the damages.° Exemplary damages may be
awarded, and indeed are regarded as particularly ap-
propriate in actions for injuries to the consortium in
states where such damages are allowed, if malice was an
ingredient of the wrong or there was actual seduction of
the wife.’

161. Supplying Liquor or Drugs to Spouse—Civil Dam-
age Acts.

How far a person who has supplied intoxicating liquor
or drugs to one spouse to the detriment of the other is
civilly liable to the latter at common law is uncertain. It
has been held in at least one case, independent of statute,
however, that one who, in the face of a husband’s warning,
sold intoxicating drugs to the wife whereby she contracted

1 Wolf v. Frank, supra; Cross v. Grant, 62 N. H. 675, 13 Am. St. R.
607; Shattuck ». Hammond, 46 Vt. 466, 14 Am. R. 631; Bennett ».
Smith, 21 Barb. (N. Y.) 439.

2 Torre v. Summers, 2 Nott & McC. 267, 10 Am. D. 597; Norton ».
Warner, 9 Conn. 172; Harrison v. Price, 22 Ind. 165; Stumm ». Hum-
mel, supra.

3 Hoggins v. Coad, 58 Ill. App. 58; Elsom v. Fawcett, 2 Esp. 562.

4 See post, sec. 522; Johnson v. Allen, 100 N. Car. 131, 189.

5 Johnson »v. Allen, supra; Johnson v. Disbrow, 47 Mich. 59; Waldron
». Waldron, 45 Fed. 314; Hartpence v. Rogers, 143 Mo. 623.

6See Stumm v. Hummel, 39 Ia. 483; Smith ». Meyers, 52 Neb.
70.

7 Waldron v. Waldron, supra; Lundblom ». Sontailie, 10 N. Dak.
140; Prettyman v. Williamson, 1 Penn. (Del.) 224; Yunt v. Hart-
frunft, 41 Ill. 16; Hartpence v. Rogers, 1483 Mo, 623; Woldson »v.
Larson, 164 Fed. 548; Johnson »v. Allen, 100 N. Car. 131, 138, and cases
cited.
TORTS TO HUSBAND AND WIFE 143

a habit involving a loss of services and consortium, was
civilly liable to the husband.!

Statutes in many states give to those injured by the in-
toxication of another a remedy by action for civil damages
against the one who supplied the liquor, or against his
bondsmen. These statutes are commonly known as civil
damage acts. Their provisions are quite various. Some
confine the right of action to cases where the liquor is ille-
gally sold; others apply to all sales or even gifts. Some
statutes require a preliminary notice not to sell, and that
the one whose intoxication produced the injury be an ha-
bitual drunkard. The statutes also vary as to who may
sue, sometimes conferring the right of action upon strang-
ers injured by the acts of the drunkard or drug victim,
but more often confining it to kinsmen, and still oftener
to dependants.

152. Same—Constitutionality and Construction.

While civil damage acts are generally conceded to be con-
stitutional, they have sometimes been strictly construed
either on the ground that they are penal,’ or because they
are in derogation of the common law. By the weight of
opinion, however, these acts as they exist in most states
are remedial, and should be fairly construed according to
their plain intent and meaning, in view of the evils they
are intended to correct, and the remedy they are designed
to afford through a civil suit for damages by those injured
by a tort created by statute.*

153. Action for Death of Spouse.

At common law no action lay for the death of a human
being, though it was due to such willful wrong or negli-
gence as would have entitled the party killed, had he

1 Holleman v. Hayward, 119 N. Car. 150 (1896), 56 Am. St. R. 672,
34 L. R. A. 803; Hoard v. Peck, 56 Barb. (N. Y.) 202.

? Sackett v. Ruder, 152 Mass. 397,9 L. R. A. 391.

8See Berthalf v. O’Reilly, 74 N. Y. 509, 30 Am. R. 323; Eddy ».
Courtright, 91 Mich. 264, 267; Schroeder ». Crawford, 94 Ill. 357, 34
Am. R. 236; Suth. Statutory Constr., secs. 373 et seq.
144 TORTS TO HUSBAND AND WIFE

survived, to a recovery against the wrongdoer.! Various
reasons have been given for this rule, among which are
the reluctance of the law to put a price upon a human life,
and the practical difficulty of valuing it. It finds its pro-
totype and possibly its origin in the common-law maxim,
‘“‘actio personalis moritur cum persona.” ? Under this
maxim, as we have seen, the joint action of husband and
wife for personal injuries to the wife abates upon her death,
though the husband’s action for loss of services and con-
sortium during her illness and the expenses incident thereto
survives.®

This rule as to death by wrongful act has been changed
in England by a statute known as Lord Campbell’s Act,*
and similar statutes have been passed in all the states.
In England, and probably under all of the state statutes,
however, no recovery can be had unless the deceased
could himself have recovered damages had he survived
his injuries.» While the statutes are not uniform, they
quite generally provide that a wife may recover for the
death of a husband, and almost as frequently that a hus-
band may recover for the death of a wife, either through
an action by the surviving spouse direct, or else through
his or her personal representatives. Children, at least if
under age, usually have a share in the recovery, and the
parent is quite generally entitled to damages for the death
of a minor child, and sometimes for the death of an adult
child.®

154. Same—The Damages.
Usually the statutes fix a maximum sum beyond which
no recovery can be had for death by wrongful act. Within

1 Baker v. Bolton, 1 Camp. 493.

* See on this point Hyatt ». Adams, 16 Mich. 180; Grosso v. Dela-
ware, ete., Ry. Co., 50 N. J. L. 317; Gulf, etc., Ry. Co. ». Beall, 91
Tex. 310, 66 Am. St. R. 892, 41 L. R. A. 807.

3 See ante, sec. 138.

‘Stat. 9 & 10 Vict., Chap. 93.

§ Cooley on Torts (2d Ed.), 309.

6 See post, sec. 515,

ah se
TORTS TO HUSBAND AND WIFE 145

this limit the damages are quite generally based upon the
loss of pecuniary benefit or advantage reasonably likely
to accrue to the plaintiffs or beneficiaries within the period
during which the deceased might have been expected to
live. That this must be to some extent a matter of con-
jecture does not prevent a recovery. Mental suffering,
however, cannot be considered.!

155. Same—Conflict of Laws..

Whether a recovery can be had in the courts of one
state for wrongful act in another causing death, is a ques-
tion upon which the courts do not agree. By the prevail-
ing rule it seems that such a recovery may be had under
the law of the state where the injury was inflicted, pro-
vided the statutes of the state where the action is brought
have adopted a similar policy.2, The amount of the re-
covery usually depends upon the law of the former ‘place.

1 See generally on the subject of damages for death by wrongful act,
Sedgwick’s Elem. Dam. (2d Ed.) 176 et seq.; Tiff. Death by Wrongf.
Act, 177.

2See Leonard v. Columbia, etc., Co., 84 N. Y. 48, 38 Am. R. 491;
Dennich v. R. Co., 108 U. 8. 11; Morris v. Chicago, ete., Ry. Co., 65
la. 727, 54 Am. R. 39; Knight ». West Jersey R. Co., 108 Pa. 250, 56
Am. R. 200.

10
CHAPTER XII

MARRIAGE AS AFFECTING CRIMINAL LIABILITY

166. In General—Particular Crimes.

Marriage is often a pivotal fact in determining the
criminal liability of the husband and wife or even of
third persons. Thus, in the statutory crime of adultery
at least one of the parties to the intercourse must have
been married to a third person. In bigamy or polygamy
a subsisting prior marriage is always an essential of guilt,
and marriage is, of course, a necessary ingredient of the
crime of abandoning or not supporting the wife. A hus-
band who forces his wife is not guilty of a rape upon her,
though he may be criminally liable for aiding another to
ravish her.1 The duty of the wife to succor and harbor
the husband prevents her from being guilty as his acces-
sory after the fact.2, The husband, however, is deemed not
within the rule, and has been held guilty for harboring
his wife,? and either spouse may be accessory before the
fact to the crimes of the other. Neither spouse, however,
could be guilty of larceny from the other for reasons based
upon the theories and incidents of coverture,‘ and sepa-
rate property acts have been held not to abrogate this
rule.’ One who aids or abets the wife in taking the goods
of her husband is not guilty of larceny at common law.

1 See ante, sec. 114.

22 Hawk. P. C. 29; Reg. ». Good, 1 C. & K. 185.

* People v. Dunn, 7 N. Y. Cr. Rep. 187. Otherwise in some states
by statutes. State », Reed, 85 Mo. 194.

‘State v. Banks, 48 Ind. 197.

' Thomas ». Thomas, 51 Ill. 162; Overton v. State, 43 Tex. 616.
Contra, Hunt v. State, 72 Ark, 241, 65 L. R. A. 71, 105 Am. St. R. 34:

,

Beasly ». State, 138 Ind. 552, 46 Am. St. R. 418. As to arson, see
Snyder v. People, 26 Mich. 106, 12 Am. R. 302, holding it not arson

146
CRIMES BY AND AGAINST SPOUSES 147

But if the wife becomes an adulteress and elopes, or elopes
for the purpose of adultery, her paramour who aids her
in the taking of her husband’s goods is guilty of larceny,'
save where the taking is confined to her personal apparel.”
Whether the wife herself is guilty of larceny in taking
her husband’s goods under these circumstances seems
uncertain. By the weight of authority she is not.®

Owing to the theory of their legal unity, husband and
wife cannot, at common law, be held guilty where the
gist of the offense is conspiracy, unless they confederate
with a third person. But for illegal acts done in pursu-
ance of their agreement they may be liable, subject to
the presumptions stated in the next section.‘

The marital relation, as we have seen, does not justify
assaults by one spouse upon the other,® and it would seem
that it should not constitute a defense to a prosecution
for what would be deemed criminal defamation as between
strangers. °

for the husband to burn the wife’s house which both occupy. This
decision was approved in Kopcyznski v. State, 137 Wis. 358, where it
was further held that where the husband is living apart from the wife,
though the title to her dwelling which he burns is in him, he was guilty
of arson. The law is changed by Chap. 67, Laws of Wis., 1909, making
it arson for either spouse to burn the common home. See also State
v. Shaw, 79 Kan. 396, 21 L. R. A. (N.8.) 27, and note.

1 Rex ». Clark, 1 Moo. C. C. 376; Reg. v. Tollett, C. & M. 112, 41
E. C. L. 67; Reg. v. Featherstone, 6 Cox’s C. C. 376; People v. Schuyler,
6 Cow. (N. Y.) 572.

2 Reg. v. Fitch, D. & B. C. C. 187, 7 Cox’s C. C. 269; State v. Banks,
48 Ind. 197. Contra, Reg. v. Tollett, supra.

5 Reg. v. Kenney, 2 Q. B. D. 307, 13 Cox’s C. C. 397; Reg. v. Glassie,
7 Cox’s C. C. 1. Compare State v. Banks, 48 Ind. 197; Reg. v. Feather-
stone, 6 Cox’s C. C. 376.

‘Jones v. Monson, 137 Wis. 478, 129 Am. St. R. 1082, and au-
thorities cited.

5 See ante, sec. 115.

6 There seems to be little authority on this point. Under a statute
making ‘any person liable who should impute unchastity to an inno-
cent woman,” it was held that the husband could not be convicted
where the words were spoken of his wife. State ». Fulton (N. Car.,
1909). Contra, Slayton v. State, 46 Tex, Cr. 205, 108 Am. St. R. 988.
148 CRIMES BY AND AGAINST SPOUSES

167. Same—Presumption and Effect of Husband’s
Constraint Where Wife Is Actor.

It is stated as a general rule that where the wife, in the
presence of the husband, commits any felony, save murder
or treason or perhaps some other heinous offense, it is
presumed that she acted under his constraint, and she is
excused. But this presumption is only prima facie and
is hence rebuttable.! The presumption, however, is held
not to apply to an offense peculiarly feminine, such as
keeping a bawdyhouse,? nor, perhaps, does it apply to
perjury committed in open court, though the husband
was present.’ It is absolutely essential to the presumed
innocence of the wife, however, that the husband shall
have been actually present or so near when the offense
was committed as to have been capable of influence and
control.‘ If he was not present, it does not excuse her
that he counseled or commanded the criminal act. Where
his coercion is presumed from his presence, however, it
follows that his responsibility for her acts must be like-
wise presumed. But this presumption is prima facie
only, and may be rebutted by showing that she was a
voluntary and independent actor.* If she committed the
offense out of his presence, he can only be held on the

1 State v. Ma Foo, 110 Mo. 8, 33 Am. St. R. 414, and authorities
cited in the opinion. State». Honston, 29 8. Car. 108; Com. v. Eagan,
103 Mass. 71; People v. Ryland, 97 N. Y. 126. See Miller v. State, 25
Wis. 384, as to whether the presumption applies to robbery. See
State v. Kelley, 74 Ia. 589, where the presumption of coercion was held
to apply to murder. Contra, Bibb v. State, 94 Ala. 31, 33 Am. St. R.
88, and note. See also Miller v. State, supra.

? Com. v. Hopkins, 133 Mass. 381, 48 Am. R. 527. Compare Com.
v. Wood, 97 Mass, 225.

*Com. ». Moore, 162 Mass. 441; Smith v. Meyers, 54 Neb. 1.

*Rex v. Knight, 1 C. & P. 116, 12 E. C. L. 78; Com. v. Roberts,
132 Mass. 267; Com. v. Munsey, 113 Mass. 287; Com. ». Feeney, 13
Allen (Mass.), 560; State v. Fertig, 98 Ia. 139.

*Com. v. Neal, 10 Mass. 152, 6 Am. D. 105; Seiler ». People, 77
N. Y. 418.

*Com. v. Eagan, 103 Mass. 71; Com. v. Pratt, 126 Mass. 462;
Rather v, State, 1 Port. (Ala.) 138,
CRIMES BY AND AGAINST SPOUSES 149

ground of her actual agency for him, or his cooperation,
counsel or command.’

1 See 1 Bish. New Cr. Law, sec. 362; Reg. v. Squire, 1 Russ. on Cr.
(9th Ed.) 678. That the husband may be liable in a qui tam action
for the unlawful acts of the wife, though he was absent and in no way
actually concerned, see Rather ». State, supra; Wayne County 2.
Keller, 20 How. Pr. (N. Y.) 280.
CHAPTER XIII

MARRIAGE AS AFFECTING TESTIMONIAL CAPACITY OF HUS-
BAND AND WIFE

158. In General—The Common-Law Rule.

It is the general rule of the common law that neither
spouse is a competent witness for or against the other in
any action or proceeding, civil or criminal, wherein the
other is actually a party in interest or would be concluded
or directly affected by a judgment.! So much of the rule
as excludes the spouses as witnesses for each other was
early based upon their common-law identity of person and
interest, and is probably an outgrowth or application of
the common-law rule that forbids a party in interest to
testify on his own behalf, for the bias that disqualifies him
or her may be presumed to extend to his or her husband
or wife. So much of the rule as excludes a spouse from tes-
tifying against the other has been likewise referred to the
matrimonial unity and identity of interests.2. In modern
times, however, it has been grounded most frequently upon
the broader foundation of public policy, which deems it
better that there should be an occasional miscarriage of jus-
tice than that the peace and harmony of domestic life
should be endangered, or the confidence of the marriage re-
lation constrained or destroyed, or its privacy thrown open
to the public gaze. Furthermore, since the general aboli-
tion of the disqualification of interest, this public policy
seems to furnish the only shadow of reason for precluding
one spouse from testifying in favor of the other, since the
only danger that the admission of his or her testimony
would involve is that cross-examination might engender

1See 1 Greenl. on Ev., secs. 334, 335.

2 Coke on Litt. 60.

150
SPOUSES AS WITNESSES 151

the resentment of the litigant consort by calling out testi-
mony unfavorable to his or her cause.

The rule, however, does not extend to the other family
relations, and is confined strictly to cases where the tech-
nical relation of husband and wife exists. Not only are
those who may strictly be termed paramours competent
for or against one another, but the same is true of those
who, though not lawfully married, nevertheless in good
faith believed and intended themselves to be husband
and wife.?

If the parties are legally married, however, it makes no
difference that they intermarried for the purpose of render-
ing one of them incompetent as against the other, and thus
furthering a miscarriage of justice,’ and strict proof of
marriage is not in such cases required. Furthermore, it
has been held that the testimony of one spouse is not ad-
missible against the other, though the latter consents, for
the rule of incompetency rests upon reasons of public pol-
icy. There are authorities the other way, however, and
in some states the statute establishes the rule.®

159. Exceptions to Common-Law Rule—Crimes
Against Each Other.

As an exception to the general rule of the common law,
where one spouse is prosecuted criminally for acts involv-
ing violence against the other, the latter is not only a

1For a learned discussion of the history and rationale of the rule
see 1 Wigm. on Ev., secs. 600, 601, 3 Id. 2228. See also Stapleton »v.
Crofts, 18 Q. B. 367, Ad. & El. (N. 8.) 367; Kelley v. Proctor, 41 N. H.
139, 142; Pringle v. Pringle, 59 Pa. 281, 288; Knowles v. People, 15
Mich. 408; Com. v. Sapp, 90 Ky. 580, 29 Am. St. R, 405.

23 Wigm. on Ev., secs. 2330, 2331; Cole v. Cole, 153 Tl. 585.

? Moore v. State, 45 Tex. Cr. App. 234, 108 Am. St. R. 952, 67
L. R. A. 499, and notes. See also People ». Schoonmaker, 117 Mich.
190, 72 Am. St. R. 560.

4Schouler’s Hus. & W., sec. 82, note 4; Stein », Bowman, 13 Pet.
(U. S.) 209, 223; Davis ». Dinwoody, 4 T. R. 678. See also Gabrowski
v. State, 126 Wis. 447.

5 Pedley v. Wellesley, 3 Car. & P. 558; Parkhurst v. Bardill, 110
N. Y. 386, 6 Am. St. R. 384.
152 SPOUSES AS WITNESSES

competent, ‘but a compellable witness for the prosecution.’
This exception exists of necessity, and on grounds of
superior policy, for otherwise crimes of this kind, which
are commonly committed in the privacy of the home, would
often go unpunished.? It is quite strictly confined, how-
ever, to such crimes as concern the person and involve
serious injury or danger to the person or personal liberty.’
Whether the wife is competent against the husband with-
out the aid of statute in a criminal prosecution for aban-
donment and failure to support has been variously de-
cided, though in most states she is now competent by
statute.‘

160. Same—Actions for Lost Baggage—Necessaries.

As the wife commonly packs her husband’s baggage
when he goes upon a journey and is familiar with his
personal belongings, it is held by most courts, as an excep-
tion to the general rule rendering her incompetent on
his behalf, that she is a competent witness ex necessitate
to prove its contents where other proof is not available.®

1 Rex v. Castelhaven, 3 How. St. Tr. 402; State v. Pearce, 56 Minn.
226; Johnson v. State, 94 Ala. 53; Com. v. Sapp, 90 Ky. 580, 29 Am. St.
R. 405; Whipp ». State, 34 Ohio St. 87, 32 Am. R. 359; Turner ». State,
60 Miss. 351, 45 Am. R. 412. In homicide the dying declarations of
one spouse are admissible against the other. Woodcock’s Case, 1
Leach C. C. 500; State v. Pearce, supra.

2 Com. v. Sapp, supra.

’Com. v. Spink, 137 Pa. 255; State v. Huessey, 44 N. Car. 522;
Miller v. State, 37 Tex. Cr. 575. In at least two states bigamy, in-
cest and adultery are held within the rule making the injured spouse
a competent witness. State ». Chambers, 87 Ia. 1, 43 Am. St. R. 349;
State v. Russell, 90 Ia. 569, 28 L. R. A. 195; Hills v. State, 61 Neb. 589,
57 L. R. A, 155, interpreting sec. 331, Neb. Code of Civ. Prac. Contra,
Bassett v. U. S., 1387 U. 8. 496; Compton »v. State, 13 Tex. App. 271,
44 Am. R. 703; State ». Burt, 17 8. Dak. 7, 106 Am. St. R. 759, 62
L. R. A. 172.

‘Stebbins ». Anthony, 5 Col. 348; State ». Newberry, 43 Mo. 429;
Wis. Stat., sec. 4587c.

5 McGill v. Rowland, 3 Pa. 452, 45 Am. D. 654; Copeland ». Ill.
Cent. R. Co., 24 Ill. 382, 76 Am. D. 749, restricting testimony to con-
SPOUSES AS WITNESSES 153

And as the husband is usually familiar with the personal
belongings of the wife, his testimony as well as her own
is similarly admissible in a suit by her or by himself for
her baggage, lost or destroyed.1. But the husband and
wife are competent only as to what may be deemed per-
sonal baggage, and not as to other articles.2 Further-
more, where the husband fails to support the wife and the
action is by one who has furnished her necessaries upon
his credit, she is generally held to be a competent witness
for the plaintiff, either upon the theory of agency, as
explained in the next section, or from the necessities of
the case.?

161. Same—Where One Spouse Is Agent for the
Other.

Even at common law where either spouse has acted as
agent for the other, under an authority express or implied
in dealing with third persons, the acts, declarations and
admissions of the agent spouse while acting within the
scope of the agency, are admissible in evidence against the
other.‘ Furthermore, it is held as common law in some
states, and is the statutory rule in others, that a spouse
who has acted as agent for the other is a competent wit-
ness in favor of the latter. Evidence of the agent spouse
is not receivable, in any case, however, until the fact of
agency and its scope have been established,® though the
testimony of such agent spouse has been held competent
for this purpose.® The testimony, moreover, must be con-

tents as distinguished from value. Compare Mad River R. Co. ».
Fulton, 20 Ohio, 318.

1 McGill v. Rowland, supra; Ill. ‘Cent. R. Co. v. Taylor, 24 Ill. 323.

McGill ». Rowland, supra; Mad River R. Co. v. Fulton, supra.

* Bach v. Parmely, 35 Wis. 238; Morgenroth ». Spencer, 124 Wis.
564. See also Wilcoxon v. Read, 95 Ill. App. 33, decided under
statute.

4 Birdsall ». Dunn, 16 Wis. 235; Williamson v. Morton, 2 Md. Ch.
79; Robertson v. Brost, 83 Tl. 116; Town v. Lamphire, 37 Vt. 52.

5 May ». Little, 3 Ired. (N. Car.) 27, 38 Am. D. 707.

* Burke v. Savage, 13 Allen (Mass.), 408; Chunot v. Larson, 43 Wis.
154 SPOUSES AS WITNESSES

fined to matters strictly within the scope of the agency.’
The mere fact that a wife has knowledge of her husband’s.
business affairs, even though assisting him with them, does
not render her competent unless she can properly be
deemed an agent therein. Thus, keeping his books from
original entries or memoranda made by him does not ren-
der her competent as to their contents,? though she is com-
petent where she is intrusted with the making of original
entries herself.’

162. Effect of Divorce or Death.

Upon divorce a vinculo either party becomes competent
to testify against the other as to all matters that trans-
pired before marriage or since the divorce was granted,
and, by the weight of authority, as to all that transpired
during the continuance of the marriage, knowledge of
which was not acquired by means of its confidence. These
last remain as fully under the protection of the law as if
the relation still subsisted.+ If either spouse is dead, the
survivor, by the weight of opinion, is competent for or
against the estate of the decedent to the same extent as
upon divorce, but no further.’ Under the rule first stated
a divorced wife has been permitted to testify voluntarily
against her paramour in an action by her divorced hus-
band for criminal conversation. ®

163. Statutory Changes.
Probably in all states statutes have more or less changed

536, 28 Am. R. 567; Paulson v. Hall, 39 Kan. 365. But see Sanborn ».
Cole, 63 Vt. 590, 14 L. R. A. 208.

1 Goesel v. Davis, 100 Wis. 678.

2 Estabrooks v. Prentiss, 34 Vt. 457; Trepp v. Barker, 78 Ill. 146.

* Littlefield ». Rice, 10 Met. (Mass.) 287; Stanton v. Willson, 3 Day
(Conn.), 57, 3 Am. D. 255.

‘Aveson v. Lord Kimard, 6 East, 192; Owen 2. State, 78 Ala. 425,
56 Am. R. 40; Brock v. Brock, 116 Pa. 109; Stein ». Bowman, 13 Pet.
(U. §.) 209, 223.

‘Stanley v. Montgomery, 102 Ind. 102; Lingo ». State, 29 Ga. 470,
483; Stein ». Bowman, supra.

® See post, sec. 165, note 7.
SPOUSES AS WITNESSES 155

the common-law rules as to the competency of spouses for
or against each other. The course of legislation has been
far from uniform, however, and detailed information on
this subject must be sought in the local statutes and de-
cisions, for it is seldom found in available form even in
the larger text-books on evidence. It must therefore
suffice to say that the statutes that almost universally
abolish the common-law rule that parties in interest are
incompetent to testify, do not render one spouse generally
competent as a witness where the other only is interested,
for the disability rests upon reasons of public policy rather
than upon interest alone.! It is generally held, however,
under statutes rendering parties to actions competent
witnesses, that either spouse who is a real party in interest
may testify in his or her own behalf though the other
spouse is an adverse party, as where the suit is for the
recovery or protection of the separate estate of either
against the other, or for divorce, alimony or the custody
of children.

164. Same—Confidential Communications.

Both at common law and under statutes making hus-
band and wife competent witnesses for or against each
other, or where they are rendered competent by death
or divorce, confidential communications between them
during marriage are privileged, unless that statute itself
expressly provides otherwise; and in most states neither
spouse will be permitted to testify as to these without the
consent of the other, or in some states even with such con-
sent.2. This rule applies even where neither spouse is a
party to the action, for the confidence of the marriage
relation quite as strongly requires that husband or wife
should be privileged from disclosing such communications

1 Lucas v. Brooks, 18 Wall. (U. 8.) 486; Lincoln ». Madans, 102 Il.
417; Byrd v. State, 57 Miss. 243, 34 Am. R. 440. But see Merriam v.
Hartford, etc., R. Co., 20 Conn. 354, 52 Am. D. 344; Peaslee v. Mc-
Loon, 16 Gray (Mass.), 488.

4See 3 Wigm. on Ev., secs. 2241, 2242,
156. SPOUSES AS WITNESSES

at the instance and in the disputes of third persons, as
in cases where they are themselves contending parties.

What constitutes a confidential communication between
husband and wife it is not our purpose to inquire in detail.
Ordinarily it includes every matter of fact with which
either spouse became acquainted, through, or by reason of,
the intimacy and confidence of the marriage relation. Gen-
erally, all communications made between husband and wife
when alone, or together in the presence of their young
children, and all private correspondence between them,
and the contents of all documents intrusted by one to
the care of the other, are deemed confidential communi-
cations even though secrecy is not enjoined, at least in
the absence of some showing that they were not intended
to be such.!. But communications made in the presence
of a third person are not privileged and may be testified
to by either spouse or by such third person.? Even an
eavesdropper may testify to a confidential communi-
cation overheard between husband and wife.’

The rule of privileged communication has no applica-
tion where one spouse is competent against the other
because the prosecution is for a crime committed against
the witness spouse,‘ and one spouse who has acted as
agent for the other may testify to such communications
as are relevant to the transaction involved and within
the scope of the agency.®

1See 4 Wigm. on Ev., sec. 2336, and cases collected in note 1, and
in the note to Com. v. Sapp, 29 Am. St. R. 411. In a few states all
communications between husband and wife are privileged, whether
confidential or not.

* Reynolds ». State, 147 Ind. 3; McCague ». Miller, 36 Ohio St. 595;
State ». Gray, 55 Kan. 135; Hopkins ». Grimshaw, 165 U. S. 342.

+ State v. Center, 35 Vt. 378; Gannon ». State, 127 Ill. 507, 11 Am. St.
R. 147. As to letters between husband and wife in the hands of third
persons the cases are in conflict. Compare People ». Hayes, 140 N. Y.
484, 37 Am. St. R. 572, 23 L. R. A. 830, with Wilkerson ». State, 91
Ga. 729, 44 Am. St. R. 63. See also O’Toole v. Ins. Co., 123 N. W.
795 (Mich., 1910).

“See ante, sec. 159; Com. v. Sapp, 90 Ky. 580, 29 Am. St. R. 405.

+ See ante, sec. 161; Com. v. Hayes, 145 Mass. 289; Schmied »v. Frank,
SPOUSES AS WITNESSES 157

165. Miscellaneous.

Generally neither spouse is a competent witness to
prove the access or non-access of the husband, whether
upon an issue of legitimacy or otherwise.1 In actions by
the husband for criminal conversation the wife is not a
competent witness, though it is otherwise after the parties
have been divorced.? Statutes in some states, however,
render the wife competent for the defendant though the
marriage still subsists, save as to her confidential com-
munications with her husband, and generally without the
aid of statute the plaintiff, being generally a competent
witness on his own behalf, may testify in actions for
criminal conversation, though his testimony naturally
tends to criminate his wife. Notwithstanding the rule
as to confidential communications between the spouses,
it is generally held that the letters of the wife to the hus-
band written before the alleged wrong may be introduced
in evidence in his action for her seduction or the alienation
of her affections, for the purpose of showing her affection
or want of it for him, prior to the injury.‘

86 Ind. 250; Dyer v. State, 88 Ala. 225; Grove Ry. Co. v. Center, 42
Kan. 438. Compare Marshall ». Marshall, 71 Kan. 313.

1See post, sec. 459; Wallace v. Wallace, 137 Ia. 38, 14 L. R. A. (N.
S.) 544, 126 Am. St. R. 253.

2 Ratcliff ». Wales, 1 Hill (N. Y.), 63; Dickerman v. Graves, 6 Cush.
(Mass.) 308, 53 Am. D. 41, and note; Wootrich v. Freeman, 71 N. Y.
601. Contra, Cross ». Rutledge, 81 Ill. 266; Sanborn v. Gale, 162
Mass. 412, 26 L. R. A. 864.

3$mith v. O’Brien, 6 N. Y. Supp. 174; Roesner v. Darrah, 65 Kan.
599. Contra, Cornelius ». Hambay, 150 Pa. 359; 1 Greenl. on Ev.,
sec. 342, note.

* Horner v. Yance, 93 Wis. 352, and authorities cited.
CHAPTER XIV

PROPERTY RIGHTS AND CONTRACT CAPACITY AND LIABILITY
OF HUSBAND AND WIFE AT COMMON LAW—WIFE’S
PERSONALTY; CHATTELS REAL AND REAL ESTATE

166. In General—The Common Law.

The property rights and contract capacity of husband
and wife in modern times cannot be properly compre-
hended without an understanding of three distinct ele-
ments in our jurisprudence: common law, equity and codes
or statutes. So far as is practicable we will consider
separately in their historical order and endeavor to
show:

1. The common law of the subject.

2. How far equity has modified or superseded the com-
mon law.

3. How far the rules of law and equity have been
modified or superseded by legislation.

We have already seen that the relation of husband and
wife at common law presented both a unity and a peculiar
duality of which the husband was the dominant head.
The wife’s legal existence or identity was for the most
part merged or swallowed up in that of the husband. The
spouses were for many purposes deemed one person in
law, and the husband was that person.! To this theory
of unity and the husband’s dominance, the common-law
rules touching the property rights of the spouses and the
incapacity of the wife to contract, have quite uniformly
been attributed by courts and text-writers.?

‘See ante, sec. 112; Scarborough v. Watkins, 9 B. Monr. (Ky.) 540,
50 Am. Dec. 528.

? See ante, sec. 112,

, 158
WIFE’S PERSONALTY 159

167. Wife’s Personalty in Possession at Common Law.

By the common law, at the instant of marriage and by
virtue of it, all the wife’s personal chattels in possession
vest instantly in the husband, who takes them as absolute
owner. Marriage, in other words, amounts to an abso-
lute gift to the husband of all the goods, chattels and
personal estate of which the wife is actually and bene-
ficially possessed in her own right.1_ Not only personalty
in possession owned by the wife at the time of marriage,
but all such chattels as she acquires in any way in her own
right during coverture, are his to enjoy and dispose of as
he sees fit during his life or by will at his death, and are
assets of his estate upon his death even though she sur-
vives him,? and are liable for his debts. Choses in pos-
session in this connection include tangible chattels in the
hands of third persons so long as they are held in the
wife’s right and not adversely to her,* as where they are
in the hands of an agent,> guardian,® trustee or bailee.’
These rules apply to money as well as to other chattels.®
A legacy or distributive share, however, is by the weight

12 Bl. Com. 435; Caffey v. Kelley, Busbee’s Eq. (N. Car.) 48; Elling-
ton v. Harris, 127 Ga. 85, 119 Am. St. R. 320. Ready money is within
this rule though the husband permits her to have the custody and
control of it until his death. Jordan v. Jordan, 52 Me. 320.

22 Kent’s Com. 143; Fleet v. Perrins, L. R. 3 Q. B. 541; Standeford
v. Devol, 21 Ind. 404, 83 Am. D. 351; Botts ». Gooch, 97 Mo. 88, 10
Am. St. R. 286; Leakey v. Maupin, 10 Mo. 368, 47 Am. D. 120; Caffey
v. Kelley, supra.

3The exceptional rule as to the wife’s paraphernalia, as certain
articles for her personal: use and adornment are called, is explained
later on. See post, sec. 190.

‘ Caffey v. Kelley, Busbee’s Eq. (N. Car.) 48.

® Crosby ». Otis, 32 Me. 256; Morrow ». Whitesides, 10 B. Monr.
(Ky.) 411.

® Magee v. Toland, 8 Port. (Ala.) 36; McDaniel ». Whitman, 16
Ala. 348; Daniel ». Daniel, 2 Rich. Eq. (S. Car.) 115, 44 Am. D. 244;
Mason v. MeNeil, 23 Ala. 201.

7 Miller v. Bingham, 1 Ired. Eq. 423, 36 Am. D. 58; Whitaker ».
Whitaker, 1 Dev. (N. Car.) 310; Magee v. Toland, supra.

® McDaniel v. Whitman, supra; Crosby v. Otis, 32 Me. 256,
160 WIFE’S PERSONALTY

of authority deemed a chose in action,’ and so, clearly,
is a general deposit of money in bank.

But the husband takes no beneficial interest whatever,
even at common law, in property held by the wife or com-
ing to her in right of another as agent or trustee of the
latter.2. The right of the husband to the wife’s choses in
possession arises jure mariti and continues so long as the
marriage relation subsists, and is unaffected, in the absence
of statutes, by his adultery or other misconduct,’ or
divorce a mensa et thoro.*

168. Wife’s Choses in Action.

The wife’s things in action as distinguished from her
choses in possession follow somewhat different rules. They
do not become the husband’s absolutely, whether they ac-
crued before or after marriage, but are his only so far as
he sees fit to reduce them to possession during coverture.5
If he reduces them to possession, however, in his capacity
of husband and for his own use and benefit, they or their
proceeds are his from the moment of reduction, to the
same extent as her choses in possession.®

169. What Deemed Choses in Action.

Choses in action, within the rule just stated, appear to
include all claims and demands of a personal nature in
favor of the wife for which an action will lie either in law
or equity.’ Ordinary debts, whether due on specialty or

1 See post, sec. 169.

2 Clausen v. LaFranz, 1 Ia. 226.

* Armstrong v. Armstrong, 32 Miss. 279; Vreeland’s Exrs. ». Ryno’s
Exrs., 26 N. J. Eq. 160.

4 Prescott ». Brown, 23 Me. 305, 39 Am. D. 623; Washburn ». Hale,
10 Pick. (Mass.) 429. It is otherwise as to absolute divorce. Arring-
ton v. Arrington, 102 N. Car. 491, 514.

5 Leakey v. Maupin, 10 Mo. 368, 47 Am. D. 120; Hayward v. Hay-
ward, 20 Pick. (Mass.) 517.

® Needles v. Needles, 7 Ohio, 432, 70 Am. D. 85; Birmingham Water-
works Co. ». Hurne, 121 Ala. 168, 77 Am. St. R. 48; Wilford v. Phelan,
120 Tenn. 589, 596. :

7 As to causes of action for personal torts to the wife, see post, sec. 239;
WIFE’S PERSONALTY 161

simple contract, are choses in action, and so, by the weight
of authority, are legacies and distributive shares, at least
before final order of distribution.!

While bills and notes in some respects resemble tangible
property, they are deemed choses in action as against the
husband, who must assert his right to them during cov-
erture either by collecting them or indorsing them away.’
Corporate stocks and bonds are deemed choses in action.’

170. Rights of Surviving Husband or Wife.

If the wife outlives the husband, however, or there is
an absolute divorce,‘ choses in action not reduced to
possession by him survive to her and she holds them as
absolutely as if she had never been married, whether they
accrued to her before marriage or while the coverture
continued. 5

If the husband survives the wife he can still receive or
recover her choses in action. He does so, however, not
strictly in his own right, but as her administrator. It has
been held by some authorities that his right to administer
arose jure mariti at common law, and by others that it is

Smith ». Smith, 98 Tenn. 101, 60 Am. St. R. 838; Bennett v. Bennett,
116 N. Y. 584, 6 L. R. A. 553.

1 Hayward v. Hayward, 20 Pick. (Mass.) 517; Wells v. Tyler, 25
N. H. 340; Keagy »v. Trout} 85 Va. 390; Leakey v. Maupin, 10 Mo. 368,
47 Am. D. 120; Schouler’s Hus. & W., sec. 150.

2 Nash v. Nash, 2 Madd. 133; Phelps v. Phelps, 20 Pick. (Mass.) 561;
Whittelsey 1. McMahon, 10 Conn. 137, 26 Am. D. 382; Snider v. Ridge-
way, 49 Ill. 522; Stearns v. Stearns, 30 Vt. 213; Greenleaf v. Hill, 31
Me. 562. Compare 8 Mass. 229.

2 Arnold ». Ruggles, 1 R. I. 165; In re Hinds, 5 Whart. (Pa.) 138,
34 Am. D. 542; Pike v. Collins, 33 Me. 38; In re Reciprocity Bank, 22
N. Y. 9, 15.

‘4 Arrington v. Arrington, 102 N. Car. 491, 514.

5 Boozer v. Addison, 2 Rich. Eq. (8. Car.) 273, 46 Am. D. 43; Thrasher
v. Ingram, 32 Ala. 655; Hayward ». Hayward, 20 Pick. (Mass.) 517.
By the common law of Connecticut it seems that choses accruing to
the wife during marriage become the husband’s absolutely without
reduction. Baldwin v. Carter, 17 Conn. 208, 42 Am. D. 735; Griswold
». Penniman, 2 Conn. 564. See also Greenleaf v. Hill, 37 Me. 562.

11
162 WIFE’S PERSONALTY

derived from various statutes in England and from similar
statutes in this country.1 But whatever may be the
source of his right, if he recovers her choses in action as
administrator he holds the residue at common law, after
payment of the expenses of administration and her ante-
nuptial debts, absolutely as his own.? It should be re-
membered, however, that the common law in this and
many other particulars as to the wife’s property has in
some states been materially changed, and the husband’s

right to the residue after administration is much abridged
or wholly abolished, or may be entirely cut off by the
wife’s will, and that his right to administer is seldom or
never absolute.

171. Same—What Constitutes Reduction into Pos-
session by Husband.

What acts of the husband will constitute such a reduc-
tion of the wife’s choses in action as will bar her right
as survivor is not always easy to determine. In any case
there must be a reduction both in the sense of some
positive act of dominion over them, and an intent to
appropriate them to his own sole use.* If he takes pos-
session of them or their proceeds merely as her agent,
trustee or bailee, her rights in the property are not cut off,
either in his favor,‘ or in favor of his creditors,’ at least
so long as he continues to hold the property for her and

1See Whitaker v. Whitaker, 6 Johns. (N. Y.) 112; Judge of Probate
v. Chamberlain, 3 N. H. 129; Mayfield v. Clifton, 3 Stew. (Ala.) 375.

22 Kent’s Comm. 135; Westervelt v. Gregg, 12 N. Y. 202, 62 Am. D.
161, and authorities cited; Ellsworth ». Hinds, 5 Wis. 613; Gillett ».
Powell, Spear’s Eq. (8. Car.) 142. See also Clark v. Clark, 6 W. &S.
(Pa.) 85.

3 See Caplinger v. Sullivan, 2 Humph. (Tenn.) 548, 37 Am. D. 575,
578, and note. The right of the husband in this regard is in no wise
dependent upen the consent of the wife. Mardee ». Mardee, 31 N
Car. 295, 32 Ala. 655.

‘Baker v. Hall, 12 Ves. Jr. 497; Hart v. Leete, 104 Mo. 315; May-
field v. Clifton, 3 Stew. (Ala.) 375; Pierson » Smith, 9 Ohio, 554, 75
Am. D. 486.

5 Hart v. Leete, supra. See post, next sec.
WIFE’S PERSONALTY 163

not for himself;! and so where they are collected during
coverture, if he permits her to deal with the proceeds as
her own.? The husband who takes the wife’s choses in
action into his possession or disposes of them, however, is
presumed to do so as husband and jure mariti; but this pre-
sumption may be rebutted by showing that he took them
or their proceeds as her agent or trustee, or otherwise for
her benefit. Where the wife’s choses in action consist of
bills and notes, the husband may indorse them in his own
name and receive the proceeds, and this will constitute
prima facie a reduction into his possession.* But merely
taking possession of the evidence of debts due the wife or
her continuing choses in action, such as shares of stock,
is not sufficient reduction into possession,® and the same
is true of the collection of interest or dividends on her
securities, or even of part of the principal, save as to the
sums collected.* He should possess himself of the title to,
or the proceeds of, her choses in action.’ Obtaining judg-
ment for a debt in his own name is held a reduction into
possession, prima facie at least.§ It should be observed

1 Dunn ». Sargent, 101 Mass. 336; Nolen’s Appeal, 23 Pa. 37; Ren-
wick »v. Smith, 118. Car. 294.

2 Totten ». McManus, 5 Ind. 407; Standeford v. Devol, 21 Ind. 404,
83 Am. D. 351; Timbers v. Katz, 6 W. & S. (Pa.) 290.

3 Hart v. Leete, 104 Mo. 315; Baker v. Hall, 12 Ves. Jr. 497; Machen
v. Machen, 38 Ala. 366; Beam »v. Bridgers, 108 N. Car. 276, 23 Am.
St. R. 59; In re Hind’s Est., 5 Whart. (Pa.) 138, 34 Am. D. 542. But
see Barber ». Slade, 30 Vt. 193, 73 Am. D. 299.

‘Daniel’s Neg. Inst., sec. 254; Savage v. King, 17 Me. 301.

5Nash v. Nash, 2 Madd. 133; Daniels ». Richardson, 22 Pick.
(Mass.) 570; Barber v. Slade, 30 Vt. 193, 73 Am. D. 299; Dixon ».
Dixon, 18 Ohio, 113.

* Buckingham v. Carter, 2 Disney (Ohio), 41; Brown v. Bokee, 53
Md. 163.

7Tritts’ Admr. v. Caldwell, 31 Pa. 233; Schuyler ». Hall, 5 Johns.
Ch. (N. Y.) 196. ,

® Oglander ». Bastion, 12 Mod. 346, 1 Vern. 396; Needles v. Needles,
7 Ohio, 432, 70 -Am. D. 85; Dixon ».. Dixon, 18 Ohio, 118. See also
Gillett ». Powell, Spear’s Eq. (S. Car.) 142; Latourette v. Williams, 1
Barb. (N. Y.) 9.
164 WIFE’S PERSONALTY

here, however, that in actions to recover choses in action
accruing to the wife before marriage both spouses must
join, and if the husband dies after judgment, but before it
is satisfied, it inures to the wife as survivor.! For choses
in action accruing to the wife after marriage the husband
may usually sue alone or with her at his option, and where
he sues alone the judgment inures to the benefit of his
estate, even though she survives him,? but if he joins her
in his suit she takes the unsatisfied judgment as survivor
as against his representatives.*®

As to the wife’s reversions or remainders in personalty
some doubt exists, but the prevailing rule is that a merc
assignment by the husband will not defeat the wife’s
rights should the remainder or reversion fall in after his
death or a divorce a vinculo.4 An absolute assignment
by the husband of the wife’s choses in action presently
due, however, in exchange for a consideration which he
receives in his own right, is a reduction into possession,’
though it is held by some courts that the assignee, at
least of equitable choses in action, must get possession
during the husband’s life in order to cut off the wife’s
right of survivorship.®

1 Boozer v. Addison, 2 Rich. Eq. (8. Car.) 273, 46 Am. D. 43; Schou-
ler’s Hus. & W., sec. 158. Compare Dixon v. Dixon, supra.

? Oglander v. Bastion, 1 Vern. 396; Westervelt ». Gregg, 12 N. Y.
206, 62 Am. D. 160. As to the rule where there is an express promise
to the wife, see post, sec. 293.

* Bidwood v. Way, 2 W. Bl. 1236; Boozer v. Addison, supra; Pike 2.
Collins, 33 Me. 38. See also Tillett 1. Com., 9 B. Monr. (Ky.) 438.

4 Purdew v. Jackson, 1 Russ. 1, 71; Honner ». Morton, 3 Russ. 65;
Metford v. Metford, 9 Ves. Jr. 87; Needles v. Needles, 7 Ohio, 432, 70
Am. D. 85; Burnett ». Kinaston, Freem. Ch. 241; Caplinger »v. Sullivan,
2 Humph. (Tenn.) 548, 37 Am. D. 575.

5 Pierce ». Dustin, 24 N. H. 417; Howard ». Bryant, 9 Gray (Mass.),
239. Otherwise as to his assignment without consideration, as dis-
tinguished from his technical release. Westervelt 7. Gregg, 12 N. Y.
205, 62 Am. D. 160.

‘Bryan ». Spruill, 57 N. Car. (4 Jones’s Eq.) 28; Arrington 7.
Yarborough, 54 N. Car. (1 Jones’s Eq.) 72; McCas v. Wolf, 42 Ala.
394.
WIFE’S PERSONALTY 165

A pledge by the husband of the wife’s choses in action
is held not to be a reduction into possession,’ though
otherwise as to his mortgage.” If a debt is presently due
the wife, the husband’s release, whether with or without
consideration, is valid;* but the rule is otherwise as to
claims which give no present right of action.‘ A mere
testamentary disposition by the husband is not a reduction
into possession.» So it has been held that the husband
must act in his own right, and the guardian of an insane
or infant husband cannot act for him in the matter of
reduction.§

172. Rights of Husband’s Creditors in Wife’s Choses
in Action.

By the weight of authority the husband’s creditors
cannot subject the wife’s choses in action to his debts
without his consent, unless he has first reduced them to
his possession. This is on the ground that the right to
reduce them is personal to the husband and optional with
him, and that the rights of the husband’s creditors cannot
rise higher than their source.’

1 Latourette v. Williams, 1 Barb. (N. Y.) 9.

2 Latourette v. Williams, supra; Tritt ». Colwell, 31 Pa. 228.

* Weems v. Weems, 19 Md. 344.

4 Needles ». Needles, 7 Ohio, 432, 70 Am. D. 85.

5 Grebill’s App., 87 Pa. 105; Dunn ». Sargent, 101 Mass. 336.

6 Andover v.. Merrimack County, 37 N. H. 438. Contra, Matter
of Jenkins, 5 Russ. L. 187.

7 Andrews v. Jones, 10 Ala. 460; De Vaughn v. McLeroy, 82 Ga. 706;
Mann ». Higgins, 7 Gill (Md.), 265; Dennison v. Nigh, 2 Watts (Pa.),
90; Coffin ». Morrill, 22 N. H. 355; Grebill’s Appeal, 87 Pa. 105;
Godbold v. Bass, 12 Rich. L. (8. Car.) 202; Harris v. Taylor, 3 Sneed
(Tenn.), 536, 67 Am. D. 576; Bryan v. Spruill, 57 N. Car. 28; Short
v. Moore, 10 Vt. 446. Contra, Shuttleworth v. Noyes, 8 Mass. 229;
Babb ». Elliott, 4 Harr. (Del.) 466; Westbrook ». Comstock, Walk.
(Mich.) 317; Vance v. McLaughlin, 8 Gratt. (Va.) 289. If the husband
dies before judgment the creditor’s rights are defeated. Hockaday ».
Sallee, 26 Mo. 219; Strong v. Smith, 1 Met. (Mass.) 476; Parks ».
Cushman, 9 Vt. 320.
166 WIFE'S REAL ESTATE

WIFE’S CHATTELS REAL AND REAL ESTATE AT COMMON LAW

178. Wife’s Chattels Real.

Estates and interests in land less than a freehold are
frequently denominated chattels real, as they partake
by the common law more of the nature of personal prop-
erty than of real estate. At the common law, upon mar-
riage, the husband becomes entitled to the wife’s chattels
real somewhat in the same way that he takes her choses
in action. He may sell, mortgage or otherwise dispose
of them during the marriage without her concurrence or
consent,! and they are liable to be taken and sold for his
debts.?. If he or his creditors absolutely dispose of the
whole term her rights, though she survives him, are effect-
ively barred.? If he merely exercises his right to collect
the rents or profits, she will take as survivor whatever
portion of the term remains at his death, even though he
may have attempted to dispose of it by will. His mort-
gage or sale of a part, or lease of a part, or for a less term
than the wife had, only bars the wife pro tanto, and if she
survives she is entitled to the equity of redemption or the
residue of the land or of the term.’ If the husband sur-
vives, the wife’s chattels real belong to him and not to
her personal representatives, unless they are vested in
the wife to her separate use.°®

12 Kent’s Comm. 134; Riley’s Adm. v. Riley, 19 N. J. Eq. 229;
Merrywether ». Booker, 5 Litt. (Ky.) 255; Allen ». Hooper, 50 Me.
374; Lawes v. Lumpkin, 18 Md. 334.

Miller ». Williams, 1 P. Wms. 258; Allen ». Hooper, supra.

3 Jackson ». McConnell, 19 Wend. (N. Y.) 175, 32 Am. D. 439.

42 Bl. Comm. 434; Riley’s Admr. v. Riley, 19 N. J. Eg. 229. See also
Schouler’s Hus. & W., sec. 164.

5 Riley’s Admr. v. Riley, supra.

5 Doe v. Polgrean, 1 H. Bl. 535; In re Bellemy, 25 Ch. D. 620. An
exception to the husband’s right of survivorship occurs where, at the
time of marriage, the wife held in joint tenancy with another. In this
case the surviving joint tenant of the term takes to the exclusion of
the husband whose title is the newer and inferior one. 6 Coke Litt.
185b; Doe » Wilkins, 5 Nev. & M.435. As to chattels real held by the

wife as administratrix, see Wood. Landl. & Ten. (2d Ed.), sec. 114;
Schouler’s Hus. & W., sec. 164.
WIFH’S REAL ESTATE 167

174. Rights of Husband in Wife’s Real Estate or
Freeholds.

By the common law the wife’s real estate did not follow
the rule of chattels personal and become the property
of the husband absolutely. By force of the marriage,
however, he acquired in all lands of which the wife was
seized during marriage, an estate of freehold by virtue
of which he could take the rents and profits during cover-
ture.1 Upon his death she held the property absolutely
as against his heirs,? and upon her death it went to her
heirs,’ subject in certain cases to the surviving husband’s
estate by the curtesy, as later explained.

If the wife had an estate for her own life it terminated
at her death. All that survived to the husband was his
claim to emblements or crops planted by him and growing
at the time of her death.’ If the estate was vested in the
wife during the life of another it is said that the husband
held after her death and during the life of the cestui qui
vie, as special occupant.®

175. Incidents of the Husband’s Estate During Mar-
riage.

During marriage the husband and wife were deemed to
have joint seizin of her freeholds, and for any injury to the

12 Bl. Comm. 433; 2 Kent’s Comm. 130; Babb v. Perley, 1 Me. 6;
Breeding v. Davis, 77 Va. 639, 46 Am. R. 740; Clapp v. Stoughton, 10
Pick. (Mass.) 463; 1 Washb. Real Prop. 188, 340, 341.

2 Paine v. Parker, 10 Me. 181, 25 Am. D. 221. Absolute divorce
terminates the husband’s interest. Wright v. Wright, 2 Md. 429, 56
Am. D. 723. Limited divorce or divorce a mensa et thoro did not
terminate the estate at common law, though it is now otherwise by
statute in some states. Kriger . Day, 2 Pick. (Mass.) 316.

32 Kent’s Comm. 133. The rents and profits accrued during cover-
ture, however, belonged to the husband’s estate. Clapp v. Stoughton,
10 Pick. (Mass.) 463.

4See post, secs. 194 et seq.; Breeding ». Davis, 77 Va. 639, 46 Am.
R. 740.

= 1 Washb. Real Prop. 105.

* 2 Kent’s Comm. 134; Schouler’s Hus. & W., sec. 417.
168 WIFE’S REAL ESTATE

inheritance they were required to sue jointly.'_ But the
husband could sue alone for rents and profits or for any
wrong whereby the value of his usufruct was impaired.?
The husband could sell or incumber his own interest as
distinguished from the reversion,’ and it was liable to
execution for his debts. The husband could not lawfully
commit waste. If he did so, however, he was not liable
to the wife at law, for she could not sue him at law. Her
remedy was in equity by injunction,’ though he was
liable at law to those entitled to the inheritance.® It
follows from what has been said that the husband could
lease the wife’s lands during coverture without her con-
sent.’ If he attempted to demise them for a longer time,
however, his widow could elect to affirm or to avoid the
lease upon his decease,® and her acceptance of rent accru-
ing after her husband’s death would estop her from deny-
ing the validity of the lease for the unexpired portion of
the term.

176. Conveyance of Wife’s Lands.
By the common law, as we have seen, the husband could .
alien his own marital estate or interest in the lands of
the wife without her consent or concurrence. It is also
clear upon the general principles of coverture that the
wife could not by any means dispose of her lands without

* Coke Litt. 351a; Babb ». Perley, 1 Me. 6; Coe v. Wolcottville Mfg.
Co., 35 Conn. 178; Allen v. Hooper, 50 Me. 371.

2 Reeve’s Dom. Rel. 130, 133; Gray ». Dryden, 79 Mo. 106; Babb ».
Perley, supra.

* Robertson v. Norris, 11 Ad. & E. 916; Allen v. Hooper, 50 Me.
371.

‘Canby ». Porter, 12 Ohio, 79; Beale ». Knowles, 45 Me. 479; Lich-
field ». Cudworth, 15 Pick. (Mass.) 23.

5 Babb », Perley, 1 Me. 6. One claiming under the husband is liable
at law in a joint action by husband and wife. Babb ». Perley, supra.

6 Bates v. Shrader, 13 Johns. (N. Y.) 260.

"Hill v. Saunders, 2 Bing. 112, 9 E. C. L. 505; Lynde ». McGregor,
13 Allen (Mass.), 182, 90 Am. D. 188.

* Brown v. Lindsay, 2 Hill’s Ch. (S. Car.) 542.
ESTATE BY ENTIRETIES 169

the concurrence of her husband.' It would probably
serve no useful purpose, however, to trace the history of
this matter from the early common law down through
acts of Parliament even to colonial times. It is perhaps
enough to say that the conveyance of the wife’s lands
in England was long effected by means of fictitious le-
gal proceedings known as fines and common recoveries.?
Though these have been recognized in this country as a
proper means of conveying the real estate of wives, long-
established usage having the force of common law made
simple joinder of the husband in the wife’s conveyance
legally sufficient.* At present the legal formalities essen-
tial to the conveyance of the wife’s lands are prescribed
by statutes in England and in many of our states, as is
later explained, and her conveyance, unless executed in
the form prescribed by statute is, as to her, absolutely
void.

It should be remembered, however, that every convey-
ance must be legally tested, not by the law in force now,
but by the law in force when it was made, unless curative
acts have intervened, and that a conveyance formerly
made without the husband’s concurrence is not valid at
the present time simply because a like conveyance could
now be made by a married woman without it.

177. Estate by Entireties.

At common law if an estate in real property is granted
or devised to persons who are husband and wife when the
estate vests, without designating that they shall take
otherwise, they become tenants by the entireties, and

1 Concord Bank ». Bellis, 10 Cush. (Mass.) 276; Den v. Lawshee, 24
N. J. L. 616.

2 Brewster on Conv., sec. 360; Lowell v. Daniels, 2 Gray (Mass.),
161, 61 Am. D. 448; Martin v. Dwelly, 6 Wend. (N. Y.) 9, 21 Am. D.
245.

3 Manchester v. Hough, 5 Mason (U. 8.), 67; Brewster on Conv.,
secs. 360 et seq.; Schouler’s Hus. & W., sec. 174.

4See post, sec. 249. The question of estoppel by the deed of a feme
covert is discussed, post, sec. 250.
170 ESTATE BY ENTIRETIES

their interest is called an estate or tenancy by the entirety.!

This estate derives its peculiar attributes from the theory
of the unity of husband and wife. They are deemed to
take, not as joint tenants, properly speaking, nor as
tenants in common, but both are deemed seized of the
entirety or the whole estate for all purposes.” In this
respect it differs from joint tenancy, for under the latter,
though the owners are deemed jointly seized of the whole
estate so that the survivor takes the whole, yet for pur-
poses of alienation’ each is severally seized of a moiety,
unless the instrument creating the estate provides other-
wise.®

As in joint tenancy, the most important feature of
tenancy by entireties is survivorship, but it differs from
the former in the fact that neither spouse can, by his or
her sole conveyance, defeat the right of survivorship of
the other,‘ and in the fact that there can be no partition
between them.’ But husband and wife may convey lands
held in entirety by their joint conveyance, in which the
wife should appear as grantor and not merely as releasing
dower. During marriage the husband had the right to
the enjoyment of lands held by entireties, and might alien

12 Bl. Comm., 282; 4 Kent’s Comm., 362; Torrey v. Torrey, 14
N. Y. 430; Hiles ». Fisher, 144 N. Y. 306, 30 L. R. A. 305, 43 Am. St.
R. 762.

* Back v. Andrews, 2 Ver. 120; Green v. King, 2 W. BI. 1211; Barber
v. Harris, 15 Wend. (N. Y.) 619.

* Hiles ». Fisher, supra; Statz v. Schreck, 128 N. Y. 263, 26 Am. St.
R. 475; Thornton ». Thornton, 3 Rand. (Va.) 179; Johnson ». Hart,
6 Watts & S. (Pa.) 319, 40 Am. Dec. 565; Hardenberg ». Hardenberg,
10 N. J. L. 42, 18 Am. Dee. 371.

‘Hiles ». Fisher, supra; Statz v. Schreck, supra; Gibson ». Zimmer-
man, 12 Mo. 381, 51 Am. D. 168.

* Harrer v. Wallner, 80 Ill. 197. Upon divorce, however, it is gen-
erally held that the estate is destroyed, the parties become tenants in
common, and no right of survivorship exists. Upon this point see
note to Allies ». Lyon, 216 Pa. 604, in 10 L. R. A. (N. 8.) 463, and
Robinson’s Appeal, 30 L. R. A. 331. Neither joint tenancy nor
tenancy by entireties can be defeated by will.

* Wales ». Coffin, 13 Allen (Mass.), 213.
ESTATE BY ENTIRETIBS 171

or incumber them during his own life subject to the wife’s
right of survivorship.!

178. Same—Modern Status of Estate.

The estate by the entirety seems to have been recog-
nized in this country as part of the common law, save in
Connecticut and Ohio.? In Nebraska and Oklahoma it
has been declared inapplicable to the modern conditions
existing when their governments were organized.* Neither
has it obtained where the community system prevails.
It is still recognized, however, with many of its ancient
attributes in perhaps a third of our states. In the ma-
jority of them, however, the estate by entireties is held
to be abolished, either because it is deemed contrary to
the letter or spirit of the statutes relating to joint tenancy
and abolishing the incident of survivorship therein, or
because the married women’s acts are deemed to remove
whatever reason there had ever been for its existence.®

1 Bertles v. Nunan, 92 N. Y. 152, 44 Am. R. 361; Pray ». Stebbins,
141 Mass. 219, 55 Am. Rep. 462; Washburn ». Burns, 34 N. J. L. 18.
See Hiles v. Fisher, 144 N. Y. 306, 43 Am. St. R. 762, 30 L. R. A. 338,
as to power of husband under separate property acts to incumber
the wife’s interest during marriage.

2 Whittlesey v. Fuller, 11 Conn. 337; Farmers’, etc., Bank v. Wallace,
45 Ohio St. 152, 165.

3 Kerner v. McDonald, 60 Neb. 663, 83 Am. St. R. 550; Helvey ».
Hoover, 11 Okla. 687.

4See Simons »v. Bollinger, 154 Ind. 83, 48 L. R. A. 234; Doane ».
Feather’s Est., 119 Mich. 691; Hume »v. Hopkins, 140 Mo. 65; Hiles
». Fisher, 144 N. Y. 306, 30 L. R. A. 333, and note; Bertles ». Nunan,
92 N. Y. 152, 44 Am. R. 361; Bramberry’s Est., 156 Pa. 628, 36 Am.
St. R. 64, 22 L. R. A. 594; Pray v. Stebbins, 141 Mass. 219, 55 Am. R.
462; Long v. Barnes, 87 N. Car. 329. :

5 Clark ». Clark, 56 N. H. 105; Mittel v. Carl, 133 Ill. 65, 8 L. R. A.
655; Robinson, Appellant, 88 Me. 17, 51 Am. St. R. 367, 30 L. R. A.
333; Donegan ». Donegan, 103 Ala. 488, 49 Am. St. R. 53. Lands
deeded to husband and wife deemed held in joint tenancy under Wis-
consin statutes. Bassler ». Rewodlinski, 130 Wis. 26, and cases cited.
Compare cases cited in the preceding note. See also Hardenberg ».
Hardenberg, 10 N. J. L. 42.
172 ESTATE BY ENTIRETIES

In view of this state of the law the existence and present
status of the estate by entirety can only be determined
by a careful examination and comparison of the local
decisions and statutes, it being borne in mind that titles
may still be affected by common-law rules in states where
this tenancy once existed but has since been abolished. '

1 Pease v. Inhabitants of Whitman, 182 Mass. 363; Long v. Barnes,
87 N. Car. 329.
CHAPTER XV

CONTRACTS OF HUSBAND AND WIFE AT COMMON LAW

179. In General—Husband’s Contracts.

The common-law principle of coverture operates, in
general, to wholly deprive the wife of contract capacity
during marriage, while leaving the power and capacity
of the husband to contract with third persons intact.!
Not only do his contracts entered into with third persons,
whether before or during marriage, bind him the same as
if he had remained single, but he becomes liable to them
during coverture upon the antenuptial contracts of the
wife, as explained in the next section. If he undertakes
to act as her agent under the common law, he is presumed,
prima facie at least, to bind himself personally, as she is
not a legally responsible principal and has no power to
delegate an authority.? If he becomes a joint promisor
with her, he is liable alone,* and if he promises as her
surety he is personally bound as principal.¢ |

180. Husband’s Liability on Antenuptial Contracts of
Wife.

The common-law liability of the husband for the ante-
nuptial torts of the wife has already been considered.®
Upon the principle that the wife can never be sued alone
and, perhaps, that by marriage he adopts both her and
her circumstances together, the husband is bound at
common law during marriage for the antenuptial debts

1 Sims v. Ricketts, 35 Ind. 181, 9 Am. R. 679.

2 Kdings v. Brown, 1 Rich. (S. Car.) 255.

3 Marquat v. Marquat, 12 N. Y. 36; Viser v. Scruggs, 49 Miss. 705;
Jackson v. Finch, 27 Ind. 316.

* Wiggins’ Appeal, 100 Pa. 155.

5 See ante, sec. 133.

173
174 CONTRACTS OF MARRIED WOMEN

and engagements of the wife, whether she brought him
property or not.! The action to enforce the wife’s ante-
nuptial debts during coverture should be brought, and
judgment rendered, against the husband and wife jointly.”
The liability of the husband is strictly limited to lawful
demands against the wife, and he may make any defense
that she might herself have interposed had she been sued
when sole,? as where she was an infant when the debt
was contracted, unless it was for necessaries.4 But the
husband cannot interpose his own disabilities, and an
infant or insane husband is bound for the valid ante-
nuptial debts of his wife.’ If the husband dies or is di-
vorced before the wife’s antenuptial debts are put in
judgment against him, he or his estate is not liable, no
matter how much he may have acquired by the marriage.®
Upon discoverture by death of the husband or divorce,
however, the liability of the wife for her antenuptial
debts revives, even though she lost all that she possessed
to the husband by the marriage,’ and a joint judgment

+1 Bl. Comm. 443; Heard v. Stamford, 1 P. Wms. 409; Cole v. Seeley,
25 Vt. 220, and note thereto in 60 Am. D. 259; Powell ». Manson, 22
Gratt. (Va.) 177, and cases throughout this section. See and compare
as to the basis of the rule, Fultz ». Fox, 9 B. Monr. (Ky.) 499, with
Berley v. Rampacher, 5 Duer (N. Y.), 183. That this liability of the
husband is quite generally abolished by statute, see post, sec. 253.

? Mitchinson ». Hewson, 7 Term. R. 348; Angel v. Felton, 8 Johns.
(N. Y.) 149; Platner 2. Patchin, 19 Wis. 333; Gray ». Thacker, 4 Ala.
136. Where a woman marries, however, pending an action upon her
antenuptial contract, such action does not abate, but proceeds against
her in all respects as if she were a feme sole.

4 Cowley ». Robertson, 3 Camp. 438; Caldwell ». Drake, 4 J. J.
Marsh. (Ky.) 246.

‘ Anderson v. Smith, 33 Md. 465; Cole v. Seeley, 25 Vt. 220, 60 Am.
D. 258.

* Cole v. Seeley, supra; Butler v. Breck, 7 Met. (Mass.) 164, 39 Am.
D. 768. See post, secs. 553, 645, and cases cited.

62 Kent’s Comm. 143; Heard v. Stamford, 3 P. Wms. 409. But see
Allen ». McCullough, 2 Heisk. (Tenn.) 174, 5 Am. Rep. 27, holding
that the husband is not relieved by divorce. ,

7 Wood v. Chapman, 1 Camp. 189; Cureton v. Moore, 55 N. Car.
CONTRACTS OF MARRIED WOMEN 175

rendered against the spouses during coverture for her
antenuptial debt binds the wife after the death of the
husband.! But the husband’s liability as husband exists
and can be enforced only during coverture, and if the
wife dies before the claim is put in judgment, the sole
remedy against the husband is as her administrator,
and then only to the extent of such uncollected choses
in action as come to him in that capacity.’

181. Same—Husband’s Liability for Postnuptial Con-
tracts of Wife.

The husband is not liable as a rule upon the postnuptial
contracts of the wife unless they are made by his authority
express or implied,* or under the agency created in her
by law upon his default in rendering her support. But
where money or property has come to the hands of the
wife under her void contract, there would seem to be no
good reason why an action would not lie against husband
and wife jointly for its recovery, particularly after she
had interposed a plea of coverture,® or against the hus-

band alone where the money or property actually came
to his hand.

182. Wife’s Liability on Her Postnuptial Contracts at
Common Law.

Generally the contracts of a married woman entered
into during coverture are absolutely void at common law.

204; Parker v. Steed, 1 Lea (Tenn.), 206. That they then form a valid
consideration for her new promise, see Parker v. Cowan, 1 Heisk.
(Tenn.) 518.

1 Schouler’s Dom. Rel. (5th Ed.), sec. 57; Gray v.Thacker, 4 Ala. 136.

2See post, sec. 186; Heard v. Stamford, 3 P. Wms. 409; Williams »v.
Kent, 15 Wend. (N. Y.) 361; Day v. Messick, 1 Houst. (Del.) 328;
-Bryan v. Doolittle, 38 Ga. 255; Lamb v. Belden, 16 Ark. 539. Where
the husband after the death of the wife suffered judgment by default
for her debt, which he satisfied, he was held not entitled to reimburse-
ment from her estate. Warren v. Williams, 10 Cush. (Mass.) 80.

3 See ante, sec. 120; post, sec. 310.

4 See ante, sec. 121.

5 Shearer v. Fowler, 7 Maas. 31.
176 CONTRACTS OF MARRIED WOMEN

This results from the general doctrine that the wife is
under the cover and protection of her husband and has,
for most purposes, no legal existence independent of him.'
True, there are some authorities that appear to hold that
her contract is in effect voidable only and capable at
least of express ratification when coverture has ceased,
upon the ground, usually, that it constitutes a moral
obligation.? But the idea that a purely moral obligation
will support a promise is generally discarded, and the
cases where a woman has been held bound by her promise
made when sole to pay a debt contracted during coverture,
will with few exceptions be found to be cases where there
was a new consideration or benefit moving to her after
she became discovert and upon which her new promise
when sole was based, or where the prior contract was
chargeable in equity against her separate estate, or the
transaction in some way involved her in personal liability.’
Even her postnuptial contracts for necessaries are void at
common law,‘ and it matters not in any case that her
husband consents that she shall be bound.» Where the
wife has furnished or performed the consideration for an

1 Loyd v. Lee, 1 Strange, 94; Austin ». Davis, 128 Ind. 472, 12 L. R.
A. 120, 25 Am. St. R. 456; Bassett ». Bassett, 112 Mass. 99; Gilbert
v. Brown, 29 Ky. Law, 1248, 7 L. R. A. (N. 8.) 1053; Porterfield ».
Butler, 47 Miss. 165, 12 Am. R. 329; Musick ». Dodson, 76 Mo. 624,
43 Am. R. 780; Hayward v. Baker, 52 Vt. 429, 36 Am. R. 762; Foster
v. Wilcox, 10 R. I. 443, 14 Am. R. 698; Lee ». Lanahan, 59 Me. 479.

* Lee v. Muggeridge, 5 Taunt. 35, overruled in Eastwood v. Kenyon,
11 Ad. & El. 438; Franklin v. Beatty, 27 Miss. 347, overruled in Porter-
field ». Butler, supra; Goulding ». Davidson, 26 N. Y. 604; Rathfon v.
Locher, 215 Pa. 571.

’ Goulding v. Davidson, 28 Barb. (N. Y.) 438, 26 N. Y. 604; Worth-
ington’s Lessee v. Young, 6 Ohio, 136; Wotton ». Hele, 3 Saund. 180;
Doss v. Peterson, 82 Ala. 253; Wilcox ». Amold, 116 N. Car. 708;
Sherwin v. Saunders, 59 Vt. 499, 59 Am. R. 750. See also Parker ».
Cowan, 1 Heisk. (Tenn.) 518.

‘Shaw v. Thompson, 16 Pick. (Mass.) 198, 26 Am. D. 655; Fell v.
Brown, 115 Pa. 218, 220.

‘Canal Bank v. Partee, 99 U. 8. 325; Scarlett v. Snodgrass, 92 Ind.
262; Dorrance v. Scott, 3 Whart. (Pa.) 309, 31 Am. D. 509.
CONTRACTS OF MARRIED WOMEN 177

express promise made to herself during marriage, how-
ever, doubtless a chose in action exists in her favor jointly
with her husband if he chooses to recognize her right, or
in her favor alone when she becomes discovert.!

183. Same—Contract Based Upon Tort—Estoppel.

While a married woman at common law is generally
liable to be sued jointly with her husband for her torts
committed during coverture, whether she is liable jointly
with him in an action of deceit for inducing a contract
by falsely representing herself a feme sole, is a disputed
question. Certainly her mere failure to disclose her
coverture is no ground for permitting an action of deceit,
and by the weight of authority no action lies even though
her positive misrepresentation induced the contract.?
If a fraud of this kind were committed by the command
or procurement of the husband or were ratified by him,
no reason can be seen why he would not be liable, or why
an action would not lie for the recovery in specie of prop-
erty derived from the plaintiff by a fraudulent represen-
tation of capacity, whether the husband was a party to it
or not.®

But though a married woman cannot by the weight of
authority be estopped to plead coverture as a defense to
an action directly upon her void contract, or in an action
of deceit or otherwise for fraudulently inducing a contract
that she had no capacity to make,‘ still, where she has, by
her representations, or by her silence when it is her duty

? Neef ». Redmond, 76 Mo. 195; Chamberlain ». Robertson, 31 Ia.
410; 2 Bish. Mar. Women, sec. 250. See post, sec. 293.

2 See ante, sec. 133, and cases cited; Trust Co. v. Sedgwick, 97 U. 8.
304; Woodward »v. Barnes, 46 Vt. 332, 14 Am. Rep. 626; Prentiss ».
Paisley, 25 Fla. 527, 7 L. R. A. 640; Knowing v. Manly, 49 N. Y. 192,
10 Am. R. 346; Wolff v. Lozier, 68 N. J. Law, 103; Wirt ». Dinian, 44
Mo. App. 583.

3 See Goulding v. Davidson, 26 N. Y. 604, 606; ante, sec. 133.

4 Liverpool Adelphi Assn. v. Fairhurst, 9 Exch. 422, 429, and other
authorities, supra; Lowell v. Daniels, 2 Gray (Mass.), 161, 61 Am. Dec.
448; Gledden ». Stupler, 52 Pa. 400.

12
178 CONTRACTS OF MARRIED WOMEN

to speak, induced another to part with value for rights or
titles, independently of any contract with herself, she will
be estopped to set up an inconsistent claim of ownership
as against him.

184. Exceptions to General Rule—When Wife’s Con-
tracts Valid.

Under certain circumstances, from the practical neces-
sities of the case, the common law regards the wife as
competent to contract, and permits her to sue and be
sued and to have her own earnings as if sole. This is
true where the husband is an alien who has always resided
abroad ? or is civilly dead, either permanently or for a
time, as where he is under sentence of banishment, trans-
portation or penal servitude,’ and so where he has abjured
the realm,‘ or, what is the same thing with us, has per-
manently abandoned the wife and left the state intending
not to return.’ The rule as to abandonment has been
generally extended in this country, either by statute or
judicial construction, to cases where the deserting hus-
band is still in the state, provided there has been complete
desertion on his part. The mere fact that the wife has
deserted her husband, or even that the spouses are sepa-
rated by mutual consent, does not enlarge her power or

1 See Bisph. Eq. (8th Ed.) 293; Savage v. Foster, 9 Mod. 35; Hender-
shott v. Henry, 63 Ia. 744; Gailbraith ». Lunsford, 87 Tenn. 89, 1
L. R. A. 522. But see Lowell ». Daniels, 2 Gray (Mass.), 161, and
see post, secs. 249, 298, 312, as to various phases of the doctrine of
estoppel as applied to married women.

2 Gregory v. Paul, 15 Mass. 31; Robinson v. Reynolds, 1 Aik. (Vt.)
174, 15 Am. D. 673; Benj. on Sales (Bennett’s Notes), secs. 33, 34.

8 Ex parte Franks, 7 Bing. 762, 20 E. C. L. 160.

4See Carroll ». Blencowe, 4 Esp. 27.

5 Gregory v. Pierce, 4 Met. (Mass.) 478; Gregory ». Paul, supra;
Krebs ». O’Grady, 23 Ala. 726, 58 Am. D. 312; Wolf ». Banereis, 72
Md. 481, 8 L. R. A. 680; Bean ». Morgan, 4 McCord (S. C.), 148.

6 Beckman ». Stanley, 8 Nev. 257; Love v. Moynehan, 16 Ill. 277,
63 Am. D. 306; Norcross v. Rogers, 30 Vt. 588, 73 Am. D. 323; Davis
»v. Saladee, 57 Tex. 326. As to earnings of wife and minor children in
cases of abandonment and non-support, see post, secs. 240, 470.
CONTRACTS OF MARRIED WOMEN 179

capacity to bind herself at common law,! nor does the
fact that he is insane.?

185. Contracts, Conveyances and Gifts Between Hus-
band and Wife.

Owing to the theory of unity and the general disability
of the wife to contract or to hold property separate from
her husband, contracts, gifts and conveyances between
husband and wife are void at common law. These reasons
did not apply with full force to conveyances of land from
husband to wife, but the fact remains that they were void
at common law and conveyed no interest to her either
as against him or his creditors.* Gifts of personalty be-
tween the spouses were clearly void, for what the husband
gave the wife was still his by force of the marriage, and
what sheattempted to give him wasalready his jure mariti.‘
Transfers for a consideration followed the same rules,
and executory contracts conferred no rights upon either
spouse for neither could sue the other.’ Antenuptial
contracts between the parties were discharged by their
intermarriage at common law,® though they were good
in equity if made by way of settlement or mutual adjust-
ment of property rights in view and upon consideraticn
of marriage, as will later appear.’ It must be remembered,

1 Marshall ». Rutton, 8 T. R. 545.

2 McAnally v. Insane Hospital, 109 Ala. 109, 55 Am. St. R. 923, 34
L. R. A. 223; Shaw v. Thompson, 16 Pick. (Mass.) 198, 26 Am. D.
655.

2 Firebrass v. Symes, 2 Wils. 254; Martin v. Martin, 1 Me. 394;
Ransom ». Ransom, 30 Mich. 328; Barnum v. LeMaster, 110 Tenn.
638, 69 L. R. A. 353, and notes. See post, sec. 282.

‘Ransom »v. Pennsylvania R. Co., 48 N. Y. 212, 8 Am. R. 543;
Kuhn ». Stansfield, 28 Md. 210, 92 Am. D. 681. As to paraphernalia,
see post, sec. 190.

5 Hobbs v. Hobbs, 70 Me. 383; Peters v. Peters, 42 Ia. 182; Bassett
v. Bassett, 112 Mass. 99; Roseberry v. Roseberry, 27 W. Va. 760.

‘Chapman ». Kellogg, 102 Wis. 246; Abbott ». Winchester, 105
Mass. 115; Farley v. Farley, 91 Ky. 497.

7 See post, sec. 270; Cannel ». Buckle, 2 P. Wms. 243; Milburn ».
180 CONTRACTS OF MARRIED WOMEN

however, that the rules of the common law have been
greatly modified or entirely’ changed by statutes, and
these changes it is the purpose of a later chapter to ex-
plain.!

Ewart, 5 Term. R. (Dunn & E.) 381; Offutt v. Offutt, 106 Md. 236,

124 Am. St. R. 491.
1 See post, Chap. XX.
CHAPTER XVI

RIGHTS OF HUSBAND AND WIFE AS SURVIVORS

186. In General.

Some of the rights of husband and wife as survivors are
later discussed, but many of them have already been
examined. Thus we have seen that the right of the wife
to her choses in action unreduced to the husband’s pos-
session during coverture survives to her as widow, and
she may sue for them in her own name,' and her chattels
real are hers, unless the husband disposed of them during
coverture.2, We have also seen that though the wife
survives him, her choses in possession, and choses in ac-
tion reduced to possession by the husband during cover-
ture belong, not to her, but to the husband’s estate. The
husband’s right as survivor to the wife’s choses in action
as administrator has also been considered.* Furthermore,
as will appear in the next chapter, the surviving husband,
under the common law, takes a life estate in the lands of
his deceased wife known as curtesy, provided there was
issue of the marriage born alive that might inherit. The
widow, on the other hand, is entitled to dower, which
consists, at common law, of an estate for life in one-third
of the lands of which the husband was seized during
coverture. Dower and its modifications in modern times
are reserved for discussion in the next chapter but one,
and the right of the surviving spouse or children in real
estate constituting a homestead is mentioned still later on.‘

1 See ante, sec. 170.
2 See ante, sec. 173.
5 See ante, sec. 170.
4See post, Chap. XXTI.

181
182 SURVIVING HUSBAND OR WIFE

187. Widow’s Thirds.

Upon the death of the husband intestate, the widow
was entitled, by the English law, to one-third of what
was left of his personal estate after his debts were paid,
provided he left children or their issue, otherwise, she
was entitled to one-half the residue. This share was
known as the widow’s thirds or reasonable parts. It is
said to rest upon the English statute of distributions 22 &
23, Car. 2, c. 10, though it appears to have had an earlier
origin in the common law or in particular customs.!_ How-
ever this may be, it became settled in England, and is
common law in this country, that the husband may by will
deprive his wife of all interest in his personalty, and his
children of all interest in his real and personal property,?
save in the case of what is termed the wife’s paraphernalia,
a matter later explained.®

The law in some of our states is still substantially as
above outlined, but in most of them it has undergone
important statutory changes. Thus, in several states if
the husband dies intestate the widow as statutory heir
takes an equal share with a child or the issue of any de-
ceased child, the latter being counted as one, and in many
others she takes one-half or some other proportion of the
personal estate. For the details of this subject the local
statutes and rulings construing them must, of course, be
consulted.

188. Same—Surviving Husband’s Share.

The surviving husband, being already invested with
the wife’s personal property in possession or reduced to
his possession during coverture, no question as to his
right to it could arise at common law, even, in favor of
the deceased wife’s creditors. Since the passage of the so-
called married women’s acts, abolishing the marital rights

‘Compare Schouler’s Dom. Rel. (5th Ed.), sec. 205, and 2 BL.
Comm. 492.

2See Bl. Comm., supra; Page on Wills, sec. 19.

3 See post, secs. 190, 191.
SURVIVING HUSBAND OR WIFE 183

of the husband in the wife’s personalty, the rights of the
surviving husband depend largely upon statute. In some
states he shares the personalty equally with the children,
or takes some other definite proportion, and in some he
takes all of it, and in some none at all as against the chil-
dren or the issue of a deceased child. So, in some states,
the husband may be heir to all of the wife’s realty. In
others he takes some definite proportion of it or interest
in it either in addition to curtesy or lieu of it.!' Details
here, as in the case of the surviving wife, must, of course,
be sought in the local statutes of descent and distribution.

189. Rights of Surviving Spouse in Wife’s Equitable
Separate Estate.

Property is frequently settled upon a woman to her
separate use. The usual object of such settlements is to
enable her to enjoy a separate proprietorship in equity
during marriage, free from the husband’s common-law
marital rights. If she survives him, as the purposes of
the trust are accomplished, she usually holds the prop-
erty so settled the same as if she had never married. If
she dies before her husband, the purpose of the trust
being likewise accomplished, it follows that he takes the
estate under the common law, freed from its trust charac-
ter, and may administer the personalty ? and have curtesy
in the realty,* unless the estate was settled upon the wife
for her life only, or she has exercised her power of disposi-
tion during marriage,‘ or has disposed of the estate by will.5

190. Same—Wife’s Paraphernalia.

To be distinguished from the wife’s separate property
or separate use is what is called her paraphernalia. It
consists of such articles of apparel, adornment or personal
use, suitable to her station or degree, as she had at the

1 See post, sec. 200.

2 See ante, sec. 186.

3 See post, sec. 200.

4See post, secs. 224, 227.

5 See post, sec. 306; Taylor v. Meads, 4 De G., J. & S. 597.
184 SURVIVING HUSBAND OR WIFE

time of marriage or acquired from her husband afterward,
and which she claims or employs for that purpose during
marriage. Like her other personal property, it is her
husband’s to dispose of, and is liable for his debts during
his life.2 Unlike her other personalty in possession, how-
ever, he cannot dispose of it by will, or by gift causa
mortis, and if she survives him she can claim it absolutely
as against all but his creditors. Where it is applied upon
the deceased husband’s debts, however, she is entitled
to reimbursement in equity out of the estate.*

191. Same—What Is Deemed Paraphernalia.

The doctrine of paraphernalia is generally confined to
things of personal use that the wife owned at the time
of marriage or acquired from her husband afterward, and
gifts from third persons to her during coverture are usually
held to be her separate estate in equity,‘ or under modern
statutes. Even gifts from the husband have been held
to be separate estate, and not paraphernalia, unless it
appears that the husband did not intend them as ab-
solutely gifts, but merely for her use and adornment at
his pleasure during his life.*

192. Same—Effect of Statutes.
Whether the modern married women’s acts have by
implication abolished paraphernalia is not uniformly

1 See Howard v. Menafee, 5 Ark. 668, and cases cited; In re Harrall,
31 N. J. Eq. 101; Schouler’s Dom. Rel., sec. 208.

* Graham v. Londonderry, 3 Atk. 393; Hawkins v. Providence, etc.,
R. Co., 119 Mass. 596, 20 Am. Rep. 353; Tellexan v. Wilson, 43 Me.
186. If the husband pledges paraphernalia, his estate, if sufficient, is
liable for its redemption. Graham v. Londonderry, supra. As to
necessary apparel, see Townsend ». Windham, 2 Vesey Sr. 1; Howard
v. Menafee, supra.

* Tipping v. Tipping, 1 P. Wms. 729; Graham ». Londonderry,
supra; Howard v. Menafee, 5 Ark. 668; In re Harrall, 31 N. J. Eq. 101;
State ». Hayes, 21 Ind. 288.

‘Graham v. Londonderry, supra; Howard v. Menafee, supra.

’Graham v. Londonderry, supra; Jervis v. Jervis, 17 Beav. 566;
Farrow v. Farrow, 72 N. J. Eq. 421, 129 Am. St. R. 714.
SURVIVING HUSBAND OR WIFE 18h

decided. In most states, however, the wearing apparel
and ornaments of the wife are separate estate, or her
right thereto as against the husband’s estate is declared
by statute.

193. The Widow’s Quarantine and Allowances.

At common law, as confirmed by Magna Charta, the
widow had a right to occupy the principal mansion house
of her deceased husband, together with the curtilage,
and to be supported out of his personalty for a period of
forty days after his death, provided his estate therein
was such as to entitle her to dower under rules later ex-
plained.? This right, known as the widow’s quarantine,
is recognized with greater or less modifications in probably
all of our states, but the whole matter is too much de-
pendent upon statutes to warrant detailed discussion.*

In all states, probably, the allowances authorized to
be made for the support of the widow or the widow and
children out of the estate of the deceased husband are
regulated by statutes. Under some of them it may amount
practically to the whole estate where it is small.*

1 Articles deemed paraphernalia at common law held wife’s separate
property. Rawson ». Pa. R. Co., 48 N. Y. 216, 8 Am. R. 543; Whiton
v. Snyder, 88 N. Y. 299. That paraphernalia and the husband’s rights
therein still exist, see Hawkins v. Providence, etc., R. Co., 119 Mass.
596, 20 Am. R. 353; Smith v. Adair, 87 Mich. 62; Farrow v. Farrow,
supra.

2 See post, sec. 207; 2 Pol. & Mait. 422; 2 Scrib. on Dow. 53; Hill
v. Mitchell, 5 Ark. 610; Matter of Wachter, 16 N. Y. Misc. 137.

3 See Scrib. on Dow. 55.

4See Woerner’s Am. L. of Administration, sec. 77.
CHAPTER XVII
RIGHTS OF SURVIVING SPOUSE CONTINUED—CURTESY

194. In General—Defined.

If the husband: survives the wife, he may, by the com-
mon law, become entitled under certain conditions to
an estate in her lands for the residue of his life, called an
estate by the curtesy of England, or more shortly, “an
estate by curtesy,” or simply ‘‘curtesy.” This estate
was adopted in this country with the common law, but
has been abolished by statute in the majority of our states,
and in most others it has been much modified by statute,
as will be later explained.+

Curtesy, as at common law, may be defined as estate
for the life of the husband which accrued to him on the
death of the wife in all the estates of inheritance of which
she was actually and beneficially seized during coverture,
provided there was issue of the marriage capable of inherit-
ing born alive before her death.?

195. Stages.

Curtesy at common law has two stages: (1) the initiate
stage, which arises upon marriage, seizin of the wife and
the birth of issue, and (2) the consummate stage, which
arises out of curtesy initiate upon the death of the wife
in the husband’s lifetime.

Curtesy initiate is a vested estate,? and cannot be im-

1 See post, sec. 200.

2See 2 Bl. Comm. 126; 4 Kent’s Comm. 28. The origin of this es-
tate appears to be involved in doubt. It is thought to be founded
upon original custom in England, though a similar custom exists in
Scotland and Ireland, and is said to have existed in Normandy and
Germany. See Kent and Blackstone, above; 1 Washb. Real Prop. 128;
2 Pollock & Mait. Hist. Eng. L. 414, 418; 1 Reeves, Real Prop., sec. 445.

3 Foster v. Marshall, 22 N. H. 491.

186
CURTESY 187

paired or destroyed by subsequent legislation,! and though
it extends only to the enjoyment or usufruct, it is liable
to execution for the husband’s debts, unless statutes pro-
vide otherwise.? It may be alienated by the husband,’
and passes under a general assignment for the benefit
of his creditors.‘ These same rules apply, of course, to
curtesy consummate, which is legal vested estate in the
land for the life of the husband.

In some states, however, the husband’s right to may
consummate is subordinate to the homestead rights of
minor children,’ and where, as in many states, curtesy
is allowed only in lands of which the wife dies seized, she
having power to devise her lands or alien them at will, it
is a mere expectancy which may be modified or destroyed
by legislative act at any time before it becomes consum-
mate by her death.®

196. Requisites of Curtesy—Marriage and Issue.

A marriage in all respects valid in law will, of course,
entitle the husband to curtesy, though otherwise if it is
absolutely void. But a voidable marriage is sufficient,
provided it is voidable in the strict ecclesiastical sense,
unless its nullity is decreed in the lifetime of the wife.’

At common law issue born alive during the marriage is
absolutely necessary to curtesy. If the child is stillborn,

1 Jackson v. Jackson, 144 Ill. 274, 836 Am. St. R. 427; McNeer ».
McNeer, 142 Ill. 388, 19 L. R. A. 256; Brown v. Clark, 44 Mich. 309;
Breeding v. Davis, 77 Va. 639, 46 Am. R. 740. As to dower in this
particular, see post, secs. 203, 204.

2 Jackson v. Jackson, supra; Plumb v. Sawyer, 21 Conn. 351; Rouse
Est. v. Directors of Poor, 169 Pa. 116. But see Williams v. Baker, 71
Pa. 476.

3 Jackson v. Jackson, supra.

+In re McKenna, 9 Fed. 27; Foster ». Marshall, 22 N. H. 491.

’ Thompson v. King, 54 Ark. 9.

6 McNeer v. McNeer, 142 Ill. 388, 401, 19 L. R. A. 256. See ante,
sec. 34. Compare post, sec. 203, note 6.

71 Washb. Real Prop. 129, 172; 2 Min. Inst. 117, 118. See post,
sec. 328.
188 CURTESY

curtesy initiate does not arise,! and so where it is born so
prematurely that it cannot possibly survive except for a
very brief time.? It must be born in the lifetime of the
mother, and a living child taken from her after her death
does not entitle the husband to curtesy.* But it is not
necessary that the child should survive for any particular
time. It is enough that it lives for a moment, provided
it exists independently of the mother.‘

197. Same—Issue Must Be Capable of Inheriting.

The issue upon whose birth curtesy is predicated must
be capable of inheriting the estate in which it is claimed.
Hence, if the mother is seized of an estate tail male and
the child be female, curtesy does not arise.’ Actual in-
heritance by the issue of the marriage is unnecessary, it
being sufficient that such issue would have had a right to
inherit had it survived the mother.®

198. Same—Estate and Seizin of the Wife.

Generally, at common law, curtesy attaches only to
estates of inheritance in lands of which the wife was actu-
ally and beneficially seized during coverture.’ Seizin in
law, however, is by most courts regarded as sufficient to
give curtesy,® and this seems to be the general rule as to
wild, unoccupied or waste lands.°®

1 Goff ». Anderson, 91 Ky. 303, 11 L. R. A. 825; Rice ». Hoffman,
35 Md. 344; Nicrosi v. Phillippi, 91 Ala. 299; Marsellis ». Thalhimer,
2 Paige (N. Y.), 36, 21 Am. Dec. 66.

2 Marsellis v. Thalhimer, supra.

32 Bl. Comm. 248; Pain’s Case, 8 Coke, 34; Marsellis ». Thalhimer,
supra; Goff v. Anderson, 91 Ky. 303, 11 L. R. A. 825.

4 Doe v. Killen, 5 Houst. (Del.) 14. See, generally, Goff ». Ander-
son, 91 Ky. 303, 11 L. R. A. 825.

52 Bl. Comm. 249. See also Janmey v. Sprigg, 7 Gill (Md.), 197,
48 Am. D. 557.

6 Heath v. White, 5 Conn. 228.

71 Reeve’s Real Prop., sec. 449.

® Borland v. Marshall, 2 Ohio, 308; Todd »v. Oviatt, 58 Conn. 174,
7 L.R. A. 693; Merritt ». Howe, 5 Ohio, 307, 67 Am. D. 298; Buchanan
v. Duncan, 40 Pa. 82. But see 24 W. Va. 95.

® Davis v. Mason, 1 Pet. (U. 8.) 503; Mettler ». Miller, 129 Ill. 630,
and see note in 11 L. R. A. 826.
CURTESY 189

It should also be noted that curtesy exists in equitable
estates of inheritance and in incorporeal hereditaments,
and that so far as these are concerned, the wife is deemed
seized in fact where she is in receipt of the income and
profits.:!. The wife must be beneficially seized, however,
and if she holds as mere trustee for another ? or is a mere
intermediary through whom title is passed to another,
her husband has no curtesy.* Seizin of one with whom the
wife was tenant in common or in coparcenary would
give curtesy.4 But the husband has no curtesy where
the wife is seized as joint tenant with another, save where
the right of survivorship between joint tenants has been
abolished.* It makes no difference whether the seizin
took place before or after the birth of issue, so long as the
wife was seized during coverture.®

199. Samie—Reversions and Remainders.

If the wife’s estate is a reversion or remainder expectant
upon a particular freehold, the husband will not have
curtesy unless the particular estate determines before the
death of the wife.’ As the possession of a tenant is the
possession of the reversioner, however, the husband has
curtesy in lands that the wife owns subject to a term.®

1 Cushing v. Blake, 30 N. J. Eq. 689; Withers v. Jenkins, 14 S. Car.
597.

2 Norton v. Devitt, 122 N. Car. 755; Chew v. Commissioners, 5
Rawle (Pa.), 160; Bartlett ». Tinsley, 175 Mo. 319.

3 McClure ». Fairfield, 153 Pa. 411; Gritten v. Dickerson, 202 Ill.
372.

«Rhodes v. Robis, 9 App. Cas. (D. C.) 305; Carr v. Givens, 9 Bush
(Ky.), 679, 15 Am. R. 747.

5 Carr v. Givens, supra.

®Templeton v. Twitty, 88 Tenn. 595; Comer ». Chamberlain, 6
Allen (Mass.), 166.

7 Watkins ». Thornton, 11 Ohio, 367; Todd v. Oviatt, .58 Conn. 174,
7L. BR. A. 693; Doe v. Scuddermore, 2 B. & P. 294; Stoddard ». Gibbs,
1 Sumn. (U. 8.) 263; Furguson ». Tweedy, 43 N. Y. 543; Graves »v.
Trueblood, 96 N. Car. 496; Baker v. Fournoy, 58 Ala. 650.

8 De Gray v. Richardson, 3 Atk. 469; Carter v. Williams, 43 N. Car.
177; Furguson v. Tweedy, supra.
190 CURTESY

200. Curtesy in Equitable and Separate Estates—Stat-
utory Modifications.

The husband is entitled to curtesy in the wife’s equi-
table estates of inheritance, and this is true though they
are settled to her sole and separate use,! unless the instru-
ment creating them clearly excludes curtesy, as well as the
husband’s other marital rights.2 Modern statutes giving
married women legal separate estates do not of them-
selves abolish curtesy. But where the statute gives the
wife full power to convey and devise such estates, the
husband’s curtesy may be cut off by her conveyance or
will even in the absence of an express provision to that
effect.*

In states where the community property scheme ex-
ists curtesy is unknown. In many others it has been
expressly abolished, and some other provision for the
husband is often substituted; in still other states the
statutes restrict curtesy to such lands only as the wife had
not disposed of by will or deed,’ and in several states
birth of issue is not necessary to give curtesy initiate.®
In only a few does curtesy still exist strictly as at common
law.

1 Davis v. Mason, 1 Pet. (U. 8.) 503; Morgan ». Morgan, 5 Madd.
408; Nightingale v. Hidden, 7 R. I. 115; Stokes ». McKibben, 13 Pa.
267. Where the wife is herself a mere trustee, however, no curtesy
attaches. Welch v. Chandler, 13 B. Monr. (Ky.) 481. See ante, sec.
198, and cases in note 12.

2 Haight v. Hall, 74 Wis. 152, 17 Am. R. 122, 3 L. R. A. 857; Deming
v. Miles, 35 Neb. 739, 37 Am. St. R. 464; Nightingale ». Hidden, supra;
Pool v. Blakie, 53 Ill. 495. Compare Dugger v. Dugger, 84 Va. 130.

’ Tong v. Marvin, 15 Mich. 60; Breeding ». Davis, 77 Va. 639, 46
Am. R. 740.

4Stimp. Am. Stat. Law, secs. 3202, 3301; Heisen v. Heisen, 145 Ill.
658, 21 L. R. A. 434; McNeer v. McNeer, 142 Ill. 388, 19 L. R. A. 256.

5 Oatman v. Goodrich, 15 Wis. 652; Tong ». Marvin, supra. That
the husband’s curtesy may be barred by the wife’s deed but not by
will see Breeding v. Davis, 77 Va. 639; Moore v. Darby, 6 Del. Ch. 193,
13 L. R. A. 346.

®See statutes and decisions in Pennsylvania, Ohio and Nebraska.
See Kingsley v. Smith, 14 Wis. 360,
CURTESY 191

201. How Curtesy Is Defeated or Barred—Divorce.

Curtesy may be defeated or barred in a variety of ways
in addition to those already mentioned. It is barred at
common law by a decree of nullity of marriage during the
lifetime of the wife, or by absolute divorce.? But in some
states it is preserved by statute upon divorce a vinculo
for the wife’s fault.’ Divorce from bed and board leaves
curtesy unaffected in the absence of statute.4

By a contract or settlement between husband and wife,
clearly intended to have that effect, the husband may be
barred of his curtesy, whether it was entered into before
or during marriage.®

Where the husband joins in a conveyance of his wife’s
lands his curtesy is effectually barred.®

The alienage of the husband was a bar to curtesy at
common law, but is no longer so in most states under
statutes.’ Curtesy initiate, as well as consummate, may
be barred by the statute of limitations.®

The wife cannot bar the husband’s curtesy by will or
deed without his consent, unless the statute or the instru-
ment under which she holds empowers her to do so.°®

1See post, sec. 328.

22 Nelson’s Div. & Sep., sec. 1030; Barrett v. Failing, 111 U. 8. 523;
Wheeler v. Hotchkiss, 10 Conn. 225.

3 2 Nelson’s Div. & Sep., supra; Meacham v. Bunting, 156 Ill. 586, 47
Am. St. R. 239.

4See Ellison v. Mobile, 53 Ala. 538; Gallagher ». Gallagher, 101 Wis.
202.

5 Charles v. Charles, 8 Gratt. (Va.) 486, 56 Am. D. 155; Hooks ».
Lee, 42 N. Car. (8 Ired. Eq.) 83.

6’ Hayden v. Pierce, 165 Mass. 359; Meacham »v. Bunting, 156 IIL. -
586, 47 Am. St. R. 239, 28 L. R. A. 618.

7 See post, sec. 714.

8 Shortall ». Hinckley, 31 Ill. 227. Compare Jones ». Coffey, 109
N. Car. 515.

53 See note to Todd ». Oviatt in 7 L. R. A. 696.
CHAPTER XVIII
RIGHTS OF SURVIVING SPOUSE CONTINUED—DOWER

202. Definition.

Dower, by the common law, is defined as the provision
which the law makes for a widow out of the lands or tene-
ments of the husband for her support and the nurture of
her children. More specifically, by that law, it is a life
estate in one-third of the lands whereof her husband was
seized in severalty or in common of an estate of inherit-
ance, at any time during coverture, and which her issue
might by any possibility have inherited.’

In England, dower now exists as it did at common law,
except as modified by statute which restricts the widow’s
right to such lands as were not disposed of by the husband
in his lifetime, either by deed or devise.®

In the United States, dower as at common law was the
only kind originally recognized. In some states it is still
retained with little modification, but in others it has been
greatly changed or wholly abolished and some other pro-
vision for the wife substituted in its stead. Usually this
is some absolute interest or fee simple in one-third, one-
half, or some other proportion of the husband’s lands.4
We will therefore consider the principal features of dower

14 Kent’s Comm. 35; 1 Washb. Real Prop. 146; Randall v. Krieger,
23 Wall. (U. 8.) 147. ‘

2See Williams on Real Prop. 231 et seq.; Flynn v. Flynn, 171 Mass.
312. By custom in certain localities in England the widow was dowable
in more or less than one-third of her husband’s lands, as a fourth, a
half, or even the whole of them. 2 Bl. Comm. 132.

3 Stat. 3 & 4 Wm. IV, Chap. 105.

4See post, sec. 209.

192
DOWER 193

as at common law, noticing some of the more important
changes in the law of this country later on.

203. Stages of Dower—Inchoate Dower—Power of
Legislature Over.

Dower has at least two stages. During the life of the
husband it is termed inchoate, and is sometimes said to
be in the nature of mere contingent expectancy which
does not rise to the dignity of a vested right. At this
stage it may therefore be increased, diminished or wholly
abolished at the will of the legislature. !

It is a valuable right, however, and unless in some way
barred or released is an incumbrance on the husband’s
lands within the general meaning of that term in the law
of conveyancing,” and its relinquishment is a valuable
consideration for a contract or conveyance in favor of the
wife.®

204. Same—Consummate Dower.

Upon the death of the husband, the wife surviving,
her dower is said to become consummate. Though it is
not as yet an estate in the land, and the widow cannot
enter without the consent of the heir or bring ejectment,‘
and she cannot alien at law, nor can it be taken in execu-
tion against her, it is nevertheless a vested right or interest
in the nature of a chose in action and cannot be impaired
by subsequent legislation.®

1$trong v. Clem, 12 Ind. 37, 74 Am. D. 200; Bennett v. Harms, 51
Wis. 251; Randall ». Krieger, 23 Wall. (U. S.) 148; McNeer v. McNeer,
142 Ill. 388, 19 L. R. A. 256, overruling earlier cases in that state;
Moore v. New York, 8 N. Y. 110, 59 Am. Dec. 473. But see Helfestein
v. Meredith, 84 Ind. 1; In re Alexander, 53 N. J. Eq. 100. See as to
curtesy, ante, sec. 195.

2 Porter v. Noyes, 2 Greenl. (Me.) 22, 11 Am. D. 30; McCord ».
Massie, 155 Ill. 123; Runnells ». Webber, 59 Me. 488; Crowley v. Lum-

‘ ber Co., 66 Minn. 400.

3 Bullard ». Briggs, 7 Pick. (Mass.) 538, 19 Am. Dec. 292; Caldwell
v. Bower, 17 Mo. 564.

‘See Farnsworth v. Cole, 42 Wis. 403, as to mesne profits,

5 Burke v. Barron, 8 Iowa, 132,

13
194 DOWER

205. Same—Assigned Dower.

What is sometimes described as the third or assigned
stage of dower is where the widow’s share in her husband’s
estate is ascertained and set apart to her. When this is
done the widow has a life estate in severalty in the lands
so assigned, and holds them, in general, upon the footing
of other life tenants, and may alien them accordingly,! and
her interest may be taken for her debts.

There are several methods of assigning dower, but by
the most common one the widow’s share in her husband’s
lands is set off to her according to value by metes and
bounds. But other modes of assignment are permissible.
Thus, where the property is in its nature indivisible, or
cannot be divided without damage to the whole, she may
be given a share of the rents and profits in lieu of the
land itself, or a gross sum under statutes, or an interest in
common with the others interested in the estate.”

206. Requisites of Dower—Marriage, Seizin and
Death of Husband.

To entitle the wife to dower there must have been a
valid marriage.* If it was merely voidable and not void,
however, dower attaches unless it was avoided during the
husband’s life.‘ ,

The wife is dowable only in lands of which the husband
was beneficially seized at some time during the marriage.
It is not necessary that he should have been seized at the
time of his death. If he was beneficially seized for any
length of time, however short, the wife is entitled to
dower. This rule has been changed by statute in some

1 Summers v. Babb, 13 Ill. 483; Stevens ». Stevens, 3 Dana (Ky.),
371.

* As to assignment and recovery of dower, see, generally, 2 Kerr on
Real Prop., secs. 999 et seq.; 1 Washb. Real Prop. 222.

* Jenkins ». Jenkins, 2 Dana (Ky.), 102, 26 Am. D. 437.

‘ Price v. Price, 124 N. Y. 598, 12 L. R. A. 359; Bonham », Badgley,
7 Ill. 622.

* Phelps v, Phelps, 143 N. Y. 197, 25 L. R. A. 625.
DOWER 195

states, however, so that dower attaches only to lands
whereof the husband was seized at the time of his death.!
Seizin in law is as effectual, however, as seizin in deed, or
actual seizin.2 But the husband must be seized to his own
use and not as mere trustee for another.* Neither will a
mere transitory seizin under which the husband has acted
as a mere conduit for the conveyance of the land from his
grantor to a third person be sufficient.‘

The husband’s seizin must have been sole. Hence if he
was a mere joint tenant with others the wife cannot
claim dower save where the incident of survivorship in
such tenancies is abolished.’ Estates held in common,
however, are subject to dower.®

The natural, as distinguished from the civil, death of
the husband is a prerequisite of consummate dower, unless
statutes provide otherwise.’ His death may be proved in
the usual way, and will be presumed as in other cases from
his absence unheard of for the requisite length of time.*®

207. In What Property Wife Is Dowable.

At common law the wife is entitled to dower only on
estates of inheritance in lands and tenements. Inde-
pendent of statute, therefore, there is no dower in life

1Stimp. Am. Stat. Law, sec. 3202e.

24 Kent’s Comm. 37, 84; 1 Scrib. on Dow. 252 et seq.; Green ».
Liter, 8 Cranch (U. 8.), 247; Pledger v. Ellerbe, 6 Rich. (8. Car.) 266,
60 Am. D. 123. See Eldridge v. Forrestal, 7 Mass. 253.

3 Stevens v. Smith, 4 J. J. Marsh. (Ky.) 64, 20 Am. D. 205; Madigan
v. Walsh, 22 Wis. 501.

‘Holbrook ». Finney, 4 Mass. 566, 3 Am. D. 243; Edmonson 2.
Welch, 27 Ala. 578. As to purchase money, mortgages, see post,
sec. 208.

® Maybury ». Brien, 15 Pet. (U. 8.) 21; Holbrook v. Finney, supra;
Reed v. Kennedy, 2 Strob. (5. Car. L.) 67.

6 Holbrook ». Finney and Reed v. Kennedy, supra.

7 Platner ». Sherwood, 6 Johns. Ch. (N. Y.) 118; Mich. Comp. Laws
(1897), sec. 8639. Compare Rev. Stat. Wis., 1898, sec. 2373, giving
dower where husband imprisoned for life. .

® Whiting v. Nicholl, 46 Ill. 230, 92 Am. D. 248; Rice v. Lumby, 10
Ohio, 596.
196 DOWER

estates,! nor in estates for years, unless as in some states,
statutes have annexed to certain long terms the incidents
of freeholds.?

Neither was the widow dowable out of equitable es-
tates,® a rule that has been changed in England and most
of the United States so as to give the widow dower in
vested descendible equitable estates,* and since in all
states a mortgage is now regarded as a mere security for
the payment of a debt and the mortgagor as retaining a
legal estate in the land, his wife has dower in mortgaged
lands as against all but the mortgagee and those claiming
under him.*®

In England, partnership real estate is usually treated
as personalty for all purposes, * and the widow of a deceased
partner is not entitled to dower therein. In this country,
however, she is usually entitled to dower in partnership
lands after, but not before, firm debts are paid and the
balances between the partners are adjusted.” The widow

1 Thompson v. Vance, 1 Met. (Ky.) 669.

* Goodwin v. Goodwin, 33 Conn. 314; Whetmire ». Wright, 22 S.
Car. 446, 53 Am. R. 724.

* 1 Scrib. on Dow. 383; Small ». Proctor, 15 Mass. 495.

4Scrib. on Dow. 399, 406, 413 et seq.; Stevens ». Smith, 4 J. J.
Marsh. (Ky.) 64, 20 Am. D. 205; Atkins v. Merrill, 39 Ill. 62; Pulling’s
Estate, 97 Mich. 375; Pritts v. Ritchey, 29 Pa. 71. Even where the
right to dower in equitable estates is denied the wife has been held
entitled to dower where the husband has paid the purchase money
though no deed has been made to him.

5 Simonton v. Gray, 34 Me. 50; McCabe v. Bellows, 7 Gray (Mass.),
148, 66 Am. D. 467; Mills v. Van Voorhees, 20 N. Y. 412. See post,
next sec.

6 1 Lindley on Part. 343.

7 Darrow v. Calkins, 154 N. Y. 518, 61 Am. St. R. 637, 48 L. R. A.
299; Robinson Bank v. Miller, 153 Ill. 244, 46 Am. St. R. 883, 27
L, R. A. 449; Brewer v. Brown, 68 Ala. 210; Strong ». Lord, 107 Ill. 25.
It seems, however, that the widow of a deceased partner in whom the
title to partnership real estate was vested, alone or jointly with his co-
partners, has no dower therein if it was comveyed during the con-
tinuance of the partnership though without her joinder in the deed.
Woodward-Holmes Co. ». Knudd, 58 Minn. 236, 49 Am. St. R. 503,
DOWER 197

has dower in such mines and quarries, and in such only,
as are open and have been worked upon the husband’s
land.1_ Where lands have been exchanged, the widow
cannot claim dower in both parcels, but must elect between
them unless she joined in the deed, when she will be re-
stricted, of course, to the lands acquired by the exchange.?

208. Priority Between Dower and Other Claims and
Incumbrances.

At common law the husband cannot by any act of his
during marriage, without her concurrence, deprive the
wife of her right of dower if she survives him. His sole
grantee or mortgagee, therefore, takes subject to the.
widow’s dower.’ Purchase money mortgages, however,
are an exception to this rule, and if lands are conveyed to
a husband during coverture, who thereupon, and as part
of the same transaction, gives a mortgage back for the
purchase money, the widow, though she does not join in
the mortgage, is not entitled to dower as against the
mortgagee and those claiming under him. She is dowable
only in the equity of redemption, for as against the mort-
gagee, the husband had no beneficial seizin.t The same
doctrine is generally applied in favor of one who, though

27 L. R. A. 340; Dickey »v. Shirk, 128 Ind. 278. Compare Pugh ».
Currie, 5 Ala. 446; Fairchild v. Fairchild, 64 N. Y. 471.

1 Gaines v. Green Pond, etc., Co., 33 N. J. Eq. 603; Coates ». Cheever,
1 Cow. (N. Y.) 460, 462. As to mines and quarries not open and
worked she is in the position of any other life tenant, and cannot re-
move mineral without being guilty of waste. Lenfers ». Henke, 73 Il.
405, 24 Am. R. 263. As to the right of a tenant in dower to cut timber,
particularly upon wild and uncultivated land, see Bond v. Godsey, 99
Va. 564; Owen v. Hyde, 6 Yerg. (Tenn.) 334, 27 Am. D. 467.

2See 1 Scrib. on Dow. 284.

3 Higginbotham v. Cornwell, 8 Gratt. (Va.) 83, 56 Am. D. 130;
Runke v. Hanna, 6 Ind. 20. See also Johnson »v. Miller, 47 Ind. 376,
17 Am. R. 699.

‘McCauley ». Grimes, 2 Gill (Md.) & J. 323, and cases cited;
Mayberry ». Brien, 15 Pet. (U. 8.) 39; Wheatley v. Calhoun, 12 Leigh
(Va.), 269, 37 Am. D. 654; Butler ». Thornburg, 141 Ind. 152; Jones ».
Parker, 51 Wis. 218; Mills ». Van Voorhees, 20 N. Y. 412.
198 DOWER

not the vendor, has advanced the purchase money and
taken a mortgage to secure its repayment.!

A lien for purchase money, where it exists, is upon the
same footing as to dower as a purchase mortgage.”

The husband’s deeds and mortgages executed before
marriage entitle the grantee to hold free from any claim
for dower, unless the transaction was in fraud of the
intended wife’s marital rights, a matter elsewhere ex-
plained.’

The rights of the husband’s general creditors are usually
subordinate to the widow’s right of dower unless their
claims, by judgment or otherwise, became liens upon the
land before marriage.*’ The widow’s dower usually has
priority over a mechanic’s lien unless the claim upon which
such lien is based arose before marriage.®

209. Same—Statutory Changes.

In England and in a number of states, while the rules
as to dower are otherwise retained substantially as at
common law, the widow has dower, as we have seen, only
in lands of which her husband died seized. In many
states common-law dower is abclished, and the widow
usually takes a certain proportion of the husband’s real
estate in fee, and in some states similar provision is made
for the husband in lieu of curtesy.’”. In the community
states dower is unknown.®

1 Jones v. Parker, supra; Bunting v. Jones, 78 N. Car. 242; Butler ».
Thornburg, supra.

? Noyes v. Kramer, 54 Ia. 22; Venable v. Wabash Ry. Co., 112 Mo.
103, 18 L. R. A. 68.

3 See post, sec. 276; 1 Washb. Real Prop. 203.

‘ Dudley ». Easton, 104 U. 8.99; Sandford v. McLean, 3 Paige (N. Y.),
117, 23 Am. D. 773; Motley v. Motley, 53 Neb. 375, 68 Am. St. R. 608.

5 Schaeffer v. Weed, 8 U. S. 511; Gove v. Cather, 23 Ill. 634, 76 Am.
D. 711.

®See ante, sec. 202. This is the rule for non-resident wives in
several states. See for example statutes in Conn., Ga., Mich., Kan.,
Neb., Tenn. and Wis.

7 See statutes in Ia., Ind., Kan., Minn., Neb., Wash., Wyo. and Utah.

® The present status of dower, curtesy and homestead in this country
DOWER 199

HOW DOWER IS BARRED

210. Joinder of Wife in Husband’s Deed.

Except as stated in the preceding paragraphs, the
husband cannot, by his conveyance or other sole act dur-
ing coverture, bar the wife’s dower without her consent.
When this consent is given, however, in the manner pre-
scribed by law, the grantee or mortgagee holds the land
free from any claim of dower, provided the wife’s only
disability was coverture.*

In the absence of statute authorizing it, a wife cannot
bar her dower by release to her husband during coverture.?

Statutory provisions as to the mode of releasing dower
and its statutory substitutes must be strictly complied
with. The usual method is for the wife to join as grantor
in the husband’s conveyance of the land. Where the stat-
ute requires acknowledgment, the wife’s failure to ac-
knowledge is fatal to her release,* and so when it requires
her separate examination by the acknowledging officer
and no such examination is had.‘

The wife’s attempt to bar dower by her separate con-
veyance is futile in the absence of statute. Neither, it °
seems, can she act by attorney in barring dower unless
expressly authorized by legislation.®

For further details on this important subject works on

is shown by an abstract of state laws in Jones’s Legal Forms (6th Ed.),
819.

18ee Davis v. Davis, 61 Me. 395; Chase’s Case, 1 Bland’s Chan.
(Md.) 206, 17 Am. D. 277; Leavitt v. Lamprey, 13 Pick. (Mass.) 383, 23
Am. D. 685. As to barring dower of insane wife, see post, sec. 648.

2Stephenson ». Osborne, 41 Miss. 119, 90 Am. D. 358; Rowe »v.
Hamilton, 3 Me. 63; Wilber v. Wilber, 52 Wis. 298; Dakin v. Dakin, 97
Mich. 284.

3 Maynard ». Davis, 127 Mich. 571; Grove v. Todd, 41 Md. 633,
20 Am. R. 76.

4 Hand v. Werdner, 151 Pa. 362.

5 Moore v. Tisdale, 5 B. Monr. (Ky.) 352; French v. Peters, 33 Me.
396. See Wis. Stat., 1898, sec. 2222.

6 Lewis v. Coxe, 5 Harr. (Del.) 401; Bertschy ». Bank, 89 Wis. 473;
Wis. Stat., 1898, sec. 2223.
200 DOWER

real property should be consulted and local statutes and
decisions carefully examined.

211. Other Acts and Circumstances Defeating Dower.

Dower may be barred or forfeited by other acts and
circumstances beside the joinder of the wife in her hus-
band’s deed. The most important of these in modern
times are the following:

1. By alienage of husband or wife.

2. By the wife’s elopement and adultery without divorce.

3. By divorce.

4..By jointure and other postnuptial or antenuptial
agreement or settlement.

5. By election of the widow to take under the provi-
sions of her husband’s will.

6. By dedication of lands to public use, or their con-
demnation under the right of eminent domain.

7. By estoppel.

8. By the statutes of limitations.

212. Same—Alienage.

Alienage of either husband or wife barred all claim for
dower at common law.! But in the majority of states,
by constitutional or statutory provision, resident aliens,
at least, are upon the same footing as citizens with respect
to property and property rights, and where this is the
case the common-law rule is generally deemed superseded.
In some states, however, the statutes make distinctions
between resident and non-resident wives with respect to
dower, without regard to alienage in the strict sense of
allegiance to a foreign power.”

213. Same—Wife’s Adultery and Elopement.

By the common law the adultery of the wife was no
bar to dower. By statutes in England, however, if the
wife voluntarily elopes and commits adultery her dower

1 See post, sec. 714.
2 See ante, sec. 209, note 6; Bennett ». Harms, 51 Wis. 251.
DOWER 201

is barred unless her husband afterward becomes reconciled
and receives her back.! The English statutes have been
received as common law in some of our states,” in others
rejected by statute or decisions,? while in still others
similar statutes have been enacted.

214. Same—Divorce.

At common law the wife was not barred of her dower
by a divorce a mensa et thoro, though under the peculiar
provisions of particular statutes the rule may be other-
wise. But a divorce a vinculo matrimonii, or a decree of
nullity, bars dower at common law.* Statutes in many
states have changed this rule, at least where the wife is
the injured party, so as to give her dower immediately in
the same manner as if the husband were dead.’

215. Same—Jointure.
Dower may be barred by jointure, legal or equitable.®
A strict legal jointure is defined as a competent livelihood

1 Stat. 13 Eliz. 1, Chap. 34; Stat. West. II, Chap. 34 (13 Edw. 1 Stat.
1); Hetherington v. Graham, 6 Bing. 135, 19 E. C. L. 31, reviewing the
English authorities.

2 Coggswell ». Tibbetts, 3 N. H.'41; Elder v. Reel, 62 Pa. 308, 1 Am.
R. 414; Bell ». Nealy, 1 Bail. L. (8. Car.) 312, 19 Am. D. 686.

3 Reynolds v. Reynolds, 24 Wend. (N. Y.) 193; Van Cleaf v. Burns,
118 N. Y. 554, 16 Am. St. R. 782; Lakin ». Lakin, 2 Allen (Mass.), 45;
Bryan v. Bacheller, 6 R. I. 543, 78 Am. D. 454.

4Stimp. Am. Stat. Law, sec. 3246; Stegall v. Stegall, 2 Brock. (U. 8.)
256; Phillips 1. Weiseman, 131 N. Car. 402. Mere desertion or separa-
tion without adultery does not affect dower in the absence of statute.
See Sistare v. Sistare, 2 Root (Conn.), 468. As to “living in adultery,”’
see Gaylor ». McHenry, 15 Ind. 383; Goss v. Froman, 89 Ky. 318, 8
L. R. A. 102.

5 Gallager v. Gallager, 101 Wis. 202, and authorities cited. But see
Stat. Wis., sec. 2373, Laws of 1909.

6 Price v. Price, 124 N. Y. 598, 12 L. R. A. 359; Hood ». Hood, 110
Maas. 468.

7 Tatro v. Tatro, 18 Neb. 395, 53 Am. R. 820. But see Van Cleaf ».
Burns, 118 N. Y. 549; Adams ». Storey, 135 Ill. 448, 11 L. R. A. 790.
See post, sec. 326.

* For a brief history of jointure, see 1 Reeves, Real Prop., sec. 510.
202 DOWER

of freehold for the wife of lands and tenements, etc., to
take effect in possession or profit after the decease of the
husband, for the life of the wife at least.1_ In addition to
this it must be made before marriage to the wife herself,
and not in trust, and in express satisfaction of the whole
of her dower.?, When thus made it was a complete bar
to her subsequent claim for dower whether she assented
to or accepted it or not,’ and even though she was an
infant when the settlement was made.‘ It is now quite
generally provided by statute, however, that an infant or
non-consenting wife may still elect to claim her dower in
spite of a legal jointure, and where the settlement is made
during the coverture she might elect- between dower and
the benefits of such settlement.§

Strict or legal jointures are now but little known, at
least in this country, where what is called equitable join-
ture is not uncommon. This last differs from legal join-
ture in the fact that it need not consist of real property,
and it consists of any beneficial and certain provision for
the wife, not amounting to a legal jointure, made before
marriage and intended to be in lieu of dower.* The ef-
fect of such a provision, if consented to by an adult wife
before marriage, or by an infant wife under proper protec-
tion and advice, is to bar the widow’s dower absolutely in
equity.” And it is now quite generally held, and it is
sometimes provided by statute, that if the wife, being an
adult, assents before marriage to any pecuniary arrange-
ment for her benefit in lieu of dower, beyond the mere
consideration of marriage itself, her dower will be abso-

1 Coke on Litt. 36b; 2 Bl. Comm. 137.

22 Bl. Comm. 188; Coke on Litt. 36b.

§ Drury v. Drury, 2 Eden, 64; 1 Washb. Real Prop. 316, 317; Me-
Cartee v. Teller, 2 Paige (N. Y.), 511.

‘Drury ». Drury, supra; Caruthers v. Caruthers, 4 Bro. C. C.
500.

5 See Stat. 27 Hen. VIII, secs. 4, 7.

6 Dyke v. Randall, 2DeG., M. &G. 209. See Bottomly v. Spencer,
36 Fed. 732.

7 Drury v. Drury, 2 Eden, 60; 1 Reeves, Real Prop. 513.
DOWER 203

lutely barred.'. Such agreements, however, are closely
scrutinized in favor of the wife for fraud or undue in-
fluence.?

A postnuptial settlement by the husband upon the wife
intended to be in bar of dower, though void at common
law, will in equity put her to her election between the
benefit of its provisions and her dower.*

Upon all questions of jointure, whether legal or equi-
table, careful attention should be paid to local statutes
and decisions.

216. Same—Provisions of Husband’s Will.

By the common law the right of dower is absolutely
beyond the control of the husband. He cannot deprive
his widow of it, either by deed or will. A devise or be-
quest by a husband to his wife, however, expressly or by
fair and reasonable construction intended to be in lieu
of dower, puts the widow to her election whether to claim
her dower or under the will,‘ and this is often the statutory
rule as to other rights under the law. There is no pre-
sumption, however, at common law that a devise or be-
quest from husband to wife was intended to be in lieu of
dower, unless it arises out of the terms of the will itself.®

1 Gelzer v. Gelzer, 1 Bailey’s Eq. (S. Car.) 387, 23 Am. D. 180; Pierce
o. Pierce, 71 N. Y. 154, 27 Am. R. 22; Stilley v. Folger, 14 Ohio, 610.
Compare Forwood »v. Forwood, 86 Ky. 114. The retention of her
separate property is usually deemed a sufficient consideration to sup-
port such agreement. McGee v. McGee, 91 III. 548.

2 Moran ». Stewart, 173 Mo. 207; Pierce v. Pierce, supra. See ante,
sec. 6; post, sec. 276.

2 See Lively ». Paschal, 35 Ga. 218, 89 Am. D. 282; Wilber v. Wilber,
52 Wis. 298; House v. Fowle, 20 Oreg. 163.

‘Vernon’s Case, 4 Co. Rep. 1, 4a; Gibson v. Gibson, 1 Drew, 42,
17 Eng. L. & Eq. 352; Palmer v. Voorhis, 35 Barb. (N. Y.) 479; Hibbs
2». Union Cent. Life Ins. Co., 40 Ohio St. 554.

5 Lewis v. Smith, 9 N. Y. 502, 61 Am. D. 706; Wood ». Lee, 5 T. B.
Monr. (Ky.) 50; Hillard ». Binford, 10 Ala. 987; Church ». Bull, 2
Denio (N. Y.), 430, 43 Am. D. 754. Unless the husband’s intent that
a devise or bequest shall be in lieu of dower is express, the will must
show a plain incompatibility between the claim for dower and the
204 DOWER

This rule has been changed by statute in a number of
states and in some any devise, and in others any devise
or other provision, will put the widow to her election,
unless it appears by the will that the testator intended
that she should have the benefit of both it and her dower.!
Among the rules governing her election the cardinal one
doubtless is that she must act freely and without fraud or
concealment as to the value of the interests at stake.’

217. Same—Lands Dedicated to Public Use.

When, during the life of the husband, his lands are dedi-
cated to the public use, whether by his voluntary act or
under the right of eminent domain, the widow’s dower is
barred,* though equity may, in case of condemnation,
recognize and protect her share in the proceeds.‘

If the husband’s lands are taken for public use after
his death, the widow’s dower attaches in equity to the
compensation paid therefor, for she has been deprived of
a vested interest.°

218. Estoppel to Claim Dower.

The widow may be estopped to, claim dower. A com-
mon case is where, after the death of the husband, she
expressly or impliedly consents that his lands be sold free
from her claim of dower, or what amounts to the same

provisions of the will. See Vernon v. Vernon, 53 N. Y. 351; Alling 2.
Chatfield, 42 Conn. 276.

13 & 4 Wm. IV, Chap. 105, and statutes in Mass., Me., Pa., Ind.,
Mich., N. Car. and Wis; Scrib. on Dow., Chap. XVI, secs. 110,
113.

2 Stone v. Vandermark, 146 Ill. 312; Ludington v. Patton, 111 Wis.
208; Bisph. Eq., secs. 186, 187. The time and mode of election are
usually prescribed by local statutes which should of course be con-
sulted.

3 Baker v. Atchison, etc., R. Co., 122 Mo. 396.

42 Kerr on Real Prop., sec. 1079, and cases cited; Simar ». Canaday,
53 N. Y. 304, 138 Am. R. 528. Contra, Flynn v. Flynn, 171 Mass. 312,
68 Am. St. R. 427, 42 L. R. A. 98, and note. ;

5 Bonner v. Peterson, 44 Ill. 257; In re Hall’s Est., L. R. 9 Eq.
179.
DOWER 205

t

thing, free from all claims and incumbrances,! As a rule,
however, the wife cannot during coverture release her
dower save in the manner prescribed by statute, and
her conveyances otherwise executed, or her mere silence
or inaction, will not operate by way of estoppel against
her claim for dower even in equity.? This rule -is not
universally adhered to, particularly where, the wife’s
conduct amounts to a fraud inducing the purchaser to
act, as where she denies her marriage to the grantor, ex-
pressly or by marrying another.’ Mere neglect of a wife
separated from her husband to assert her marital rights,
however, will not have this effect.‘

219. Dower Barred by Lapse of Time.

At common law lapse of time alone is no bar to the
widow’s dower, nor is her dower barred by a possession
adverse to her husband in perhaps the majority of our
states. By the English statute (8 and 4 Wm. IV, Ch. 27)
the widow is barred of dower unless she successfully
asserts her rights within twenty years, and this is a com-
mon limitation with us. In many states, however, she
is barred after a much shorter period. Details on this

1 Sweaney v. Mallory, 62 Mo. 485; Smiley v. Wright, 2 Ohio, 506;
Dougeray v. Topping, 4 Paige (N. Y.), 94. See also Reed ». Morri-
son, 12 Serg. & R. (Pa.) 18. Her acts or omissions must be such as
are calculated to mislead the purchaser, and must have that effect.
Mere silence of the wife, though she is present at the sale, will not
estop her, unless she knows that the sale is free from dower and she has
an opportunity to speak. Heth v. Coke, 1 Rand. (Va.) 344; Owen v.
Slatter, 26 Ala. 547, 62 Am. D. 745; Tennant v. Stoney, 1 Rich. Eq.
(8. Car.) 222, 44 Am. D. 213.

2 Mason v. Mason, 140 Mass. 63; Rockwell v. Rockwell, 81 Mich.
493; Martin v. Martin, 22 Ala. 104.

3 See Dunlap v. Thomas, 69 Ia. 358; Williams v. Wells, 62 Ia. 740;
Brown v. Kerns, 6 Ohio N. P. 68; Sweaney »v. Mallory, 62 Mo.
485

“Cazier v. Hinchey, 143 Mo. 203; Dunn ». Portsmouth Sav. Bank,
103 Ia. 588; Martin v. Martin, supra; Elder v. Reel, 62 Pa. 308, 1 Am:
R. 414. Compare De France v. Johnson, 26 Fed. 891; Gilbert ».
Reynolds, 51 Ill. 513.
206 DOWER

point should be sought in special works.1 It should be
borne in mind, however, that statutes of limitation seldom
begin to run against a widow until the death of the hus-
band unless something transpires to give her an immediate
cause of action for the protection of her dower, as where
foreclosure proceedings under a mortgage given before
marriage or for purchase money are commenced, and she
is not made a party to the proceedings.’

1See 1 Reeves, Real Prop., sec. 507; 2 Scrib. on Dow., Chap. XX;
2 Wood on Lim., Chap. XXI.

2 Mackenna ». Fidelity Trust Co., 184 N. Y. 411, 3 L. R. A. (N.S.)
106, and note.
CHAPTER XIX

HUSBAND AND WIFE IN EQUITY—WIFE’S EQUITABLE SEPA-
RATE ESTATE, SEPARATE TRADE AND EQUITY TO A SET-
TLEMENT

220. In General—Wife’s Equitable Separate Estate.

The common-law scheme of coverture, as we have seen,
precluded separate and independent ownership in the
wife. Ali her personalty and the rents and profits of her
realty were her husband’s to enjoy and dispose of at his
pleasure or caprice, and she was practically without rem-
edy even for her own support and the support and nurture
of her children in case of his abandonment or his neglect
or inability to discharge his duties to her or them, no mat-
ter how ample the fortune he received at her hands. It
was to remedy these and similar hardships and injustices
that equity, that great medium by which the earlier Eng-
lish law was so often brought into harmony with progress-
ing social sentiments and needs, established, about the end
of the seventeenth century, through the medium of trusts,
a separate proprietorship in the wife utterly at variance
with the established doctrines of the common law, which
has since been known as her equitable separate estate.!
While the legislation considered in another chapter has
rendered the creation of these equitable estates largely
unnecessary, or perhaps in some states impossible, exist-
ing rights and titles may still rest upon the doctrine of
the wife’s equitable separate estate, and in a few jurisdic-
tions such interests are still created, at least in what
would not otherwise be separate property of the wife.”

1See Spence’s Eq. Jur. 596; Snell’s Eq. (Am. Ed.) 317.

2 See Dietrich ». Hutchinson (1901), 73 Vt. 134, 87 Am. St. R. 698;
Brashfield v. Brashfield (1896), 96 Tenn. 580.

207
208 THE WIFE IN EQUITY

221. Incidents of Wife’s Equitable Separate Estate.

In jurisdictions where the wife’s equitable separate
estate was fully recognized, the following were its usual
incidents:

1. She could sue and be sued in equity with respect
to it, and might sue her husband as well as third persons
where it was necessary for its recovery or protection,
being regarded in equity with respect to it as in the posi-
tion of a feme sole.?

2. She could dispose of it by gift, conveyance or will,
unless restricted by the instrument creating it.’

3. It was frequently liable in equity for her debts and
engagements.’

222. Wife’s Equitable Separate Estate a Trust Es-
tate—How Created.

The wife’s separate estate in equity is always a trust
estate, and the older authorities recognized its existence
only where the conveyance was to a third person as trustee
for her separate use. But the modern doctrine is that
though no trustee be named, if it appears that there is an
intention to create a separate estate in the wife, equity
will uphold it even to the extent of regarding the husband
as trustee for her benefit.®

The equitable separate estate of the wife may be created
by either antenuptial or postnuptial settlement proceeding
from the husband or a third party for her separate use,®
or by will in which property is devised or bequeathed to
her separate use, either before or after marriage.’ It may
also arise out of her own property by her own act or con-

1See post, secs. 291, 293, 294.

2 See post, sec. 224.

3 See post, secs. 224, 225. =

4 Stewart’s Hus. & Wife, sec. 202; Harvey v. Harvey, 1 P. Wms. 125.

5 Bennett v. Davis, 2 P. Wms. 316; Jones v. Clifton, 101 U. S. 225;
Dezendorf v. Humphreys, 95 Va. 473; Gordon v. Eans, 97 Mo, 587, 598,

® See post, sec. 269.

7 Lee v. Prieaux, 3 Bro. Ch. 381, 385.
THE WIFE IN EQUITY 209

veyance before marriage, provided there is no fraud upon
the husband’s marital rights,! or it may arise out of her
so-called ‘‘equity to a settlement”’ as later explained.” If
the settlement is of personalty it is usually valid though
oral,’ and the settler’s declarations are admissible to prove
his intent. A settlement of lands must be by writing,
however, and whenever the settlement, whether of lands
or personalty, is by written intrument, it must contain apt
words to create a separate use in the wife, or the intent
to create it must appear upon a fair construction of the
whole writing.’ It is also settled that the increase, profits
or income of the wife’s separate estate is separate estate
also, even after it is paid into her hands.®

223. Same—What Language Creates.

In order to create an equitable separate estate in the
wife, the intention of the donor to exclude the husband’s
marital rights in her favor must clearly appear from the in-
strument creating it.’ Without considering the numerous

1 Simmons »v. Simmons, 6 Hare, 352; See post, sec. 276.

2 See post, secs. 320 et seq.

3 Chew v. Beall, 13 Md. 348, 360; Jackson v. McAlily, 1 Spear’s Eq.
303, 40 Am. D. 620; Porter v. Bank, 19 Vt. 410; Walton v. Broaddus,
6 Bush (Ky.), 328.

4See Willford v. Phelan, 120 Tenn. 590.

5 Morrison v. Thistle, 67 Mo. 596; Beauford v. Collier, 6 Humph.
(Tenn.) 487, 44 Am. D. 321. A settlement of personal property by
the husband or wife, however, will be presumed to be to her separate
use, for otherwise it would be without legal effect in the absence of
statute. Denning v. Williams, 26 Conn. 226, 68 Am. D. 386; Bene-
dict ». Montgomery, 7 Watts & S. (Pa.) 238, 42 Am. D. 230; Whitten
v. Whitten, 3 Cush. (Mass.) 194. See also Slanning 2. Style, 3 P. Wms.
334, Land has been treated in equity as settled to the wife’s separate
use, though not expressly so limited, where the husband had long
abandoned her and permitted her to deal with it as her own. Curtis
v. Simpson, 72 Vt. 322.

6 Picquet v. Swan, 4 Mason (U. §.), 443; Kirkpatrick ». Buford, 21
Ark. 268, 76 Am. D. 363, 366, note.

71 Perry on Trusts (4th ed.), secs. 647 et seq.; Lippincott v. Mitchell,
94 U. S. 769; Hackett ». Moxley, 68 Vt. 210; Holliday v. Hively, 198

14
210 THE WIFE IN EQUITY

and sometimes contradictory decisions on this point, it is
enough to say that such phrases as, “to her sole and sepa-
rate use,” or ‘‘io her own use, independent of her husband,”
are sufficient for this purpose and were commonly em-
ployed.! But the mere intervention of a trustee is in-
sufficient where there was no clear intention to exclude
the husband’s marital rights.’

224. Power to Charge or Alienate.

After much doubt and dispute it became settled in
England that unless specially restrained by the instru-
ment creating it, a married woman had full power to
alienate her equitable separate property or interest or to
charge it with her debts, without the concurrence or con-
sent either of her husband or her trustee, practically as a
feme sole? This rule was substantially adopted in a
number of our states,* with the modification in some that
if a particular mode of alienation is prescribed by the in-
strument of settlement it is exclusive.’ It has been held
in other states, however, that a married woman is in-
capable of disposing of or charging her equitable separate
estate, except so far as she is empowered to do so by the

Pa. 335; Richardson v. DeGiverville, 107 Mo. 422, 28 Am. St. R. 426;
Smith v. Wells, 7 Met. (Mass.) 240, 39 Am. D. 773, note.

1 See Bisph. Eq. (8th Ed.), sec. 100; Perry on Trusts, supra; Stewart’s
Hus. & W., sec. 200; Nix v. Bradley, 6 Rich. Eq. (8. Car.) 48; Smith v.
Wells, supra.

2 Hunt v. Booth, 1 Freem. Ch. 215, and authorities, supra.

3 Johnson v. Gallagher, 3 De G., F. & J. 494; Hulme v. Tenant, 1
Bro. C. C. 16; Taylor v. Meads, 4 De G., J. & 8. 597 (69 Eng. Ch.);
Stead v. Nelson, 2 Beav. 245; Jackson v. Hobhouse, 2 Merivale, 483.
See for additional English authorities, Ewing ». Smith, 3 Desaus. (S.
Car.) 47, 5 Am. D. 557, note.

4 Jaques ». M. E. Church, 17 Johns. (N. Y.) 549, 8 Am. D. 447;
Turner v. Shaw, 96 Mo. 22, 9 Am. St. R. 319; Cadematore v. Granger,
160 Mo. 352; Todd ». Lee, 15 Wis. 400; Collins ». Rudolph, 19 Ala.
616; Imlay v. Huntington, 20 Conn. 146; Cooke ». Husbands, 11 Md.
492.

_  'Cooke ». Husbands, supra. But see Jaques 7. Methodist Ch.,

supra. See also Snell’s Eq. (Am. Ed.) 331.
THE WIFE IN EQUITY 211

instrument creating it.1_ It is the law of still other states
that while the wife may, unless expressly restrained,
freely incumber or dispose of personal property settled
to her separate use, she cannot dispose of or charge the
corpus of realty so settled as distinguished from its in-
come.?

225. Same—Wife’s Debts and Contracts tn Equity.

It must not be assumed from the fact that the wife
could have a separate ownership in equity that she could
contract generally. Her contracts never bound her per-
sonally, either at law or in equity. They bound only her
equitable separate estate, and that only in equity and
not at law.? But unless restrained by a clause against
anticipation, it was well settled in England and in most
of our states that, as a necessary incident of her jus des-
ponendi, the wife has power to charge her separate equi-
table estates with her debts and contracts so long as her
intention to do so appears,‘ and this rule has been applied
to a suretyship for her husband,® or even for a stranger.®

1 wing »v. Smith, 3 Desaus. (S. Car.) 417, 5 Am. D. 557; Cookson ».
Toole, 59 Ill. 515; Palmer v. Rankin, 30 Ark. 771; Metcalf ». Cook, 2
R. I. 355; Thomas v. Folwell, 2 Whart. (Pa.) 11, 30 Am. D. 230;
Maurer’s App., 86 Pa. 380; Morgan v. Elam, 4 Yerg. (Tenn.) 375;
Kirby »v. Miller, 4 Coldw. (Tenn.) 4; Doty v. Mitchell, 9S. & M. 435;
Carter ». Eveleigh, 4 Desaus. (S. Car.) 19, 6 Am. D. 596.

2 Penn v. Whitehead, 17 Gratt. (Va.) 508, 94 Am. D. 478; Price ».
Planter’s Bank, 92 Va. 468, 32 L. R. A. 214; Burnett ». Hawpe’s Exr.,
25 Gratt. Va. 481; Patton ». Merchants’ Bank, 12 W. Va. 587; Radford
v. Carwile, 13 W. Va. 572, reviewing a large number of English and
American cases.

* Owens v. Dickenson, 1 Cr. & Ph. 48.

4 Hulme v. Tenant, 1 Bro. C. C. 16, 1 Lead. Cas. in Eq. (4th Am.
Ed.) 679, and note; Johnson v. Gallagher, 3 De G., F. & J. 494; Owens
0. Dickenson, supra; Collins v. Levenberg, 19 Ala. 682; Lewis v. Yale,
4 Fla. 418; Deering v. Boyle, 8 Kan. 525, 12 Am. R. 480; Lillard ».
Turner, 16 B. Monr. (Ky.) 374; Metropolitan Bank ». Taylor, 62
Mo. 338; Jaques v. M. E. Church, 17 Johns. (N. Y.) 549, 8 Am. D. 447.

5 Owens v. Dickenson, supra.

6 Heatley v. Thomas, 15 Vesey, 596; Bradford », Greenway, 17 Ala.
797, 52 Am. D. 208.
212 THE WIFE IN EQUITY

But some courts adopt a narrower rule and permit the
wife to charge her equitable separate estate with such
contracts only as are entered into for its benefit.’ In
some other states it seems that the contract will be good
only where it is for the benefit either of the wife personally
or her estate,” and in others she is absolutely incompetent
to charge her separate estate unless such power is expressly
conferred by the instrument creating it.*

What, under the rule permitting a wife to charge her
equitable separate estate, shall be sufficient evidence of
her intention to do so seems uncertain. By the English
rule such intention is to be gathered from all the circum-
stances of the case, and it appears to be settled that inas-
much as she cannot bind herself personally at law, she is
deemed when she enters into a contract to have intended,
prima facie at least, to bind her separate estate in equity, *
and this presumption will be strengthened by the fact
that she is known to be living apart from her husband
without receiving support from him.’ Most_of our courts

have adopted this doctrine,* while others require that the
ites

1 Hepburn v. Warner, 112 Mass. 271, 17 Am. R. 86; Musson 2.
Trigg, 51 Miss. 172; Adams v. Mackey, 6 Rich. Eq. (S. Car.) 75; Owens
v. Johnson, 8 Baxt. (Tenn.) 265. .

2 Homeopathic Mut. Life Ins. Co. v. Marshall, 32 N. J. Eq. 103;
Yale v. Dederer, 18 N. Y. 265, 72 Am. D. 503; Dale v. Robinson, 51
Vt. 20, 31 Am. R. 669; Elliott ». Gower, 12 R. I. 79, 34 Am. R. 600;
Perkins v. Elliott, 8 C. E. Green (N. J.), 526.

3 Hepburn v. Warner, and other cases, supra, note 6.

42 Story’s Eq., sec. 1400; Hulme v. Tenant, 1 Bro. C. C. 16, over-
ruling earlier cases; Owens v. Dickinson, 1 Cr. & Ph. 48; Tullett v.
Armstrong, 4 Beav. 319; Murray ». Barlee, 3 Mylne & K. 209; Mat-
thewman’s Case, L. R. 3 Eq. Cas. 781.

‘ Johnson v. Gallagher, 3 De G., F. & J. 521; Johnson v. Cummins,
16 N. J. Eq. 97, 84 Am. D. 142; Dodge v. Knowles, 114 U. S. 430;
Chaffee v. Brown, 109 Cal. 211.

6 Lillard v. Turner, 16 B. Monr. (Ky.) 374; Vanderheiden v. Mallory,
1 N. Y. 452; Phillips ». Graves, 20 Ohio, 371, 5 Am. R. 675; Miller ».
Newton, 23 Cal. 554, 564. Intention to charge separate property
‘presumed from execution of note or other written contract. Coates v.
Robinson, 10 Mo. 757; Machar »v. Burroughs, 14 Ohio, 519; Williams
THE WIFE IN EQUITY 213

intention to charge the separate estate shall appear from
the contract itself,! and still others that it must so ap-
pear unless the contract is for the benefit of the estate it-
self rather than for the benefit of the wife generally.?

226. Same—What Property Chargeable—After Ac-
quired Property.

After considerable doubt and difficulty it seems to be
settled in England that where a wife renders her separate
estate liable in equity, her debt or engagement is charge-
able only upon such estate as she had when it was con-
tracted or entered into, and not upon separate property.
afterward acquired, and this is the rule in some of our
states.? In others separate property owned at the time
of the hearing, or even such as was acquired after decree,
is chargeable in equity.‘

227. Duration of Equitable Separate Estate.

If a separate estate is settled upon a spinster she may
deal with it freely as a single woman until her marriage,
even in the face of a clause against anticipation, such
clause being operative only during coverture, for it is not
a trust estate until the necessity for its equitable character

». Urnston, 35 Ohio St. 296, 35 Am. R. 611; Burch v. Breckenridge,
16 B. Monr. (Ky.) 482, 63 Am. D. 553.

+ Hepburn v. Warner, 112 Mass. 271, 17 Am. R. 86. See Yale ».
Dederer, 18 N. Y. 265, 22 Id. 450, 72 Am. D. 503, 78 Am. D. 216, and
strictures thereon in Todd v. Lee, 15 Wis. 365. See also Schouler’s
Dom. Rel. (5th Ed.), sec. 148.

2 Kantorowitz v. Prather, 31 Ind. 92, 99 Am. D. 587; Wilson ».
Jones, 46 Md. 349; Homeopathic, ete., Ins. Co. ». Marshall, 32 N. J.
Eq. 103; Dale ». Robinson, 51 Vt. 20, 31 Am. R. 669; Yale ». Dederer,
22 N. Y. 450, 78 Am. D. 216.

5 Pike v. Fitzgibbon, 17 Ch. D. 454; Ankeney ». Hannon, 144 U. S.
118, where the English cases are reviewed; Parker v. Marks, 82 Ala.
548; Filler ». Tyler, 91 Va. 458; Kocher v. Cornell, 59 Neb. 315; Van-
derheiden v. Mallory, 1 N. Y. 452.

‘Rourk ». Murphy, 12 Abb. (N. S.) 402; Todd ». Ames, 60 Barb.
(N. Y.) 454; Todd »v. Lee, 15 Wis. 365; Taggart v. Muse, 60 Miss.
870.
214 THE WIFE IN EQUITY

arises! When a wife becomes discovert, however, the
legal title to her equitable separate estate has generally
been held to vest absolutely in her, upon the ground that
the trust estate is terminated by execution of the trust,
subject to be revived by her remarriage as against her
second husband,? unless it was limited to her in view of
the particular marriage. In this last case it will not revive
as against her second husband unless it was settled with
a clause against anticipation.’ If the wife dies first, her
equitable separate personalty not validly disposed of by
will vests in her husband as administrator,‘ and her sepa-
rate realty descends to her heirs subject to her husband’s
curtesy,® unless the trust was for the life of the wife only,®
or unless it was to continue after her death for the benefit
of her children or other designated survivors,’ or she has
lawfully devised it. Generally the liability of the separate
estate held during marriage is not affected by discov-
erture, but continues for debts contracted during mar-
riage.®

The wife’s equitable separate estate may be lost or ex-

1 Tullett v. Armstrong, 1 Beav. 1, 4 M. & Cr. 377; Snell’s Eq. (Am.
Ed.) 335; Duke 2. Duke, 81 Ky. 308.

2 Tullett v. Armstrong, supra; Moore v. Morris, 4 Drew, 33, 5 W.
R. 383; Gordon v. Eans, 97 Mo. 587; Cooney ». Woodburn, 33 Md. 320.

3 Moore »v. Morris, supra. As to whether a separate use can be
created for a feme sole that will come into operation upon her mar-
riage so as to prevent the husband’s marital rights from attaching has
been the subject of some disagreement in this country. By the weight
of authority it may the rule here being the same asin England. See
Bisph. Eq. (8th Ed.), secs. 105, 106; Quinn’s Est., 144 Pa. 449; Steasey
v. Rice, 27 Pa. 75, 67 Am. D. 447.

4 Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229; Proudley »v. Fielder,
2 Mylne & K. 57.

5 See ante, sec. 200.

6 See ante, sec. 189.

7 Bailey v. Wright, 18 Ves. 49; Baker v. Nall, 59 Mo. 265.

8 See post, sec. 306.

® Price v. Planter’s Bank, 92 Va. 468, 32 L. R. A. 214; Nix v. Bradley,
6 Rich. Eq. (8. Car.) 48; Robinson v. Randolph, 21 Fla. 629, 58 Am. R.
692. See 55 Me. 284; 133 Mass. 175.
THE WIFE IN EQUITY 215

tinguished during coverture, as where the wife, having
power of anticipation either by law or the instrument
of settlement, subjects it to her debts or otherwise dis-
poses of it. And if she allows her husband to so use and
employ it that it becomes mixed with his other funds be-
yond the possibility of identification, or to so deal with
it as to constitute a basis for his personal credit, it will
be extinguished, at least in favor of his creditors,’ though
the husband may still be liable to account to her for it,?
unless the circumstances show a free and voluntary gift
to him.’ If the husband dies, his widow holds her separate
estate free from the operation of any restraint upon
alienation.

228. Pin Money.

A ‘pin money trust” is designed to provide the wife
with annual means for dress, decoration and ornament.
It is not merely an allowance to her for these purposes,
but a trust created by a settlement. It was very common
in England when a marriage took place among persons
of large fortune, but has been little considered here. It
differs from the ordinary trust for the wife’s separate
use in the fact that while the latter belongs to the wife
absolutely, and the husband has no right to question its
expenditure, in the pin money trust he has an interest,
at least where it is created by him, that the money shall
not be hoarded by the wife, but shall be expended annu-
ally for his credit and gratification as well as for hers.
Accordingly the court will not, during cohabitation, aid
the wife in collecting arrears beyond a year, nor can her
personal representatives enforce the trust.

1Bump’s Fraud. Conve. (4th ed.), sec. 286, and notes. See, also,
post, sec. 300.

2 Carpenter v. Carpenter, 27 N. J. Eq. 502.

3 Shirley v. Shirley, 9 Paige (N. Y.), 363; Jaques v. M. E. Church,
17 Johns. (N. Y.) 549, 8 Am. D. 447.

4See Dwight’s Pers. & Pers. Prop. 219; Howard ». Digby, 2 Cl. &
F. 634, 670, 8 Bligh, 224; Aston v. Aston, 1 Ves. 264; Miller ». William-
son, 5 Md. 219; Slanning »v. Style, 3 P. Wms. 334.
216 THE WIFE IN EQUITY

229. Equity Rules as to Wife’s Separate Trade—-Hus-
band’s Liability.

By the common law the wife has no legal power to
engage in trade or business, and her trading contracts,
like her other engagements, are absolutely void, subject
to exceptions already mentioned in case of the alienage
or civil death of the husband or his abjuration of the
realm.!

Naturally, however, when the doctrine of equitable
separate property arose, married women sought to embark
their capital in trade, and equity has sustained their
trading contracts to a considerable extent, both in Eng-
land and here. The general result of the cases under
this head, apart from statute, may be summed up as
follows:

1. The wife has power to trade, at least with the con-
sent of her husband, and equity, when such consent is
given, will charge her trading contracts upon her sepa-
rate estate, in the absence of a restraint upon antici-
pation in the instrument by which such estate is settled
upon her.2 The property embarked in her separate
trade or business and the profits of such trade or busi-
ness will be protected as her separate property as against
the husband * and his creditors, at least where his con-
sent to her trading is founded upon a valuable consid-
eration. *

2. If the husband permits the wife to engage in trade
he is presumptively liable for her debts contracted therein

1See ante, sec. 184. The only other exception was by the custom
of London whereby a wife might become a sole trader and bind her-
self as such. See Benj. on Sales (Bennett’s Notes), sec. 35; Beard ».
Webb, 2 B. & P. 124.

2 See ante, secs. 224 et seq.; Richardson v. Merrill, 32 Vt. 27; Part-
ridge v. Stocker, 36 Vt. 108, 84 Am. D. 664; Todd ». Lee, 15 Wis. 365;
Penn v. Whitehead, 17 Gratt. (Va.) 503, 94 Am. D. 478.

3 Story’s Eq., sec. 1387; James v. Taylor, 43 Barb. (N. Y.) 530; Penn
v. Whitehead, supra; Todd v. Lee, supra.

‘Story’s Eq., sec. 1387; Penn v. Whitehead, supra; Todd ». Lee,
supra.
THE WIFE IN EQUITY 217

on the ground of an implied agency. But if it appears
that credit was given to the wife exclusively,! or the debt
was contracted on the credit of her separate estate, or
the husband did not consent to or acquiesce in her sepa-
rate trading, he is not liable.?

The wife’s power to carry on a trade or engage in busi-
ness under statutes is considered later on.?

230. Wife’s Equity to a Settlement.

The wife’s equity to a settlement presents another
striking example of the interference by courts of chancery
with the operation of the strict rules of the common law.
The rule of equity is substantially this: that while what-
ever property of the wife the husband can reduce to his
possession without the aid of chancery is his absolutely
by the common law,‘ still, if he cannot reduce her prop-
erty real or personal to his possession without such aid,
he will be compelled, as the price of relief, to make a proper

-settlement out of such property for the benefit of the
wife, or the wife and children; unless he has already ade-
quately provided for them.’ This jurisdiction, while
seldom invoked now, owing to modern statutes, was
originally exercised pursuant to the maxim that he who
asks equity must do equity, and is upheld upon that
ground and upon general grounds of justice and expediency
too broad and obvious to require comment.’ The wife’s
equity is available, not only against the husband, but
against all those claiming under him or in his right, in-

1 Bentley v. Griffen, 5 Taunt. 356, 1 E. C. L. 187.

2 Story’s Eq., sec. 1387, and note; 2 Roper’s Hus. & W. 174, 175.

3 See post, sec. 254.

4 Kenney v. Udall, 5 Johns. Ch. (N. Y.) 464, 3 Cow. (N. Y.) 590.
And see post, next sec.

5’ Murray v. Lord Elibank, 1 Lead. Cas. in Eq. 670; Kenney v. Udall,
supra; Howard v. Moffatt, 2 Johns. Ch. (N. Y.) 206; Tucker v. Andrews,
13 Me. 124; Poindexter v. Jeffries, 15 Gratt. (Va.) 363.

6 Bell v. Bell, 1 Ga. 640; Jewson v. Moulson, 2 Atk. 417; Duvall ».
Farmers’ Bank, 4 Gill & J. (Md.) 282, 23 Am. D. 558; Helms »v. Fran-
ciscus, 2 Bland’s Ch. (Md.) 579, 20 Am. D. 402.
218 THE WIFE IN EQUITY

cluding purchasers for value and creditors, even though
he is a bankrupt.?

231. Same—Jurisdiction—Property Affected.

The wife’s right to a settlement is enforced solely in
equity,? and by the earlier rule could be enforced only
when the husband himself, or those claiming in his right,
invoked the aid of the court for the recovery of equitable
property or interests.*? But the modern rule seems to be
that the wife may herself invoke the aid of the court
against the husband or his assignees by bill in the name
of her trustee or next friend.4 And there is much authority
for the further rule that even where the husband, or any-
one claiming under him, sues at law for her purely legal
choses in action, equity will enjoin the action at the
suit of the wife until a proper settlement is made upon
her.®

"Macaulay ». Phillips, 4 Ves. 15; Jewson v. Moulson, supra; Duvall
v. Farmers’ Bank, supra; Kenney »v. Udall, 5 Johns. Ch. (N. Y.) 478,
3 Cow. (N. Y.) 590;, Poindexter v. Jeffries, 15 Gratt. (Va.) 363; Tidd
v. Lister, 3 De G., M. & G. 857.

2 Salter v. Salter, 80 Ga. 178, 12 Am. St. R. 249.

* Bosvil v. Brander, 1 P. Wms. 459; Howard v. Napier, 3 Ga. 192;
Holloway v. Connor, 3 B. Monr. (Ky.) 422. Upon the ground that the
husband’s right in lands of the wife is purely legal, her right to claim
an equity out of lands of which he has become legally seized in her
right jure mariti is generally denied. Poindexter v. Jeffries, 15 Gratt.
(Va.) 363; Tobin ». Dixon, 2 Met. (Ky.) 422; Corley v. Corley, 22 Ga.
178. But see Curtis ». Simpson, 92 Vt. 232.

4 Bisph. Eq. (8th Ed.) 110; Hlibank v. Montolieu, 5 Ves. 737; Wallace
v. Auldgo, 1 De G., J. & 8. 643; Salter v. Salter, 80 Ga. 178, 12 Am. St.
R. 249; Tabor v. Tabor, 98 Ky. 173; Helms ». Franciscus, 2 Bland’s
Ch. (Md.) 579, 20 Am. D. 402; Kenny ». Udall, 5 Johns. Ch. (N. Y.)
473, 3 Cow. 590; Barron v. Barron, 24 Vt. 390; Poindexter ». Jeffries,
15 Gratt. (Va.) 363. But see Jackson »v. Hill, 25 Ark. 223,

5 Van Epps v. Van Deusen, 4 Paige (N. Y.), 74, 25 Am. D. 516;
Barron v. Barron, supra; Moore ». Moore, 14 B. Monr. (Ky.) 259;
Rees v. Walters, 9 Watts (Pa.), 94. See also Curtis ». Simpson, 7
Vt. 232. Contra, Wiles ». Wiles, 3 Md. 1, 56 Am. D: 733. See alse
Doed ». Griger, 2 Gratt. (Va.) 103, and Helms ». Franciscus, supra;
Kenney v. Udall, supra.
THE WIFE IN EQUITY 219

232. Rights of Children—Waiver and Forfeiture by
Wife.

The wife will not be permitted to claim an equity to a
settlement for herself and not for her children, unless
they have been otherwise adequately provided for,! and
when it is once made it descends to them, though they
have no equity independent of her where no steps have
been taken to enforce it prior to her death,? and she may
voluntarily waive her equity upon examination in open
court and thus bar their rights as well as her own at any
time before the settlement has been approved by the
court. Her adultery probably bars her right, at least
unless the husband connived at it or condoned it and
received her back.

233. Amount of Settlement.

The amount to be settled on the wife under her equity
has been held to be largely within the sound discretion
of the court under all the circumstances of the case;
and it has been not uncommon to give her the whole
fund, particularly where it was small and no other provi-
sion had been made for her, or the husband was insolvent,
or had abandoned her, or was guilty of other grave mis-
conduct.

1 Murray v. Elibank, 13 Ves. Jr. 1; Osborne v. Morgan, 9 Hare, 434;
Helms ». Franciscus, supra. ;

2 De la Garde v. Lempriere, 6 Beav. 344; Wallace v. Auldgo, 1 De G.,
J. & 8. 643; Lloyd ». Williams, 1 Madd. 244; Helms v. Franciscus,
supra; Bell v. Bell, 1 Ga. 640.

. 3 Perry on Trusts, sec. 627; Murray ». Elibank, 10 Ves. Jr. 88, 13
Id. 6; Hill v. Hill, 3 Strob. Eq. (8. Car.) 98; Sawyer ». Baldwin, 20
Pick. (Mass.) 378.

4See Fry v. Fry, 7 Paige (N. Y.), 462.

5 Helms v. Franciscus, 2 Bland’s Ch. (Md.) 579, 20 Am. D. 402; Du-
vall ». Farmers’ Bank, 4 Gill & J. (Md.) 282, 23 Am. D. 558; Udall
v. Kenney, 5 Johns. Ch. (N. Y.) 464, 3 Cow. (N. Y.) 590; Phillips ».
Hassell, 10 Humph. (Tenn.) 197; Poindexter v. Jeffries, 15 Gratt.
(Va.) 363.

6 Boxall ». Boxall, 27 L. R. Ch. D. 227; Udall v. Kenney, supra;
220 THE WIFE IN EQUITY

234. Effect of Modern Statutes on Wife’s Equity.

The enactment of modern statutes enlarging the prop-
erty rights of married women to the extent of practically
abolishing the husband’s marital rights therein have
naturally done away with the law on this subject by
making the interference of equity unnecessary. Still,
questions to the wife’s equity may arise in states where
the husband’s rights to some extent survive.

Helms »v. Franciscus, supra; Browning v. Headley, 2 Rob. (Va.) 340,
40 Am. D. 755; Howard ». Moffatt, 2 Johns. Ch. (N. Y.) 206.

' 1There are few recent cases involving the wife’s equity to a settle-
ment. See Hart v. Leete (1891), 104 Mo. 315.
CHAPTER XX

HUSBAND AND WIFE UNDER MODERN STATUTES

235. History and Nature of Married Women’s Acts.

The legislation about to be considered has been directed,
not to the personal rights and duties arising out of mar-
riage, for these have been little changed,! but to the prop-
erty rights and interests of husband and wife with a view
to placing them upon a footing of at least approximate
equality by enlarging the rights and capacities of the wife,
or rather by restoring to her, in part at least, the capaci-
ties of a single woman of which marriage, at common
law, divested her. This legislation began something over
sixty years ago, and has progressed steadily and with but
little fluctuation toward the complete emancipation of
the wife so far as independent ownership of property is
concerned, superseding the necessity of a resort to equity
and the clumsy, uncertain and expensive expedients of
marriage settlements, which in times past have been al-
most wholly confined to the wealthy, prosperous and
educated classes, as distinguished from that vast majority,
who begin married life in humble circumstances.?

Yet it must not be thought that these so-called “‘mar-
ried women’s acts’? have generally placed wives altogether
upon the footing of single women, at least so far as con-
tractual capacity is concerned, though they are broad
enough for that purpose in a few states and apparently
tend to become so in all.* Their effect in nearly all of

1See Snyder v. People, 26 Mich. 108.
2The first radical American statute was enacted in New York in
1848. English legislation begun in 1870 did not culminate in a thor-
oughly revolutionary statute until 1882. See 45 & 46 Vict., Chap. 75.
3 See post, secs. 243 et seq.
221
222 THE WIFE UNDER STATUTES

our states, however, is to secure to the wife a separate
legal ownership of property, real and personal, thus dis-
pensing with the necessity for formal settlements and a
resort to equity for recognition and protection of her
proprietary rights, and to confer upon her the power,
more or less complete, to make such contracts as may be
necessary for the beneficial enjoyment of what is thus
made legally her own. In many states her power to deal
with it or dispose of it is plenary and complete, while in
others her power to dispose of it is subject to the con-
currence of the husband and must be exercised with special
formalities prescribed by law.

236. Constitutionality.

While the husband cannot, by subsequent legislation,
be deprived of strict rights of property already vested in
him by virtue of the marriage, the married women’s acts
are valid so far as they exclude him from acquiring rights
or interests in property subsequently accruing to the wife,
though the marriage subsists when the statute is passed.
Such statutes do not take away vested rights or impair
the obligation of contracts.:. This is of course true of
statutes which merely deal with rights, whether of person
or property, under such marriages as may be afterward
contracted.? It has even been held, contrary perhaps to
the better opinion, that the common-law right of the hus-
band to reduce the wife’s choses in action to his possession
during marriage is not a vested right, and that a statute
is valid which destroys it as to all such choses not so
reduced when the act takes effect.? So it has been held

1 Winn ». Riley, 151 Mo. 61, 74 Am. St. R. 517; Arnold v. Willis,
128 Mo. 145; Leete v. State Bank, 141 Mo. 574; Allen ». Hanks, 136
U.S. 300; Baker’s Exrs. ». Kilgore, 145 U. 8. 487; McNeer v. McNeer,
142 Ill. 388; Dubois ». Jackson, 49 Ill. 49; Westervelt ». Gregg, 12
N. Y. 202, 62 Am. D. 160. See as to dower, ante, sec. 203. As to
curtesy, see ante, sec. 195.

2See Maclay v. Love, 25 Cal. 367, 85 Am. D. 133; Rugh »v. Otten-
heimer, 6 Oreg. 231, 25 Am. R. 513; Rose v. Sanderson, 38 Ill. 247.

§ Trapnell ». Conklyn, 37 W. Va. 242, 38 Am. St. R. 30; Dilley ».
THE WIFE UNDER STATUTES 223

that an act that takes from the husband his right to the fu-
ture profits of property belonging to the wife but in which
he has no vested interest or estate, is constitutional and
valid both as against him and his creditors.1 Clearly,
however, the legislature can in no case deprive the hus-
band of choses in possession vested in him by virtue of the
marriage, or the fruits of choses in action reduced to pos-
session by him prior to the act; * nor can it deprive him
of an estate in the wife’s lands once legally vested in him
by virtue of the marriage,* or his creditors of existing
liens upon his interest therein.‘

237. Construction of Married Women’s Acts.

As to what principles should govern the construction
of the married women’s acts the courts are not wholly
agreed. _They will always give effect, however, to the
plain meaning of their terms. In cases of doubt, most
courts treat such acts as in derogation of the common law
and construe them strictly, so far as the marital rights of
the husband are destroyed or abridged. To this extent
they will be deemed to repeal the common law only so
far as their language plainly requires.° As to the rights

Henry’s Exrs., 25 N. J. L. 302; Alexander v. Alexander, 85 Va. 353,
1 L. R. A. 125; Perey v. Cocknell, 53 Fed. 873, 881; Mellinger’s
Admr. v. Bausman, 45 Pa. 522; Clark ». McCreary, 12S. & M. (Miss.)
347. Contra, Leete v. State Bank, 141 Mo. 574; Dunn ». Sargent, 101
Mass. 336; Ryder v. Hulse, 24 N. Y. 372; Stearns ». Weathers, 30 Ala.
712; Westervelt v. Gregg, 12 N. Y. 202, 62 Am. D. 161.

1 Baker’s Exrs. v. Kilgore, 145 U. S. 487.

2 Buchanan v. Lee, 69 Ind. 117; Leete v. State Bank, 141 Mo. 584,
115 Id. 184.

3 Rose v. Rose, 104 Ky. 48, 41 L. R. A. 352, 84 Am. St. R. 430, 439,
and note; Westervelt v. Gregg, 12 N. Y. 202, 62 Am. D. 161; Burson’s
App., 22 Pa. 164; Rose ». Sanderson, 38 Ill. 248; Bonknight ». Epting,
118. Car. 71. Compare Rugh v. Ottenheimer, 6 Oreg. 231. See Long
». Barnes, 87 N. Car. 329.

‘Bonknight v. Epting, supra. See also Rose v. Sanderson, 38 Ill. 248.

5 See Compton v. Pierson, 28 N. J. Eq. 229; Cole v. Van Riper, 44
Ill. 58; Spier ». Opfer, 73 Mich. 35, 16 Am. St. R. 556; Gordon ».
Gordon, 183 Mo. 294. But see Billings ». Baker, 28 Barb. (N. Y.) 328;
King ». Davis, 137 Fed. 222.
224 THE WIFE UNDER STATUTES

plainly intended to be secured to the wife, however, they
are usually deemed remedial and construed with at least
fair liberality in furtherance of the legislative intent,
particularly to the extent that a liberal construction will
promote the interests of the wife and the beneficial enjoy-
ment of what they are plainly intended to give her.’ As
a rule, however, courts will not give a retrospective con-
struction to constitutional or statutory provisions con-
ferring additional rights and powers upon married women,
unless their language plainly demands it.”

238. Scope of the Statutes—What Property Is Statu-
tory Separate Estate—Property Owned at Time of Mar-
riage.

No close and accurate classification of the married
women’s acts is possible within reasonable limits of space,
and any detailed citation of the decisions construing
them is out of the question. Even if such classification
and citation were practicable, it would soon become mis-
leading and inadequate by reason of legislative changes
that are constantly taking place, and will probably con-
tinue to be made until the husband and wife are every-
where upon a footing of substantial equality as to property
rights. Each statute can be properly understood only
in the light of its own peculiar language, history and
judicial interpretation. Indeed it may be said that each
state has its own peculiar system so far as property rights
of the spouses and the contract capacities of the wife
are concerned. In most of them it presents a commingling

1 Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 614, 622, 1 Am. Rep.
601; De Vries ». Conklin, 22 Mich. 255; Burr v. Swan, 118 Mass. 588;
Dunbar v. Meyer, 43 Miss. 679; Buck ». Buck, 12 Ky. Law, 638; Kriz
v. Peege, 119 Wis. 105. See also Alexander v. Alexander, 85 Va. 353,
1L. R, A. 125; Bertles 1. Numan, 92 N. Y. 152, 44 Am. R. 361; Haas
». Shaw, 91 Ind. 384, 46 Am. R. 607.

*In re Turnbull (1897), 2 Ch. 415; Winn »v. Riley, 151 Mo. 61,
74 Am. St. R. 517; Rugh v. Ottenheimer, 6 Oreg. 231, 25 Am. R. 513;
Leete v. State Bank, 115 Mo. 184. See also Morrison ». Morrison, 113
Ky. 517.
THE WIFE UNDER STATUTES 225

of common law, equity and statutory rules which can be
adequately understood only by special study of the local
law.

In nearly all states, however, the real estate of every
woman owned at the time of marriage remains her sole
and separate estate,? and in most of them personal prop-
erty owned at marriage follows the same rule.®

239. Same—Property Acquired After Marriage.

In some states the statutes make all property acquired
after marriage, by any lawful means, the legal separate
estate of the wife. In many other states all property
real and personal > acquired from any person other than
the husband is legal separate estate.6 Property acquired
on her personal credit or upon the credit of her separate
estate is usually separate estate,’ and so of the natural
increase, income or profit of whatever is separate estate.’
The same is true of whatever is taken in exchange for
her separate estate, or purchased and paid for with her
separate means; nor does it make any difference; as a
rule, that her husband acts as her agent or takes title

1¥For a summary of the statutes down to 1886 see note to Kirk-
patrick v. Buford, 76 Am. D. 367.

2 In a few states the husband is entitled to the possession of the wife’s
lands during coverture juri mariti. Evans v. Kunze, 128 Mo. 670, 679,
and cases cited. See Propes v. Propes, 171 Mo. 407.

3 Southard v. Plummer, 36 Me. 64; Ago v. Canner, 167 Mass. 390;
Barton v. Barton, 32 Md. 214; Power v. Lester, 23 N. Y. 527. Compare
Willisford v. Phelan, 120 Tenn. 589.

4 But see Willisford ». Phelan, supra.

5’ That personal property includes choses. in action, see Barton ».
Barton, supra.

5 In most of these jurisdictions property acquired from the husband
is the wife’s separate estate, except where the conveyance to her must
be deemed fraudulent and void as against his creditors under prin-
ciples later discussed. See post, secs. 286 et seq.

7 See post, sec. 244.

8 Kelley ». Grundy, 20 Ky. L. 1081; Woodward v. Woodward, 148
Mo. 241; Bongard ». Cove, 82 Ill. 19. See ante, sec. 222, as to equitable
separate estate.

15 Se cee ae
226 THE WIFE UNDER STATUTES

in his own name, unless the rights of creditors are in-
volved.!

Whether damages recovered for torts to the wife become
her separate property must of course depend upon local
statutory terms. Wherever she is authorized, as in many
states, to sue and recover in her own name for injuries
to her person or character, the amount so recovered is
her separate estate. And where property coming to her
from any source other than her husband is declared sepa-
rate estate, damages recovered for her personal injuries
have been held hers,” even though the husband was re-
quired to join for their recovery.’

So far as injuries to her separate property are concerned
the statutes are usually ample to protect as her sepa-
rate estate a recovery by her, or by her and her husband
jointly.*

240. Same—Earnings and Profits of Separate Busi-
ness or Employment.

Ordinarily the married women’s acts do not change the
common-law rule that gave the husband the right to the
wife’s services and earnings in his household or accru-
ing from labor performed for him, and his contract to
remunerate her, at least for her domestic services, is with-
out consideration and void.’ But by the statutes in most
states she has an absolute right to her own earnings and

1 Reeves v. McNiell, 127 Ala. 175; Adune v. Spencer, 62 N. J. Eq.
782, 56 L. R. A. 817, 90 Am. St. R. 484. See post, sec. 300.

* See Chicago, ete., R. Co. ». Dunn, 52 Ill. 260; Martin ». Robson,
65 Ill. 129, 16 Am. R. 578. Compare Shattuck v. Town of Clifton, 22
Wis. 114, 94 Am. D. 588.

? Clark ». Wootton, 63 Md. 113; Jeanes ». Davis, 3 Clark (Pa.), 60,
4 Pa. L.J.406. See under Civil Damage Acts, Hahn v. Goings, 22 Tex.
Civ. App. 576.

‘See Pierson v. Smith, 9 Ohio, 554, 75 Am. D. 486; Evers ». Vree-
land, 50 N. J. L. 386; Alexander ». Alexander, 85 Va. 353, 1 L. R. A.
125; Fife v. Oshkosh, 89 Wis. 540.

5 See Lee ». Savannah Guano Co., 99 Ga. 572, and cases cited be-
low; Coleman v. Burr, 93 N. Y. 17, 45 Am. R. 160, and cases cited and
discussed. See also Merrill ». Smith, 37 Me. 394.
THE WIFE UNDER STATUTES 227

those of her minor children in her custody provided the
husband deserts her,' and in most states the statutes
give her a right to her earnings in the employment of
strangers. Usually under these latter acts, there must be
something to show that she elected to work for herself
and not for the husband or for his interests in order that
her earnings shall be deemed her separate estate. ?

When a married woman is lawfully carrying on a sepa-
rate trade or business under authority of statute, her prof-
its therein are usually held her separate property, both
as against the husband and his creditors, particularly
where he has no proprietary interest in such business.®
She may even employ him with or without salary as
agent or manager of such business, and neither he, nor
even his creditors in most states, will have any interest
in it or its income or profits, however much they may be
due to his industry or skill. But if the husband is in fact
sole proprietor of, or a partner in, a business carried on by
him in the name of the wife with intent to deceive his
creditors, his interest at least, and possibly hers, is liable
for his debts.> And clearly, where the wife permits the
husband to carry on trade in his own name with her sepa-
rate property or funds, creditors who trust on the basis

1See ante, secs. 128, 184; post, sec. 470.

2 Poffenberger v. Poffenberger, 72 Md. 321; McCloskey v. Provident
Saving Inst., 103 Mass. 300; Burke v. Cole, 97 Mass. 113; Birkbeck v.
Ackroyd, 74 N. Y. 357, 30 Am. R. 304. Whether under such statutes
she may make a binding contract for compensation for labor per-
formed for her husband, so as to acquire a right thereto and a separate
property therein, has been differently decided. That she cannot, even
when it is in his business rather than his household, see Brittain ».
Crowther (C. C. A.), 54 Fed. 295; Blaechinska v. Howard, 180 N. Y.
498. That she can so contract where the services are outside her do-
mestic duties, see Nuding v. Urich, 169 Pa. 289. Compare Urig v.
Horstman, 8 Bush (Ky.), 172.

3 Carsey v. Reticker, 95 Ia. 25, 58 Am. St. R. 421; Samus ». Mc-
Laughlin, 35 N. Y. 647, 91 Am. D. 83; Wheeler v. Raymond, 130 Mass.
247; Brown v. Casbier, 3 Ky. Law, 613.

4 See post, sec. 289.

’ Hamnill ». Augustine, 81 Ia. 303.
228 THE WIFE UNDER STATUTES

of his apparent ownership are entitled to satisfaction
therefrom.?

241. Registry of Schedule or Inventory of Separate
Property.

In several states the wife must, in order to obtain full
protection for her separate property, file an inventory or
schedule in a designated public office as prescribed by
statute. The statutes differ in their terms, but usually
the failure to record or file an inventory casts upon the
wife the burden of proving her ownership of what she
claims as separate property as against creditors of her
husband and bona fide purchasers from him, but gives
him no title or right to the property as against her.?

242. Life Insurance Policies and Their Proceeds.

A wife has an insurable interest in the life of the hus-
band, and when she takes out a policy upon his life and
pays the premiums herself, it and its proceeds would doubt-
less be regarded everywhere as her separate estate. Even
where the husband or a third party pays the premium,
naming her as the beneficiary of a policy on his life, she
acquires in equity or by statute a vested right of property
in the policy and its avails the moment it is in force, and
the life insured cannot, without her consent, change the
beneficiary,* and usually both the policy and its proceeds
are beyond the reach of the husband’s creditors. Statutes
in some states, however, fix the maximum amount or
cost of insurance that a man can provide for his family
as against creditors,‘ and, independent of such acts, it

1 Patton v. Cates, 67 Ill. 164.

*See Allen +. Hanks, 136 U. 8. 300; German Bank 2. Heinstedt, 42
Ark. 62; Merrill ». Parker, 112 Mass. 250; Jones ». Jones, 19 Ia. 234;
Miller v. Steele, 39 Ia. 527; Anderson ». Medburg, 16 S. Dak. 324;
Brummet ». Weaver, 2 Oreg. 168.

+See Elliott on Ins., sec. 354; Ellison ». Straw, 116 Wis. 207, and
cases cited.

‘See McQuitty v. Continental L. Ins. Co., 15 R. I. 573; Stokes 2.

Amerman, 121 N. Y. 337; Bradshaw v. Mut. L. Ins. Co., 187 N. Y.
347, construing N. Y. Dom. Rel. Law, 1896, Chap. 272, sec. 22.
THE WIFE UNDER STATUTES 229

seems that there must be some just proportion between
the amount he expends for insurance for the benefit of
his family and his indebtedness and his means, otherwise
creditors will be entitled to the excessive premiums as
against the beneficiaries.!

243. Power of Wife to Bind Herself by Contracts
Under Statutes. :

The power of a married woman to bind herself or her
separate estate under statutes involves some of the most
difficult questions in modern law. This is but natural,
for in only a few states has it been the intention of the
legislature to remove entirely the contractual disabilities
of the common law, but rather to confer upon her a legal
separate estate, with more or less ample powers of ac-
quisition, énjoyment, management and disposition, while
protecting her against the consequences of her general
engagements, at least where no intent to charge them
upon her separate property legally appears.

The wife’s contracts under the married women’s acts,
save in a few states where they are broad enough to give
her the capacities of a feme sole,” may be generally divided
into three classes, as follows:

1. Those that bind her personally at law, in some though
not all the states, being such usually as are for the acquisi-
tion of a separate estate, or such as concern its manage-
ment, enjoyment or disposition.

2. Those that bind her separate property in equity be-
cause of an intention to charge it with them, or because
they are for the acquisition, protection or enjoyment of
her separate estate.

3. Those that are void both at law and in equity, be-
cause they do not concern her separate property or are

1See Richards on Ins. (8d Ed.), sec. 72; Holmes v. Gilman, 138
N. Y. 369, 34 Am. St. R. 463, 20 L. R. A. 566, as to insurance paid for
with embezzled funds.

2 See Mayo v. Hutchinson, 57 Me. 546; Major ». Holmes, 134 Mass.
108; Binney 2. Globe Nat. Bank, 150 Mass. 574, 6 L. R. A. 379.
230 THE WIFE UNDER STATUTES

not intended to be a charge thereon, or because her in-
tention to charge it is not properly expressed, the stat-
ute giving her no general power to contract, or because
the contract in question is specially prohibited by statute.
The discussion that follows will fairly indicate into
which of these classes a given contract properly falls.

244. Contracts for the Acquisition of Separate Prop-
erty.

Where the wife has a statutory separate property she
may, as a general rule, use it in the purchase of other
property which will become in like manner her separate
estate, even though she buys from her husband.?

Under most statutes a married woman who has a sepa-
rate estate may purchase on credit and bind herself per-
sonally, at law, for the price.* In others she is not liable
personally, nor upon her note or other separate obligation
for the price, but her separate property is bound therefor
in equity.

But whether a wife who has no separate estate may
acquire one on credit as against her husband and his
creditors has given rise to discussion. Some statutes
expressly authorize such a purchase,> and under a com-
mon form of married women’s acts, which authorize them
to receive by inheritance or by gift, grant, devise or be-
quest, and hold to their sole and separate use property
real and personal, and convey and devise the same, it is
generally held that a married woman may purchase prop-
erty upon her own personal credit, whether she has a
separate estate or not, and will be bound at law for the
price, provided such property is vested in her as her
separate estate with the power to enjoy and dispose of it
as such; ° and this rule applies even though she intends

1 Wells v. Foster, 64 N. H. 585.

° Leavett v. Jones, 54 Vt. 423, 41 Am. R. 718.

3 Condon ». Barr, 49 N. J. L. 58; Berridge v. Banks, 125 Ind. 561.

* Dollner v. Snow, 16 Fla. 86; Carpenter v. Mitchell, 54 Ill. 126.

6 See Bollinger v. Gallagher, 163 Pa. 245, 43 Am. St. R. 791.
® Hays v. Jordan, 85 Ga. 741, 9 L. R. A. 373; Merrill ». Purdy, 129
THE WIFE UNDER STATUTES 231

to devote the property purchased to the benefit of her
husband or a third person, and this fact is known to the
vendor, if it really becomes her separate estate to do
with as she pleases.!_ In a few jurisdictions under similar
statutes, however, the capacity of the wife to contract
for or acquire a separate property wholly on her personal
credit has been denied.? But it is not likely that this rule
would be enforced to debar the purchaser from charging
with the purchase money property thus actually acquired
by her, or by her husband through her, though it has been
held that her note for borrowed money is not binding
though she borrowed in anticipation of acquiring a sepa-
rate estate.®

245. Contracts for the Management and Enjoyment
of Separate Property—When Wife Bound at Law.

In a number of states any contract of a married woman
necessary or convenient and proper to the protection and
beneficial use and enjoyment of her separate property,
is binding upon her both at law and in equity. This
usually results from the language of the statutes them-
selves, which empower her to make all contracts ‘‘neces-
sary and proper” to the enjoyment and disposition of
her separate estate, or to ‘‘contract with reference to”
her separate estate. As to such contracts she is to be
regarded as a feme sole and is in most states bound in law.‘
But whether the wife is bound at law even under these
statutes usually depends, not upon whether her contract is
in fact beneficial to her separate estate, but upon whether
Wis. 331; Kriz v. Peege, 119 Wis. 105, and cases cited and discussed;
Ackley v. Westervelt, 86 N. Y. 448; Messer ». Smyth, 58 N. H. 298;
Hibernian Savings Institution ». Luhn, 34 8. Car. 175; Main ». Scholl,
20 Wash. 201.

1 Kriz v. Peege, 119 Wis. 105, and cases cited; Kitchen ». Chapin,
64 Neb. 144, 57 L. R. A. 914.

2 Palliser ». Gurney, L. R. 19 Q. B. D. 519; Ames »v. Foster, 42 N. H.
381; Condon v. Barr, 49 L. J. L. 53; Gockley »v. Miller, 162 Pa. 271.

3 Ames v. Foster, supra.

‘Conway v. Smith, 13 Wis. 140; Kriz v. Peege, 119 Wis. 105; Cook-
son v. Toole, 59 Ill. 515; Olney v. Ferguson, 41 W. Va. 568.
232 THE WIFE UNDER STATUTES

it is in its nature and design adapted to benefit it. That
it might confer a possible, remote or incidental benefit
upon it is not enough. The absence of actual benefit to
the separate estate, on the other hand, will not prevent
the wife from being liable at law if the contract was de-
signed and was of a character to promote its direct benefit,
protection or enjoyment.?

246. Same—Wife Bound in Equity.

In a number of other states the wife’s contracts, even
though made for the benefit of her separate estate, are
binding only in equity and upon her separate estate, and
not upon her personally and at law. In these states the
remedy against her in such cases is in the nature of a
proceeding in rem to reach and charge her separate prop-
erty, and no personal judgment can be rendered against
her.*? But even in these jurisdictions the contract becomes
binding on her separate estate, provided it concerns its
acquisition, use or enjoyment without any other or further
evidence of an intent to charge it.

247. What Contracts Deemed to Concern Separate
Estate—Examples.

We have already seen that contracts binding at law
or in equity without proof of an intention to charge the
separate estate are such as are necessary to its acquisi-
tion, use or enjoyment. In addition to contracts for the
purchase of separate estate ‘ married women have been
held liable for repairs and improvements on their separate
property,’ and in such cases the property is subject to a

1 Russell ». Bank, 39 Mich. 671; Detroit Chamber of Com. ». Good-
man, 110 Mich. 498, 35 L. R. A. 96.

2 See Owen v. Cawley, 36 Barb. (N. Y.) 52.

’ Canal Bank v. Partee, 99 U. S. 325; Mallett ». Parham, 52 Miss.
921; McQuaid 2. Rontainn, 24 Fla. 509; Farthing v. Shields, 106 N.
Car® 289; Levi v. Earl, 30 Ohio, 147. After the wife becomes discovert
the remedy 1 is at law. King v. Mittalberger, 50 Mo. 182.

4See ante, sec. 244.

’ Conway v. Smith, 13 Wis. 125; Noel ». Kinney, 106 N. Y. 74, 60
THE WIFE UNDER STATUTES 233

mechanic’s lien therefor.' If a wife owns a farm she is
liable upon contracts for stocking or working it.2 So a
married woman or her estate is generally liable for the serv-
ices of an attorney employed by her in a suit respecting
her separate property or estate,* and for the fees, commis-
sions, salaries or wages of any other agents or servants
that she may employ in managing, improving or protect-
ing it, and for whatever is necessary or appropriate to
make its use profitable or beneficial.‘

248. Contracts Not Involving Acquisition, Manage-
ment, Enjoyment or Disposition of Separate Estate.

Unless expressly empowered to do so by statute, a mar-
ried woman cannot bind herself or her statutory sepa-
rate estate by contracts unconnected therewith, unless she
has in some way indicated an intention that they shall
be charged thereon, and unless such intention appears
‘directly or by inference her contract is void both at law
and in equity. Even where such intention appears they
are not enforcible at law in most states,® but only in equity
in a suit to charge her separate estate, and no personal
judgment can be rendered against her. in the absence of
statutes conferring upon her the contract capacity of a
feme sole.” The principal question under this head is as

Am. R. 423; Lindley »v. Cross, 31 Ind. 106, 99 Am. D. 610; Burr ».
Swan, 118 Mass. 588; Pierce v. Kittredge, 115 Mass. 374; Harmond ».
Garland, 1 Mackey (D. C.), 1.

1 Stephenson v. Ballard, 82 Ind. 87; Wheaton v. Trimble, 145 Mass.
345, 1 Am. St. R. 463. Compare Ball v. Pacquin, 140 N. Car. 83, 3
L. R. A. (N. 8.) 307; Dame ». Coffman, 58 Ind. 345.

* Batchelder v. Sargent, 47 N. H. 262.

* Leonard v. Rogan, 20 Wis. 568; Thresher v. Barry, 69 Conn. 570;
Porter v. Haley, 55 Miss. 66, 30 Am. R. 502; Lee ». Winston, 68 Ala.
402.

4 Batchelder v. Sargent, 47 N. H. 262. See post, sec. 254.

5 Kavanaugh »v. O’Neil, 53 Wis. 101. Compare Nelson ». McDonald,
80 Wis. 605, 27 Am. St. R. 72.

6 Athol Mach. Co. ». Fuller, 107 Mass. 437.

1 Ankeney v. Hannon, 147 U. 8. 118; Yale v. Dederer, 18 N. Y. 265,
72 Am. D. 503, 22 N. Y. 451, 78 Am. D. 216, 68 N. Y. 335; Merrill ».
234 THE WIFE UNDER STATUTES

to the sufficiency of the evidence of intention to charge
the separate estate. As to this the decisions conflict. A
number of courts, applying a more stringent rule to statu-
tory than was formerly applied to equitable separate
estate hold, that unless the contract be for the direct
benefit of the statutory separate estate, the wife’s intention
that it shall be a charge upon it must be created by writ-
ing expressing that intention, and must be contained in
the very contract that is the foundation of the charge,
unless the consideration goes to the direct benefit of
the estate.! It is not necessary, however, that the con-
tract should describe the property to be charged. The
intention to charge it may be stated in general terms.’
Neither does a general intent to charge separate estate
constitute a lien or charge upon any particular item of
her separate estate so as to prevent its bona fide aliena-
tion.®

Other courts hold that a married woman may charge
her statutory separate estate in equity under the same
circumstances and in the same way that she might charge
her equitable separate estate prior to the married women’s
acts.* But the decisions, even in these latter states, can-
not always be harmonized, for courts differ somewhat,
as we have seen, as to what is sufficient evidence of an
intention to charge separate estate in equity, independent
of the separate property acts.» The tendency in most
jurisdictions, however, seems to be to require strict proof
of the wife’s intention to charge her statutory separate
estate in all cases when the contract was not entered into

Purdy, 129 Wis. 331; Todd v. Lee, 15 Wis. 365; Johnson v. Cummings,
16 N. J. Eq. 97, 84 Am. D. 142. But see Corn Exchange Ins. Co. 2.
Babcock, 42 N. Y. 614, 1 Am. R. 601.

1 Yale v. Dederer, 22 N. Y. 450, 78 Am. D. 216; Willard ». Eastham,
15 Gray (Mass.), 328, 77 Am. D. 360.

?Corn Exchange Ins. Co. ». Babcock, 42 N. Y. 613,1 Am. R.
601.

3 Warren v. Freeman, 85 Tenn. 513.

4 Todd v. Lee, 15 Wis. 365.

5 See ante, sec. 225.
THE WIFE UNDER STATUTES 235

for its benefit,! or at least where it was not entered into
for her own personal benefit or advantage.’ *

In a few states where a married woman is forbidden by
statute to dispose of her separate estate without the con-
sent of her husband, it is held that she cannot do so in-
directly by charging it with her contracts entered into
without the consent or concurrence required by statute.®

249. Power of Wife to Dispose of Statutory Separate
Estate—Mode of Alienation.

Whether statutes that confer a separate property upon
the wife give her the right of alienation or the jus dis-
ponendi, as distinguished from the bare right of enjoy-
ment or the jus tenendi, has given rise to discussion. In
some states it is held that where the statute is silent as
to the jus disponendi, she cannot alienate it during cover-
ture. Even statutes that give her the right to ‘hold,
own, possess and enjoy,” ® or to “hold to her sole and
separate use as if she were single,” have been held not to
confer the power to alienate real estate,® though some
courts have held otherwise as to personalty on the ground
that the statutes contemplate the beneficial enjoyment
of the latter which cannot well be had without the power
of alienation.’ Other courts have refused to recognize
any distinction between real and personal separate estate
and hold that the wife may alienate neither under statutes

1See Farmers’ Bank v. Boyd, 67 Neb. 497; Benson v. Zinmers, 21
Ky. L. 1060.

2? Willard ». Eastham, 15 Gray (Mass.), 328, 77 Am. D. 360; Gosman
v. Cruger, 69 N. Y. 87, 25 Am. R. 141; Yale ». Dederer, 68 N. Y.
327.

3 See Jackson v. Sublet, 10 B. Monr. (Ky.) 467; Ball v. Pacquin, 140
N. Car. 83, 3 L. R. A. (N. 8.) 307, note.

‘Cole v. Van Riper, 44 Ill. 58; Miller ». Weatherby, 12 Ia. 415.

5 Cole ». Van Riper, supra. That her sole lease under such a statute
will bind her during coverture, see Parent v. Callerand, 64 Ill. 97.

6 Naylor v. Field, 29 N. J. L. 287; Harding ». Cobb, 47 Miss. 599.
See also Walker v. Reamy, 36 Pa. 415.

? Harding v. Cobb, supra; Naylor ». Field, supra.
236 THE WIFE UNDER STATUTES

giving her the beneficial use.!_ In most states the married
womens acts expressly empower the wife to alienate her
legal separate estate without the concurrence of her hus-
band,? and in a number of them without any other formali-
ties than are required of a feme sole. In some, however,
the husband must join in her deed of land in order to bar
his curtesy or other inchoate interest,? and in others he
must join with her in all her transfers of her separate prop-
erty, real or personal, or assent thereto, and in many others
in her transfers of her real estate only.*

Usually, as to her real estate, he must join as grantor in
the body of the deed, at least in states where he has some
freehold interest therein, though his mere joinder in its
execution has been held sufficient in others. Whatever
particular formalities the lex rei sitee prescribes for the
‘deed of the wife and the joinder of the husband therein,
must be strictly complied with. And it is held that where
the deed of the wife is void at law for non-joinder of the
husband, or because it fails in some other way to meet the
statutory conditions under which she is empowered to
convey, equity cannot treat the defective deed as a valid
contract to convey and compel the execution of a deed
sufficient in law under the statute, for equity cannot aid
the defective execution of a statutory power nor supply
capacity or create an estoppel where there was no capacity

1 Swift ». Luce, 27 Me. 285; Scott v. Scott, 13 Ind. 225; Brown ».
Fifield, 4 Mich. 322; Moore v. Cornell, 68 Pa. 320.

*See statutes in Ark., Col., Mich., N. Y., Wis., N. Dak., S. Dak.
and Utah.

*See ante, sec. 201. See, for example, statutes in II., Ia., Kan.,
Ohio and Oreg.

‘See statutes in Ala., Fla., Idaho, Ind., Ky., Minn., Nev., N. Car.,
Pa., Vt. and W. Va; Diederich v. Hutchinson, 73 Vt. 134, 87 Am. St.
R. 698.

5 Upon this point local statutes and decisions are of course the only
safe guides. See Adams ». Teague, 123 Ala. 591, 82 Am. St. R. 144,
and cases cited.

* Hepburn v. Dubois, 12 Pet. (U. 8.) 375. Thus, if the law requires
the husband to join in the wife’s deed, her property cannot be conveyed
THE WIFE UNDER STATUTES 237

by law.! Neither can the defect be cured by the wife’s
subsequent acknowledgment of the validity of the deed ”
even after coverture has ceased,® or by the husband’s
assent to it.t There must be a new conveyance properly
executed or a proper acknowledgment of the old one. In
neither case does the conveyance relate back to the date
of the defectively executed one, but the title passes as of
the date of due execution.> Even a curative statute will
not avail to vest title in the grantee, unless authorized
by constitutional provision.®

250. Same—Liability on Covenants—Estoppel.

Whether a married woman is bound by the covenants
of a deed or other conveyance of her statutory separate
property depends, in general, upon her power to bind
herself or her separate estate under the local law. If by
that law she can make contracts that will bind her per-
sonally, she will be bound personally by her covenants in

by separate deeds of husband and wife. Cannon v. Beatty, 19 R. I.
524. So as to the separate examination and acknowledgment by the
wife in many states. Hepburn v. Dubois, 12 Pet. (U. 8.) 345; Hollings-
worth ». Flint, 101 U.S 591; Central Land Co. ». Laidley, 32 W. Va.
134, 25 Am. St. R. 797, 3 L. R. A. 826; Krieger v. Crocker, 118 Mo.
531; Bradley ». Walker, 1388 N. Y. 291; Robinson ». Queen, 87 Tenn.
445, 10 Am. St. R. 690, 3 L. R. A. 214.

1 Schouler’s Hus. & W., sec. 175; Central Land Co. v. Laidley, supra;
Brown v. Pechman, 53 S. Car. 1; Hamar v. Medsker, 60 Ind. 413.
But see Patterson v. Lawrence, 90 Ill. 174, 32 Am. R. 238; Reis ».
Lawrence, 63 Cal. 129, 49 Am. R. 83, and other cases in note to 57
Am. St. R. 183. A deed executed in conformity with statute may
be corrected in equity as to the description of the property conveyed.
See Hamar v. Medsker, supra; Edwards v. Schoeneman, 104 Ill. 278.

2 Adams v. Buford, 6 Dana (Ky.), 406, 408.

3 Price ». Hart, 29 Mo. 171.

4See Green v. Bennett, 120 N. Car. 394.

5 Miller v. Shackelford, 3 Dana (Ky.), 289, 297; Jackson v. Stevens,
16 Johns. (N. Y.) 110; Doe ». Howland, 8 Cow. (N. Y.) 277, 18 Am. D.
445,

* Loomis v. Bush, 36 Mich. 40; Purcell v. Goshorn, 17 Ohio, 105, 49
Am. D. 448. Compare Randall v. Krueger, 23 Wall. (U. 8.) 187,
149.
238 THE WIFE UNDER STATUTES

a deed; otherwise her separate estate will be bound.’ In
any event she is estopped by her covenants in most states
from setting up an after acquired title as against her
grantee or those claiming under him.?

251. Mortgages of Statutory Separate Estate.

Generally in this country a married woman may mort-
gage her statutory separate property to secure her own
debt or that of a third person, even though such third
person be her husband.* But her mortgage like her deed
must be executed in strict conformity to the require-
ments of local statutes, which are commonly the same as
for her other conveyances,‘ and include, in most states,
the joinder of her husband in the manner prescribed for
her deeds absolute.®

Unless she is empowered by statute to contract gener-
ally, a wife cannot make herself or her other property lia-
ble to a deficiency judgment, unless the mortgage was
given for her own debt,® or unless, perhaps, there was an
intention that the debt should constitute a charge upon
her separate estate generally in addition to the premises
mortgaged, or was for the benefit of her separate estate
generally.’

In a few states married women are forbidden to mort-
gage their property to secure their husband’s debts.’

* Miller v. Miller, 140 Ind. 174; Whitbeck v. Cook, 15 Johns..(N. Y.)
483, 8 Am. D. 272; Wadleigh v. Clines, 6 N. H. 17, 23 Am. D. 705.

2 Beal v. Beal, 79 Ind. 280; Hill v. West, 8 Ohio, 222, 31 Am. D. 442;
Knight v. Thayer, 125 Mass. 25. That she is estopped only as to her
title at the time of granting, see Snoddy »v. Leavitt, 105 Ind. 357;
Childs ». McChesney, 20 Ia. 431, 89 Am. D. 545. See also Couch ».
Palmer, 57 Fla. 57.

3 Goll v. Fehr, 131 Wis. 141.

4 See ante, sec. 249.

’See Martin v. Harrington, 73 Vt. 193, 87 Am. St. R. 704. Com-
pare Lynch v. Moser, 72 Conn. 714.

6 See Jones on Mort. (5th Ed.), sec. 111.

7See Merchants’ Nat. Bank ». Raymond, 27 Wis. 571; Payne ».
Burnham, 62 N. Y. 69, 74.

8 See post, next sec.
THE WIFE UNDER STATUTES 239

Still, even in these, if a mortgage is given ostensibly for
a loan to the wife, and the mortgagee acts in good faith,
she is usually held estopped to question its validity on the
ground that it was actually for the benefit of the husband.?

A married woman who mortgages her separate property
for the debt of her husband or another is usually regarded
as in the position of a surety, and has all the rights of a
surety both against the mortgagee with notice of the facts,
and her husband or other principal or his estate.?

252. Contracts Prohibited or Declared Void by
Statute.

In several states a wife is expressly prohibited from bind-
ing herself as surety for her husband or by any assump-
tion of his debts.? Under these provisions there must be
a liability substantially the husband’s,‘ and a contract
by the wife, though it be for the benefit of the husband,
will bind her if otherwise valid where there was no debt
or obligation on his part but only on hers, as where he,
being ill and without means, she hired physicians on her
own responsibility to attend him;* and so where she
borrowed money from a lender ignorant of her purpose,
intending to pay it over to her husband or to apply it on
his debt. A mortgage of the wife’s property to secure

1 Wells v. Foster, 64 N. H. 585. And see Trimble v. State, 145 Ind.
154, 57 Am. St. R. 163.

2Schouler’s Hus. & W., sec. 177; Savage v. Winchester, 15 Gray
(Mass.), 453; Albion Bank a. Burns, 46 N. Y. 170; Flemming ». Borden,
127 N. Car. 214, 53 L. R. A. 316.

3See Continental Nat. Bank v. Clarke, 117 Ala. 292; Lewis ».
Howell, 98 Ga. 428. Compare Taylor ». Am. Freehold, etc., Co., 106
Ga. 238. That the wife was a mere surety may be shown by parol
even as against a bona fide holder of her note. See Vorres v. Nuss-
baum, 131 Ind. 267, 16 L. R. A. 45. In North Carolina a wife is for-
bidden to make any contract without her husband’s assent save for
necessaries for support of the family, and to pay antenuptial debts.
See Bank v. Benbow, 150 N. Car. 781.

4Veal v. Hurt, 63 Ga. 378.

§ Parsons v. McLane, 64 N. H. 478.

8 Wells v. Foster, 64 N. H. 585.
240 THE WIFE UNDER STATUTES

her husband’s debt, however, has been held void under
a statute prohibiting her from becoming directly or indi-
rectly surety for him.'

253. Husband’s Liability for Wife’s Antenuptial Debts.

The acts conferring separate property upon, married
women have generally been held not to exonerate the
husband from liability for his wife’s antenuptial debts.”
In most states, however, express statutes wholly exonerate
him, or limit his liability to the value of any property
derived by him from the wife by virtue of the marriage.’
Statutes abolishing or limiting the husband’s common-
law liability are not retroactive.‘

254. Wife’s Separate Trade or Employment Under
Statutes.

In most states the statutes that confer a separate prop-
erty upon married women empower them in express
terms or by necessary implication to carry on trade or
business and to embark their capital therein, and their
separate property, at least, will be liable for contracts
entered into therein, and in some their separate trading
contracts bind them at law.> In a number of states a
wife can lawfully carry on a separate trade or business
only with the consent of her husband, or upon complying
with certain formalities, such as recording a certificate
containing certain facts, or upon publication of a specified
notice, or upon application to a court and the issuance of

1 Bond »v. Sullivan, 133 Ga. 160; Osborne v. Cooper, 113 Ala. 305,
59 Am. St. R. 117. Compare Kuhn ». Ogilvie, 178 Pa. 303; McGee ».
Cunningham, 69 S. Car. 470.

2Platner v. Patchin, 19 Wis. 333; Berley ». Rampacher, 5 Duer
(N. Y.), 183. Contra, Howarth ». Wannser, 58 Ill. 48.

® Consult local statutes. See ante, sec. 135.

4Berley v. Rampacher, supra; Clawson v Hiutehingan, 11 8. Car.
323; Taylor v. Rountree, 15 Lea (Tenn.), 725.

5 Under a statute empowering the wife to carry on separate trade
she may be estopped by her representations to deny that a transaction
involved her separate trade. Smith e. Weeks, 65 Vt. 566,
THE WIFE UNDER STATUTES 241

a certificate. For the details of these statutes and the
effect of non-compliance, information should be sought
in the books of the particular state where the question
arises.! Generally if the wife engages in trade without
complying with the statutory requirements, she cannot
bind herself or her property by contract or sue alone with
respect to her trade or business, or her earnings or profits
may be subject to the control of the husband or be liable
for his debts, or all of these consequences may combine.

255. Wife’s Liability for Family Necessaries.

Statutes of a number of states provide that the expenses
of the family and the education of the children shall be
chargeable upon the property of both husband and wife,
or either of them, in favor of creditors, and that they
may be sued jointly or severally therefor, whether the debt
was contracted by the husband or wife.? Whether the
wife may claim indemnity from the husband where her
property is taken for family debts probably depends upon
the term of the statutes themselves.*

In determining what are ‘‘family expenses’ within the
meaning of these statutes the courts are inclined to con-
strue that term with some strictness in favor of the wife,
and to hold that the obligation incurred must be for
something adapted, prima facie at least, for the use of the
family or household as an entity, or some member of it
regarded as such, rather than for the mere personal use
and convenience of the individual.t Thus, food and
clothing, medical attendance, rent of the common home
and the like, ordinarily constitute family expenses within
the act. But board of the husband away from home on

1 For statutes down to 1886, see Stimp. Am. Stat. Law, Art. 652.

2 Hill’s Code (Oregon), sec. 2874; Iowa Code, sec. 3165; Starr ».
Curtis, Ann. Stat. Ill., 1896, p. 2133; Mo. Rev. Stat., 1899, sec. 4340.
Such statutes are constitutional and valid as to obligations incurred
after their passage even as against separate property previously ac-
quired. Meyers ». Field, 146 Ill. 50.

3 Kaggan v. Holmes, 90 Ia. 308.
*See Vose v. Myott, 141 Ia. 506, 21 L. R. A. (N. 8.) 277.

16
242 THE WIFE UNDER STATUTES

his own business, particularly where he is separated from
the wife, is not a family expense for which the wife is
liable! A diamond shirt stud has been held a family ex-
pense upon the ground, apparently, that it was an article
of wearing apparel,’ though a diamond and ruby ring
was held an article of ornament and not a family expense.?*

1 Vose v. Myott, supra. See also Hudson v. Sholem, 65 Ill. App. 61;
Blackhawk Co. v. Scott, 111 Ia. 190.

2 Neasham v. McNair, 103 Ia. 695, 64 Am. St. R. 202, 38 L. R. A. 847.

3 Hyman v. Harding, 162 Ill. 357. As these statutes exist in only a
few states, the reader is referred for further holdings to Vose v. Myott,
and note thereto, in 21 L. R. A. (N. 8.) 277; Dodd ». St. John, 15
L. R. A. 717, and note. In this last case a buggy bought by the hus-
band for use of the family and used by them was held a family expense.
CHAPTER XXI

HOMESTEAD AND OTHER EXEMPTIONS BASED UPON
MARRIAGE OR THE FAMILY RELATION

256. In General.

The homestead may be generally defined as the family
residence, owned and occupied as such, exempt by law
from forced sale for debt, and otherwise commonly sub-
ject to peculiar rules for its protection as an abiding place
for the family against the results of improvidence or mis-
fortune. It is purely a creature of statute, founded not
so much upon a regard for debtors as upon the broad pol-
icy of encouraging industry and frugality, and protecting
heads of households and their dependents against suffer-
ing, and society from the burdens and evils which tend to
flow from the separation and disintegration of families
which tend to follow the loss of the common home.' The
usual characteristics of the homestead are:

1. Its exemption from liability to sale on execution
against the owner.

2. The preclusion of the owner to convey or incumber
it save under certain restrictions not applicable to other
lands.

3. His inability to devise it so as to deprive the surviv-
ing members of the family of its enjoyment and protection.

It has sometimes been described as an estate and some-
times as a mere privilege or exemption. The correct view
in any jurisdiction must depend largely upon the language
of local statutes and the decisions construing them.’

1See Barney v. Leeds, 51 N. H. 253; Lies v. De Diablar, 12 Cal. 328;
Charles ». Lamberson, 1 Ia. 435, 63 Am. D. 457; 1 Washb. Real Prop.
(5th Ed.) 353 et seq.; 44 Cent. L. Jour. 72.

2 See Jerdee v. Furbush, 115 Wis. 277, and notes thereto in 95 Am.
St. R, 904.

248
244 HOMESTEAD

257. Who May Have.

The policy of the homestead laws being the protection
of the family, the laws of many of the states confer a
homestead upon the head of the family, or upon a house-
holder having a family. An unmarried person is held to
be within the protection of such statutes if others are
living with him whom he is under legal or moral duty to
support.! Restraints on alienation, however, usually ap-
ply to married persons only.?

258. Occupancy Essential—Abandonment.

Occupancy or use of premises as a homestead is usually
requisite both to its acquisition and to its continuance
as such. Yet the courts are often quite liberal in regard
to occupancy where land is acquired with intent to gain
a homestead and occupancy ensues within a reasonable
time thereafter, and it has been held that vacant uncleared
land was a homestead from the date of purchase, where
it was obtained with the purpose of making it such and it
was partially prepared for occupancy, though neither the
claimant nor his family occupied it until three years later,
during a year of which period it was occupied by a ten-
ant.* But mere intention without acts of preparation do
not establish a homestead.‘

The homestead may be abandoned and lost, and when
the intent to abandon it is once proved to have been
formed, any period of absence of the owner with that
intent is sufficient in most states to obliterate the right,®
whether a new homestead is acquired or not.

1 See Ellis ». Davis, 90 Ky. 183; Halloway v. Halloway, 86 Ga. 576,
22 Am. St. R. 484, 11 L. R. A. 518, and cases cited. In Wisconsin,
under a statute that secures to the owner a prescribed quantity of
land “owned and occupied by him,” it is held that a single man may
have a homestead though he has’ no dependents living with him.
Myers ». Ford, 22 Wis. 136; Ellis ». Davis, supra.

2 See post, sec. 263.

3 Shaw v. Kirby, 93 Wis. 379, 57 Am. St. R. 927. See also Schofield
v. Hopkins, 61 Wis. 370, 375.

“Fuert v. Carter, 174 Mo. 289.

5 See Smith v. Keener, 203 Ill. 264; Jarvais vo. ie 38 Wis. 440.
HOMESTEAD 245

On the other hand, if the owner leaves the homestead
for some temporary purpose with present intention to
return to it as a homestead, and such intention continues,
the length of the absence seems by many authorities al-
most immaterial except as bearing upon the question of in-
tent. Thus, two years,! three years,? and even six years,’
were held no bar to a claim of homestead where the in-
tention to return continued during the absence.

259. Nature of Use or Occupancy.

While mere occupancy of premises as a place of busi-
ness will not give them the character of a homestead,
the use of part of them for business purposes will not
prevent them from being a homestead if the owner actu-
ally uses them as a place of residence. Thus, the owner
of a hotel who resides there with his family may usually
claim it as a homestead; ‘* and so where he has a store,
shop or office in a part of the building where he resides.®
But some cases distinguish between the primary and chief
use of premises as a dwelling, and such use as a place of
business.® If premises are used as a residence the lease
of a part of them to others for purposes of business or
residence will not, as arule, destroy the homestead charac-
ter of any part of them, at least where they consist of a
single building.’

260. Selection of the Homestead.

In most states the mere character and intention of the
occupancy determines whether the property is a home-
stead. In a dozen or more states, however, the statutes

1 Gardner ». Gardner, 123 Mich. 673.

2 Minnesota Stoneware Co. ». McCrossen, 110 Wis. 316, 84 Am.
St. R. 927.

3 Kaeding ». Joachmasthal, 98 Mich. 78.

‘ Harriman v. Queen Ins. Co., 49 Wis. 71.

5 Orr v. Sharft, 22 Mich. 260; Sever v. Lyons, 170 Ill. 399.

6 Turner v. Turner, 107 Ala. 465, 54 Am. St. R. 110.

7 Pratt v. Pratt, 161 Mass. 276; Phelps v. Rooney, 9 Wis. 70, 76 Am.
D. 244.
246 HOMESTEAD

provide for a recorded claim, notice or declaration by
the owner.

261. Amount or Value of the Property—Proceeds.

The amount or extent of the property that may be
claimed as a homestead is usually fixed by statute, and
in many states the value that shall be exempt is likewise
limited. To attempt to epitomize these statutes would
be useless, as they are frequently changed and the only
safe guides upon any question of homestead are the local
statutes and decisions.

In the absence of statute, the proceeds of the sale of
the homestead by the debtor are not exempt, but they
are protected either generally or for a limited time in
some states while being held for investment in another
homestead.’

262. Fee Simple in Claimant Unnecessary.

Though the statutory language employs the word
“owned,” a homestead need not be predicated upon a
fee. A life estate is sufficient,’ and so is a term of years.®

Lands held by husband and wife jointly or in common
may constitute a homestead, but not lands so held by the
claimant and third parties, according to some decisions.’

263. Alienation of Homestead—lIn General.

The mere exemption of the homestead from forced sale
does not, in the absence of constitutional or statutory
provision, restrict the power of alienation by the owner.
Like other lands it is, of course, subject to dower, unless,

1 See Bailey v. Steve, 70 Wis. 316.

2 Kendall ». Powers, 96 Mo. 142, 9 Am. St. R. 326.

3 Anderson 2. cant, 103 Ia. 266, 64 Am. St. R. 177.

4 See 21 Cye. 504; Joyce v. J. I. Case Threshing Mach. Co., 89 Tenn.
337, 12 L. R. A. 519. Compare Shelton v. Orr, 89 Tenn. 82, 12 L. R. A.
514. As to homestead in partnership property, see Michigan Trust
Co. ». Chapin, 106 Mich. 384, 58' Am. St. R. 490, denying the right.
Compare Hunnicutt ». Suaney, 63 Ga. 586.
HOMESTEAD 247

as in some states, it descends to the widow in fee or she
has a life interest in the whole.

In the majority of states, however, by express provi-
sion the husband cannot alienate his homestead with-
out the consent and joinder of his wife. The effect of
the non-joinder of the wife in a conveyance of the home-
stead is therefore more serious than her non-joinder in
his deed of other lands, for the conveyance is, in most
states, absolutely void as to both spouses, so far as the
passing of the title is concerned,! and this is true though
the wife was living apart from the husband when his
deed was made.? Where a conveyance of the homestead
is void for non-joinder of the wife. it is not rendered valid
by its subsequent abandonment,’ or by divorce,* or by
the death of the wife.®

In some states the husband and wife must both execute
the deed though the title to the homestead is in her.®

A deed void as to the homestead because of non-joinder
of husband and wife, is valid usually as to any lands in
excess of or beyond what is legally the homestead,’ and
in some states the husband’s sole deed expressly reserving

1Q’Malley v. Ruddy, 79 Wis. 147, 24 Am. St. R. 702, with which
compare Jerdee v. Furbush, 115 Wis. 277, 95 Am. St. R. 904; Hutchins
v. Huggins, 59 Ill. 33; Clark v. Bird, 158 Ala. 278, 182 Am. St. R. 25,
29, note.

2 Murphy »v. Renner, 99 Minn. 348, 116 Am. St. R. 418, 8 L. R. A.
(N. 8.) 565; Sherrid ». Southwick, 48 Mich. 515. As to estoppel of
eloping wife to claim homestead as against children, see 116 Am. St. R.
420, and. cases cited.

3 Gleason 2. Spray, 81 Cal. 217, 15 Am. St. R. 47; American Savings
& Loan Assn. v. Burkhardt, 19 Mon. 323, 61 Am. St. R. 507; Adam ».
Gilbert, 67 Kan. 273, 100 Am. St. R. 456.

4 Alt v. Banholzer, 39 Minn. 511, 12 Am. St. R. 681; Lange v. Geiser,
138 Cal. 682.

5 Shoemaker »v. Collins, 49 Mich. 596; Martin v. Harrington, 73 Vt.
193, 87 Am. St. R. 704.

6 Low ». Anderson, 41 Ia. 476; Larson v. Butts, 22 Neb. 370; Hector
v. Knox, 63 Tex. 613.

7 Engler ». White, 104 Mich. 15; Pryne v. Pryne, 116 Ia. 82; Ander-
son v. Smith, 159 Ill. 93; Gray v. Schofield, 175 Il. 36.
248 : HOMESTEAD

all rights of homestead is valid and effectual save as to
the interest reserved.!

Usually the sole deed of the homestead by one spouse
to the other has been upheld.?

264. Mode of Alienating Homestead—Joinder and
Consent.

In states where the husband and wife are required to
join in conveying or incumbering the homestead, the
provisions as to the form or method of joinder are some-
what various. In many states simply joinder of the wife
in a conveyance in the ordinary form is sufficient, but in
some a special clause of release by the wife is often re-
quired,*® and in others both spouses should be named as
grantors in the body of the deed.* Where, as in a number
of states, a deed of the homestead is expressly required
to be acknowledged, failure in this respect renders it
absolutely void.’ If, as in many states, a separate or
privy examination of the wife by the acknowledging
officer is required, failure to make it renders the convey-
ance void. But it seems that the deed of a homestead,
void for want of proper acknowledgment, may be rendered
valid by a subsequent acknowledgment in due form, from

1 See Jerdee v. Furbush, 115 Wis. 277, and cases cited in the opinion
and in the notes thereto in 95 Am. St. R. 904. In fact this case goes
further and holds that the husband’s sole deed of the homestead with-
out reservation conveys an equitable interest good as against his heirs
and entitling the grantee to the legal title when the homestead in-
terest is terminated. See Waples on Homestead, Chap. XV.

2 See note to 95 Am. St. R. 923.

* Donahoe v. Chicago Cricket Club, 177 Ill. 351; Hart v. Church,
126 Cal. 471, 77 Am. St. R. 195.

‘See Seefert Lumber Co. ». Hartwell, 94 Ia. 576, 58 Am. St. R. 413;
McGrath »v. Berry, 76 Ky. 391; Bluff City Co. ». Bloom, 64 Ark.
492.

‘Smith v. Pearce, 85 Ala. 264, 7 Am. St. R. 44; Am., etc., Savings
Assn. ». Burkhardt, 19 Mont. 323, 61 Am. St. R. 507; Pardee ». Lindley,
31 Ill. 174, 83 Am. D. 219.

® Daniels v. Lowery, 92 Ala. 519; Lambert ». Kennery, 74 N. Car.
348; Norton v. Nichols, 35 Mich. 148.
HOMSETEAD 249

the time such acknowledgment is made.! In at least one
state such deed must be recorded to have legal effect.?

Where the spouse whose joinder is required by statute
is insane, alienation of the homestead can be effected only
through proceedings provided for by statute.

Even in states where the joinder of the wife in a con-
veyance or mortgage of the homestead is required it may
be lost by abandonment by the owner whether his wife
consents to such abandonment or not.

265. Rights of Surviving Members of Family in Home-
stead—Power to Devise.

The homestead right is meant for the protection of the
family. For this reason it usually continues after the
death of the owner in favor of the widow during life or
widowhood, and thereafter in favor of children during
the minority of the younger of them at least.

Whether the owner of a homestead may devise it, and
the effect of such devise, must depend upon the local
statutes. In some states a devise of a homestead is valid
and the testator may charge it with debts and legacies
at his option, subject usually to the widow’s right to
assert her election as against some other provision of the
will in her favor.* In many states, however, the owner
of a homestead cannot by will deprive the wife and minor
children of its benefits.*

Though in most jurisdictions a homestead must be
established during the life of the husband, statutes of
several states provide for what is known as probate home-
stead. Under these a homestead may be set apart to
the widow or minor children out of the property of one
who has acquired no homestead during his life.*

1 Richardson ». Woodstock Iron Co., 90 Ala. 266, 9 L. R. A. 348;
Smith v. Pearce, supra.

2 Hinsey v. Hinsey, 92 Ky.164.

?See Turner v. Scheiber, 89 Wis. 1; In re Madden, 104 Wis. 61.

4 Waples on Homest. 456; In re Wells’ Est., 63 Vt. 116.

6 See Steiner v. McDaniel, 110 Ala. 409; Norris ». Morrison, 45 N. H.
250 HOMESTEAD

266. Sale and Mortgage of Husband’s Exempt Chat-

tels.

In the absence of some provision of the written law, a
sale or mortgage by the husband of his exempt personal
property is subject to no restrictions.1_ In several states,
however, a sale or mortgage of exempt personalty must
be with the consent of the wife or under order of the court.?

490; Lindsay v. Brewer, 60 Vt. 627; Mercier ». Colace, 9 Allen (Mass.),
242.

1 Goldman v. Smith, 17 Ind. 152.

2 See Singer Mfg. Co. v. Cullaton, 90 Mich. 639; How. Stat. Mich.,
1882, sec. 7686; Rev. Stat. Wis., 1898, sec. 2313; Georgia Code, 1895,
sec. 5914; Rev. Stat. Ind., 1896, secs. 703, 704; Kan. Gen. Stat., 1897,
Chap. 118, sec. 9; Baker ». Baker, 69 Ill. App. 461.
CHAPTER XXII

THE COMMUNITY SYSTEM

267. Origin and Nature.

In a number of our states and dependencies a matri-
monial property scheme exists similar to that commonly
prevailing in continental Europe, founded upon the civil
law as distinguished from the English common law, upon
which latter the matrimonial jurisprudence of most of
our states is based.1. The central idea of this system is an
equal division between spouses of the matrimonial gains
or acquests as they are called, and its dominant purpose
is to place husband and wife on a footing of at least approx-
imate equality with regard to their property rights, which,
as we have seen, the common law failed to do.?, Though
each community state has worked out its own scheme to
some extent, and to some extent in its own way, this dom-
inant idea is always quite fully preserved. The system
itself and much of its detail is said to have been borrowed
from the Spanish law.? The community system is so pe-
culiar and exists in so few states that any detailed discus-

1The community system exists in La., Tex., N. Mex., Ariz., Cal.
Nev. and Wash., Porto Rico and the Philippines, and, though it is not
strictly one of our insular possessions, in Cuba.

2 Cole’s Widow v. His Executors, 7 Mart. (La. Ann., N. 8.) 41, 18
Am. D. 241; Saul ». His Creditors, 5 Martin (La. Ann., N. 8.), 569,
16 Am. D. 212; Meyer v. Kinzer, 12 Cal. 247, 73 Am. D. 538; Hall v.
Hall, 41 Wash. 186, 111 Am. St. R. 1016.

? As to the origin and history of the community system, see Saul
»v. His Creditors, supra; Cole’s Widow v. His Executors, supra; Howe’s
Stud. in the Civil L. (2d Ed.) 187 et seq.; Cartwright v. Hollis, 5 Tex.
165. Except in Louisiana, Texas and New Mexico it is the creature of
statutes, though these statutes are construed with reference to the
earlier community law.

251
252 THE COMMUNITY SYSTEM

sion of it is out of the question in an elementary work.
Briefly, however, all property of married persons where
the system prevails falls into two general classes:

1. Separate property of the husband and wife respec-
tively, embracing all property owned by either at marriage
and all acquired afterward by gift, devise or descent,
and all property acquired by purchase with, or in exchange
for, separate estate, and, in most states, the rents, issues
and profits of separate property.

2. Community property, or all other acquisitions of
either husband or wife or both during the marriage.'! In
short, all property that does not square with the statu-
tory requisites of separate property is, with few exceptions,
community property.”

268. Incidents of Community Ownership.

The community system has little or no bearing upon
the personal rights and duties of the marriage relation.
Turning to property rights, it should be noted that curtesy
and dower are naturally unknown to it. During coverture
the power to manage and control the community prop-
erty for the benefit of the spouses and the family is in
the husband. In fact, it seems chargeable with all obli-
gations incurred by the husband during coverture that
are not contracted for his sole benefit,’ and any debt
arising within the period of the coverture is prima facie
a community debt and binding upon the community
property.‘ The entire use, control and disposition of the
community property are in the husband during coverture.®

18ee Cal. Civ. Code, secs. 162, 163, 164.

2 See Hawkins v. Front St. Cable Co., 3 Wash. 592, 28 Am. St. R. 72,
16 L. R. A. 808, and elaborate note to Nelson ». Sargent, in 126 Am.
St. R. 99.

3 Adams v. Knowlton, 22 Cal. 283; Taylor 1. Murphy, 50 Tex. 291;
Davis ». Compton, 13 La. Ann. 396.

+ Adams ». Knowlton, supra.

5 Warburton v. White, 176 U. S. 484; Spreckles . Spreckles, 116 Cal.
339, 58 Am. St. R. 170, 36 L. R. A. 497. See, however, Holyoke 2.
Jackson, 3 Wash. T. Rep. 2365.
THE COMMUNITY SYSTEM 253

So far as its devolution and descent are concerned, it
resembles joint tenancy more than anything else known
to the common law. Hither spouse may usually dispose
of his or her moiety by will,! and in case of intestacy it
passes to his or her descendants. It is also generally
provided that in cases of intestacy, where there are no
descendants, the entire community property, subject to
outstanding debts, shall devolve upon the survivor.?

While every marriage under the community system
presumptively establishes a community of husband and
wife in the acquests or gains, such community may be
excluded by an antenuptial contract properly executed.

1 Harvey v. Sutton, 94 Tex. 79; In re Gilmore’s Est., 81 Cal. 240.
2 Warburton v. White, supra; Varier v. Loris, 48 La. Ann. 717.
CHAPTER XXIII

MARRIAGE SETTLEMENTS AND AGREEMENTS

269. Definition—Nature and Kinds.

The parties to a marriage, whether subsisting or in
contemplation, can make no contract, whether with one
another or with third persons, that will be permitted to
abrogate or substantially alter the personal rights and du-
ties that the law annexes to the marriage relation. It is
largely otherwise, however, with mere rights of property,
as has already been intimated in treating of the wife’s
equitable separate estate.

Primarily and strictly the term marriage settlement,
hereafter termed an antenuptial settlement, means a con-
tract or conveyance entered into or executed before mar-
riage between the prospective spouses, or between either
or both of them and a third person, whereby the owner-
ship, enjoyment or devolution of property are sought to
be fixed according to the intention of the parties rather
than by the rules of law. Antenuptial settlements are
commonly supported by the marriage itself as a considera-
tion.? The term marriage settlement, or more exactly
“postnuptial settlement,” is applied to similar agreements
or conveyances, entered into or executed after marriage,
whereby rights of property are sought to be adjusted or
its enjoyment or devolution similarly fixed or controlled
by rules other than those established by the general law
of husband and wife. This form of settlement naturally
requires a consideration to support it beyond the marriage
itself, unless, of course, it is valid as a gift.?

1 Ryan 0. Dockery, 134 Wis. 434; Hair ». Hair, 10 Rich. Eq. (S.
Car.) 163. See ante, sec. 117.

2 See post, next sec.
3 See post, secs. 286 et seq.

254
MARRIAGE SETTLEMENTS 255

270. Antenuptial Settlements—Consideration.

Not only is marriage a valuable consideration, but in
view of the favor with which the law regards matrimony
and the permanent change that it works in the personal
condition of the parties and in their collateral rights and
duties, it is one of the most cherished and valuable known
to the law, and hence is sufficient in itself to support an
antenuptial settlement, not only between the parties, but
as against creditors of the settler,! and bona fide pur-
chasers from him, in the absence of positive fraud to
which the settlee is a party.”

A settlement, or agreement for a settlement, is valid in
favor of all whom the law deems “ within the influence of
the marriage consideration” if they are also within the
terms of the settlement.* The parties to the marriage
and their children are deemed within the marriage con-
sideration.* Children by a former marriage are likewise
deemed within it by most courts.’ It is generally held,
however, that collateral relatives are not included in
the consideration and cannot sue to enforce a settlement
any more than can strangers, unless there is a valuable
consideration for the settlement moving from them in
addition to the marriage itself.6 Yet where any party

1 Ex parte March, 1 Atk. 159; Magnac v. Thompson, 7 Pet. (U. 8.)
348; Slanning v. Style, 3 P. Wms. 334; Prewit ». Wilson, 103 U. 8S. 22;
Marshall ». Morris, 16 Ga. 368; Smith v. Allen, 5 Allen (Mass.), 454,
81 Am. D. 758; Herring ». Wickham, 29 Gratt. (Va.) 628, 26 Am. R.
405; Skillman v. Skillman, 13 N. J. Eq. 403; Otis v. Spencer, 102 Il.
622, 40 Am. R. 617; Whelan v. Whelan, 3 Cow. (N. Y.) 537, 579.

2 See post, sec. 278; Bridge v. Eggleston, 14 Mass. 245, 7 Am. D. 209;
Magnac ». Thompson, supra.

3 Merritt v. Scott, 6 Ga. 563, 50 Am. D. 365; Michael ». Morey, 26
Md. 239, 90 Am. D. 106. See generally as to who deemed within the
marriage consideration, Bump’s Fraud. Conv. (4th Ed.), sec. 270, and
notes.

‘Trevor v. Trevor, 1 P. Wms. 622; Herring 1. Wickham, 29 Gratt.
(Va.) 628, 26 Am. R. 405; Vason ». Bell, 53 Ga. 416.

5Gale v. Gale, 6 Ch. Div. 144; Vason »v. Bell, supra; Michael ».
Morey, 26 Md. 239, 90 Am. D. 106.

6 Wollaston v. Tribe, L. R. 9 Eq. 44; Gale ». Gale, supra; Merritt 2.
256 MARRIAGE SETTLEMENTS

within the marriage consideration sues in equity for the
enforcement of an antenuptial settlement, the court will
enforce its provisions entire, even in favor of volunteers,
unless creditors intervene.!

271. Same—Failure of Consideration.

Practically always the sole consideration for an ante-
nuptial settlement is a marriage actually consummated.
If it does not take place, the settlement is void, at least
unless the settlor was in fault in preventing it.2, But the
fact that the marriage proves void does not invalidate
the settlement, provided both parties, or at least the
spouse seeking its enforcement, acted in good faith.* If
the consideration is something other than marriage, its
failure invalidates the settlement.

272. Oral Agreements—Statute of Frauds.

The English statute of frauds provides that no action
shall be brought whereby to charge any person upon any
agreement made upon consideration of marriage, unless
such agreement, or some memorandum or note thereof, shall
be in writing and signed by the party to be charged therewith
or his authorized agent.* This provision has been substan-
tially reénacted in most of our states. Consideration
of marriage means a marriage actually taking place, and
not mutual promises to marry, which are not within this
clause of the statute, as earlier explained.* Neither does
it apply where the agreement or settlement, though made
in contemplation of marriage, is based wholly or in part
upon some consideration other than marriage. Notwith-
Scott, 6 Ga. 563, 50 Am. D. 365. But see Neves ». Scott, 9 How. (U.S.)
196, 13 How. 268.

1 Achilles v. Achilles, 137 Ill. 589; Merritt v. Scott, supra.

? Essery v. Cowland, 26 Ch. D. 191; Connor v. Stanley, 65 Cal. 183;
Smith v. Allen, 5 Allen (Mass.), 458, 81 Am. D. 758.

?See Ogden v. McHugh, 167 Mass. 276, 57 Am. St. R. 456; Barclay
v. Waring, 58 Ga. 86.

429 Ch. 2, Chap. 3, sec. 4.

5 See ante, sec. 16.

° Dugert v. Rifmenschneider, 39 Barb. (N. Y.) 417; Riley ». Riley,
MARRIAGE SETTLEMENTS 257

standing this last rule, an oral agreement or settlement
may be void under some other clause of the statute, as
where it is not to be performed within a year, or involves
lands or interests therein.!

273. Same—Part Performance—Creditors.

If an antenuptial agreement for a settlement, voidable
under the statute because not in writing, is voluntarily
performed in whole or in part, not merely by entering
into the marriage, for that is not deemed enough,? but
by an actual transfer before marriage of the property or
interests sought to be affected thereby, the settlement is
valid, at least in equity, both as between the parties,®
and as against creditors of the settlor, unless made with
an intent to defraud them to which the settlee was clearly
a party,‘ and so if they reduce the oral contract for a
settlement to writing before marriage.®

Where the parties after marriage reduce to writing an
oral agreement for a settlement, entered into before mar-
riage and in consideration thereof, the validity of such
latter agreement is not so clear. Under statutes which,
like the English one, simply provide that ‘‘no action shall
be brought” upon an oral contract in consideration of
marriage, the subsequent writing will render the oral
contract valid and enforcible ab initio.6 In states where

25 Conn. 154; Rambolt ». East, 56 Ind. 538, 26 Am. R. 40; Larsen ».
Johnson, 78 Wis. 300, 23 Am. St. R. 404. See 99 N. Y. 29; 27 Ohio, 121.

: But see Houghton ». Houghton, 14 Ind. 505, 77 Am. D. 69. See
ante, sec. 16.

2 Offutt v. Offutt, 106 Md. 236, 124 Am. St. R. 491, 12 L. R. A.
(N. §.) 232; McAnnulty ». McAnnulty, 120 Ill. 26, 60 Am. R. 552;
Hunt v. Hunt, 171 N. Y. 396, 59 L. R. A. 306, and authorities cited.
Compare Moore »v. Allen, 26 Colo. 197, 77 Am. St. R. 255.

3 Houghton v. Houghton, supra; Dugert v. Rifmenschneider, 39
Barb. (N. Y.) 417.

“See post, sec. 278.

5 Browne’s Stat. Fr., sec. 224; Rowell ». Barber, 142 Wis. 304.

6 Crane ». Gough, 4 Md. 332; Buffington v. Buffington, 151 Ind. 200;
Frazier v. Andrews, 134 Ia. 621, 11 L. R. A. (N. S.) 593, Contra,
McAnnulty ». McAnnulty, 120 Ill. 26, 60 Am. R. 552,

17
258 MARRIAGE SETTLEMENTS

oral contracts in consideration of marriage are “void”’
by the express terms of the statute, the reduction to
writing after marriage of an antenuptial agreement for a
marriage settlement will not render it valid, and such
subsequent written agreement is likewise void unless based
upon a new consideration aside from the marriage.’ But
doubtless in all states an actual settlement or executed
transfer of property after marriage, though made in pur-
suance of an oral antenuptial contract, will be deemed
valid between the parties,? though in states like Wiscon-
sin and New York where oral contracts in consideration
of marriage are void, it would probably be valid as to
existing creditors of the settlor as a voluntary postnuptial
settlement merely,* and in other states the prior agree-
ment must be clearly proved as against creditors by evi-
dence other than the recitals of the subsequent instru-
ment of settlement.‘

274. Same—Other Formalities—Marriage Articles—
Recording—Construction.

Aside from the requirement of writing, statutes in a
few states require marriage contracts to be recorded. to
make them effectual as against creditors and subsequent
bona fide purchasers. Beyond this an agreement for a
settlement need be in no particular form. Indeed it is
often impracticable to make a formal settlement at the
time the marriage is arranged, or even in advance of the
marriage itself. What are sometimes called marriage
articles are therefore frequently drawn up hastily, perhaps

1 Rowell v. Barber, 142 Wis, 304.

* Claypool v. Jacques, 135 Ind. 499; Rowell ». Barber, supra; Sat-
terthwaite v. Emley, 4 N. J. Eq, 489, 48 Am. D. 618; Southerland ».
Southerland’s Admr., 5 Bush (Ky.), 591. Compare Reade ». Living-
ston, 3 Johns. Ch. (N. Y.) 481, 8 Am. D. 520; Smith v. Greer, 3 Humph.
(Tenn.) 118; Borst v. Corey, 16 Barb. (N. Y.) 136.

+See post, sec. 289; Reade v. Livingston, 3 Johns. Ch. (N. Y.) 482,
8 Am. D, 520; Rowell ». Barber, supra.

‘ Reade v. Livingston, supra; Satterthwaite v. Emley, 4 N. J. Eq.
489, 43 Am. D. 618.
MARRIAGE SETTLEMENTS 259

on the very eve of the ceremony, leaving the more formal
acts of transfer or execution for a subsequent time. The
ultimate formal execution of the terms of such agreements
or articles will supersede them if in strict conformity
with their terms; ' and equity will enforce the settlement
or the agreement for a settlement if the intention of the
parties can be gathered from the language employed,
construed in the light of surrounding circumstances,
regardless of the absence of technical expressions or the
strict legal meaning of the words employed.? The settle-
ment will be so construed, if possible, as to include in its
benefits the children of the parties, and it has been held
that their inclusion will be presumed unless an intention
to exclude them clearly appears.’

275. Same—Other Considerations Affecting Form.

The precise form which an antenuptial settlement
should take must depend upon the law of the place where
it is entered into, or, in the case of land, upon the law of
the place where it is located. In jurisdictions where the
husband takes no interest in the property of the wife by.
virtue of the marriage, an antenuptial conveyance or
transfer direct to her will usually be effectual, especially
where wives can enjoy and convey in the same manner as
if sole. In states where the husband’s marital rights still
survive, the property should be limited to her sole and
separate use so as to create in her an equitable separate
property under rules already laid down in treating of
equitable separate estate, with or without a clause against
anticipation, or as may seem best to the settlor.* While
in states where the wife can take and hold property at

1See Macq. Hus. & W. 246.

2 Brown v. Ramsey, 74 Ga, 210; Buffington v. Buffington, 151 Ind.
200; Dyelt ». Cent. Trust Co., 140 N. Y. 54. ‘

3 Wallace ». Wallace, 82 Ill. 530; Gorin v. Gordon, 38 Miss. 205;
Michael v. Morey, 26 Md. 239, 90 Am. D. 106; Lafitte ». Lawton, 25
Ga. 305. Where the agreement rests in articles merely, the construc-

tion in favor of children is very liberal. See Story’s Eq., secs. 983, 984.
4See ante, secs. 222, 224; Hamaker v. Hamaker, 88 Ala. 431.
260 MARRIAGE SETTLEMENTS

law the creation of a separate use is usually unnecessary,
still, it may be advisable to create a trust in her favor, or
in favor of both husband and wife during marriage at
least, and with such provisions for children as may be
deemed wise. Further than this, little on this point can
profitably be said, for the form of the settlement must
depend much upon the local law, the character and circum-
stances of the parties, the nature of the interests involved
and the exigencies of the particular case.!

276. Fraud Inter Partes.

A settlement or agreement for a settlement may, like
other contracts and conveyances, be avoided for fraud
practiced upon the settlor. In favor of the wife, at least,
a marriage settlement will be carefully scanned for fraud
or undue influence, and where the transaction appears
unfair or inequitable in itself, or when viewed in the light
of surrounding facts and circumstances, it will usually
be necessary for the husband to show that it was fairly,
freely and understandingly made.’

277. Same—Antenuptial Settlements or Conveyances
in Fraud of Conjugal Rights.

Wherever husband or wife would be entitled to sub-
stantial rights in the property of the other by virtue of
the marriage, such property may be the subject of a con-
veyance fraudulent upon the marriage. Thus, if the wife,
in contemplation of marriage, secretly conveys to a stran-
ger property to which the husband would be entitled jure
mariti, and he marries her in ignorance of the convey-
ance, he may have it set aside as against the grantee, un-

1 Suggestive precedents for marriage settlements will be found in
Jones’s Forms on Conveyancing (6th Ed.), 332 et seq.

* Page v. Horne, 11 Beav. 227; Pierce v. Pierce, 71 N. Y. 154, 27
Am. R. 22; Achilles v. Achilles, 151 Ill. 186; Yarde v. Yarde, 187 Ill.
636; Kessler’s Hst., 143 Pa. 386, 24 Am. St. R. 557, 13 L. R. A. 581.
See also Spurlock », Brown, 91 Tenn. 241; Neely’s App., 124 Pa. 406,
10 Am. St. R. 595,
MARRIAGE SETTLEMENTS 261

less the latter is a purchaser for value and without notice.
Conversely, a secret conveyance of the husband in con-
templation of marriage is usually void in like manner as
to the dower or other marital interest of the wife, who
may claim it notwithstanding, unless no fraud upon her
was intended and there are strong reasons against her
equity.”

278. Fraud Upon Creditors—Amount of Settlement.

An antenuptial settlement in consideration of marriage,
or upon any other fair and adequate consideration, mov-
ing from the wife or others to the benefit of the settlor,
will usually render it valid as against creditors of the
settlor, in the absence of fraudulent intent known to the
settlee at the time of the settlement. This rule has been
applied even where the settlor conveyed his whole estate, #
though doubtless a settlement known by the settlee to be
grossly disproportionate to the settlor’s circumstances
would be deemed fraudulent and void as to creditors of
the latter.®

279. Property Affected.

Generally an antenuptial settlement may exclude all
the marital rights of either or both parties in the property
of the other, provided such intention is clearly expressed.®

1 England v. Downes, 2 Beav. 522; Strathmore v. Bowes, 1 Ves. Jr. 22,
1 White & T. Lead. Cas. 605; Kelley ». McGrath, 70 Ala. 75, 45 Am. R.
75; Ferebee v. Pritchard, 112 N. Car. 83; Cheshire v. Payne, 16 B.
Monr. (Ky.) 618.

2 Fennessey v. Fennessey, 84 Ky. 519, 4 Am. St. R. 210; Clark ».
Clark, 183 Ill. 448, 75 Am. St. R. 115; Stroup ». Stroup, 140 Ind. 179,
27 L. R. A. 523. See also Stewart v. Stewart, 3 J. J. Marsh. (Ky.) 48;
Dudley ». Dudley, 76 Wis. 567, 8 L. R. A. 814.

3 Magnac v. Thompson, 7 Pet. (U. 8.) 348, 393; Prewit ». Wilson,
103 U. S. 22; Clark ». McMahon, 170 Mass. 91; Marshall ». Morris,
16 Ga. 368; Buchanan v. Deshon, 1 Har. & G. (Md.) 280.

4 Herring v. Wickham, 29 Gratt. (Va.) 628, 26 Am. R. 405.

5 Davidson v. Graves, Riley’s Eq. (8S. Car.) 282; Exchange Bank ».
Watson, 13 R. I. 91, 43 Am. R. 13; Harmon v. Ryan, 10 La. Ann. 661.
But compare Herring ». Wickham, supra.

6 Charles v. Charles, 8 Gratt. (Va.) 486, 56 Am. D. 155; Dunlop ».
262 MARRIAGE SETTLEMENTS

Usually the wife’s dower may be barred in most states
by antenuptial agreement or settlement as explained
elsewhere, but only where she receives something of value
in addition to the marriage.! An antenuptial settlement
may include future acquired property as well as that
owned at the time of its execution, but the intention to
include it must appear in terms or be fairly deducible from
the instrument of settlement.’

280. Rescission and Forfeiture.

Before the marriage, or even afterward by consent of
all parties concerned, a settlement may be rescinded,
unless rescission is prohibited by statute.? But the hus-
band and wife cannot alter or rescind it after marriage to
the prejudice of children.t The rights of the parties are
not altered by misconduct, however,’ nor are they forfeited
by divorce in the absence of a provision in the instrument.®
But the fact that an antenuptial or postnuptial settlement
has been made between the parties may affect the question
of alimony or division of the property upon divorce.’

Lamb, 182 Ill. 319; Christy ». Harmon, 163 Ill. 225. It is held in some
states, however, that the widow’s rights in the homestead cannot be
barred by an antenuptial settlement, for children usually have an
interest in its existence and preservation. Spencer ». Boardman, 118
Tl. 553; Young v. Hicks, 92 N. Y. 235.

1 See ante, sec. 215.

* Neves v. Scott, 9 How. (U. S.) 196; Berland ». Welch, 162 N. Y.
104; McNutt v. McNutt, 116 Ind. 545, 2 L. R. A. 372; Cole ». Am.,
etc., Mission Soc., 64 N. H. 445. ‘

3 Harper v. Scott, 12 Ga. 125; Kesler’s Est., 143 Pa. 386, 24 Am. St.
R. 557, 13 L. R. A. 581; Peet v. Peet, 81 Ia. 172.

4 Gorin ». Gordon, 38 Miss. 205; Tabb v. Archer, 3 Hen. & M. (Va.)
399, 3 Am. D. 657.

5 Jackson v. Jackson, 222 Ill. 46, 6 L. R. A. (N. 8.) 785; Fisher ».
Koontz, 110 Ia. 498; York v. Ferner, 59 Ia. 487.

*See Head v. Harvard College, 111 Mass. 209, and cases cited,
where it was held that a provision for the wife “during continuance of
the marriage” was revoked by divorce. See also Clarke v. Loth, 11
Til. 105; Jordan »v. Clark, 81 Ill. 465.

7 See post, secs. 422, 425, 426; 2 Nelson’s Div. & Sep., sec. 965.
MARRIAGE SETTLEMENTS 263

POSTNUPTIAL SETTLEMENTS

281. In General—Consideration.

A postnuptial settlement differs from a settlement or
agreement for a settlement made before marriage in the
fact that the marriage, being past, can afford no considera-
tion to sustain it. Unless there be some new and other
consideration, therefore, a postnuptial settlement can be
supported only as a voluntary conveyance or gift both
as between the parties and as to creditors of the settlor
and bona fide purchasers from him.!

282. Validity as Between the Parties.

By the common law, as we have seen, husband and
wife could not contract together, and a conveyance from
one to the other was void in law.? In equity, however,
a grant from husband to wife was valid under the doctrine
of the wife’s separate use, and the doctrine was often re-
sorted to to uphold postnuptial conveyances and settle-
ments between spouses where there were equitable reasons
why they should be enforced, as where they were upon a
valuable or meritorious consideration moving from the
wife or constituted a reasonable settlement or provision
for her.? Indeed it is still the rule in many states, not-
withstanding the liberal married women’s acts and the
power of wives to acquire and hold legal separate estates,
that a conveyance direct from one spouse to the other is
void at law, though it will be sustained in equity if it is
such a conveyance as would be valid at law if made with
the intervention of a trustee, and that in such cases the
husband will be held as trustee of the legal title for the
benefit of the wife. The operation of the rule that a
conveyance from one spouse directly to the other is void

1Schouler’s Dom. Rel. (5th Ed.), sec. 184.

2 See ante, sec. 185.

4 Shepherd v. Shepherd, 7 Johns. Ch. (N. Y.) 57, 11 Am. D. 396;
Moore v. Page, 111 U. 8. 117, and cases cited; Sims v. Ricketts, 35. Ind.
181, 192, 9 Am. R. 679. See ante,:secs. 220 et seq.; post, sec. 286.

4 Moore v. Page, supra; Sims v. Ricketts, supra; Barnum v. Le
Master, 110 Tenn. 638, 69 L. R. A..353, and note at page 357; Ogden
264 MARRIAGE SETTLEMENTS

in law, is avoided by conveying to a third person who in
turn conveys to the spouse intended as grantee.’

283. Same—Effect of Statutes on Conveyances Be-
tween Husband and Wife.

The diversity of the provisions of modern married
women’s acts, as well as the conflicting constructions
placed by courts of different states upon statutes similar
or identical in wording, makes it impossible to give a de-
tailed exposition of their effect upon the power of hus-
band and wife to deal directly with one another. In
some states husband and wife are expressly empowered
to deal together as if single. Statutes simply empowering
the wife to hold and ‘‘convey real and personal property
as if unmarried,” have been construed by some courts
as permitting conveyances directly between spouses,’
though others hold that inasmuch as the husband was
as fully disabled at common law from taking by the con-
veyance of the wife as she was from granting to him, an
express statute is necessary to make her conveyance di-
rectly to him valid at law, though it is usually good in
equity, at least where it is based upon a valuable considera-
tion.*

v. Ogden, 60 Ark. 70, 46 Am. St. R. 151; Turner v. Shaw, 96 Mo. 22,
9 Am. St. R. 319; Albright ». Albright, 70 Wis. 528. In Indiana and
Nebraska the distinction between law and equity in this regard seems
to be at present ignored. Building Assn. v. Scanlan, 144 Ind. 11;
Currier v. Teske, 84 Neb. 60, 133 Am. St. R. 602. See also post,
next sec.

1 Jewell v. Porter, 31 N. H. 34; Leach v. Rains, 149 Ind. 152. See
also post, sec. 284, and cases cited.

2 See statutes in Ala., N. H., N. Y., N. Dak., R. I., Wis., and proba-
bly other states.

3 Allen v. Hooper, 50 Me. 371; Wells ». Gaywood, 3 Colo. 487; Ran-
som v. Ransom, 30 Mich. 328; Despain v. Wagner, 163 Ill. 598; Savage
v. Savage, 80 Me. 472; Burdens v. Amperse, 14 Mich. 91, 90 Am. D.
225. ;

‘White v. Wager, 25 N. Y. 328; Dean v. Metropolitan R. Co., 119
N. Y. 540; Aultman ». Obermeyer, 6 Neb. 260. But see Currier ».
‘Teske, 84 Neb. 60, 183 Am. St. R. 602.
MARRIAGE SETTLEMENTS 265

284. Same—-Under Statutes Requiring Joinder of
Husband in Wife’s Deeds.

It is generally agreed, however, under statutes requiring
the husband to join in conveyances by the wife, that he
cannot by such joinder make valid her conveyance di-
rectly to himself, for the reason that he cannot be both
grantor and grantee in the same deed. This difficulty is
overcome by a grant by both spouses to a third person
who in turn conveys to the husband.!

285. Fraud Between the Spouses—Presumptions.

The relation of husband and wife is intensely confiden-
tial and implies mutual trust and confidence, easily sus-
ceptible of grave abuse, particularly on the part of the
husband. It is therefore laid down that where the husband
has obtained from the wife a conveyance or settlement
apparently adverse to her interests, the burden is upon
him to show that it was freely given and fairly obtained.’
On the other hand, for the wife to induce a conveyance
of property from her husband after having committed
adultery of which he has no knowledge, or in contempla-
tion of adultery, has been held such a fraud as entitles
him to a revocation of the gift.’

286. Validity of Postnuptial Settlements and Convey-
ances as Against Creditors and Subsequent Purchasers
—In General.

Postnuptial settlements and conveyances between hus-

1 Johnson v. Jouchert, 124 Ind. 105, 8 L. R. A. 795; Worrell ». Drake,
110 Tenn. 303 (1903); Bohannon »v. Travis, 94 Ky. 59; Ricom ».
Brandenstein, 98 Cal. 465, 35 Am. St. R. 192, 20 L. R. A. 702. Where
the statute contains an additional provision that “husband and wife
may contract with each other,” her deed direct to him is good at law.
Osborne ». Cooper, 113 Ala. 405, 59 Am. St. R. 117.

2 Darlington’s App., 86 Pa. 512, 27 Am. R. 726; Boyd v. De La
Montagnie, 73 N. Y. 498, 29 Am. R. 197; Walker v. Nicrosi, 135 Ala.
353.

3 Evans v. Evans, 118 Ga. 890, 98 Am. St. R. 180. See also Dicker-
son v. Dickerson, 24 Neb. 530, 8 Am. St. R. 218, where the conveyance
to the wife was set aside on the ground that three years after im-
portuning it from the husband she abandoned him without cause.
266 MARRIAGE SETTLEMENTS

band and wife are either voluntary, i. e., without consid-
eration other than favor or affection, or they are for a val-
uable consideration. In either case they may be deemed
fraudulent and void as to creditors of the settlor or grantor
or subsequent purchasers from him. They are subject, in
fact, to the general law of fraudulent conveyances as modi-
fied by a few special rules growing out of the peculiarities
of the matrimonial relation.!

287. Same—The Statute of 13 Elizabeth—Husband
and Wife as Purchasers for Value.

The statute of 13 Elizabeth, c. 5, provides in substance
that all conveyances or transfers of property, real or
personal, made with intent to delay, hinder or defraud
creditors, shall be void as against them. This statute is
said to be merely declaratory of the common law, and
had been received as such or is substantially reénacted
in all the states of the Union.? The statute, however, is
not intended to affect the rights of bona fide purchasers
or those who have paid value for property of a debtor
without notice or knowledge of his fraudulent intent, a
principle read into the statute even though not expressed
in terms. Under this rule the wife may be a bona fide
purchaser from the husband or the husband from the
wife. Owing, however, to the great facilities for fraud
growing out of the marriage relation, it is generally held
that if a conveyance or settlement is made by the hus-
band upon the wife, who claims as a purchaser for value
and bona fide, the burden is upon her, as against his exist-
ing creditors, to show by clear and satisfactory evidence
that she paid an adequate consideration therefor out of
her separate property or estate, or that some third person

1 See post, next sec., and post, sec. 300.

? Bisph. Eq. (8th Ed.), secs. 240, 241; Cathcart v. Robinson, 5 Pet.
(U. 8.) 264; Robinson v. Holt, 39 N. H. 557, 75 Am. D. 233.

3 Stover v. Herrington, 7 Ala. 142, 41 Am. D. 86.

‘Lady Arundel v. Phipps, 10 Ves. 145; Steadman ». Wilbur, 7 R. 1.
481.
MARRIAGE SETTLEMENTS 267

paid it for her.'' It seems that some courts go even fur-
ther and require her to show the actual bona fides of
the transaction,” and this is especially true where there
were suspicious facts and circumstances. In any case,
however, the fraudulent intent of the husband participated
in by the wife will render the conveyance void as to cred-
itors, though an adequate consideration was paid out of
her separate estate.

288. Same—Settlements by Third Persons.

Where a third person conveys property to husband or
wife no presumption of fraud arises in favor of his creditors
unless facts or circumstances of suspicion appear, and
the burden is upon the latter to show that the conveyance
was voluntary, or that there was a fraudulent intent to
which the grantee was a party. But even where a con-
veyance or settlement in favor of the wife proceeds from a
third person, if the husband and not the wife paid or fur-
nished the consideration, the transaction may be deemed
fraudulent as to the creditors of the husband and the prop-
erty subjected to his debts.

289. Same—Voluntary Settlements—Husband’s Serv-
ices and Earnings.

Generally the law requires that one be just before he is
generous. It is therefore the general rule that a settle-
ment by the husband upon his wife or family will be
deemed fraudulent and void as to his existing creditors
if it is voluntary and renders him insolvent and unable
to pay his existing debts, but is valid as against them
if the husband was perfectly solvent at the time of the
settlement and immediately afterward, unless there was

1 Johnson v. Johnson, 72 Ill. 489; Winter ». Walter, 37 Pa. 155;
Horton ». Dewey, 53 Wis. 410; Evans v. Rugee, 57 Wis. 623. See also
Sawyer v. Metters, 133 Wis. 350, 358.

? Kirchman »v. Corcoran, 51 Neb. 191; Robinson v. Clark, 76 Me. 493;
Herzog v. Weiler, 24 W. Va. 199; Woolson’s App., 51 Pa. 451; Stevens
v. Carson, 30 Neb. 549.

4 See ante, sec. 287.
268 MARRIAGE SETTLEMENTS

an actual intent to hinder, delay or defraud them.! Sub-
sequent creditors have no right to complain of such a
settlement, unless the husband made it with the intent
that the hazards of a business or speculation in which he
was about to engage should be virtually thrown upon
them.?

Furthermore, fraud upon creditors cannot be predicated,
as a rule, upon a transfer of exempt property even by
husband to wife.* Neither can creditors of the husband
assert any claim against the property of the wife or the
profits of a business actually belonging to and conducted —
by her in states where she has practically the rights of a
feme sole with respect to her separate property, merely be-
cause her husband gives her his labor and services in man-
aging it or in carrying on her separate business in which
it is embarked, for creditors have no property interest in
the services of their debtors, nor any right to compel them
to labor for their benefit. Neither, it seems, are the
creditors of the husband entitled to claim for labor or
money expended by the husband in improving the sepa-
rate real estate of the wife, where she has made no agree-
ment to compensate him therefor.> Of course where

1 Jones v. Clifton, 101 U. 8. 225, 227; Cook v. Holbrook, 146 Mass.
66; Sims v. Ricketts, 35 Ind. 181, 9 Am. R. 679; Harvey v. Gedding,
77 Neb. 289, 124 Am. St. R. 841; Wheeler & Wilson Mfg. Co. v. Mona-
han, 63 Wis. 198.

2Sternman v. Ashdown, 2 Atk. 477; Freeman v. Pope, L. R. 5 Ch.
App. 538; Smith ». Voges, 92 U. 8. 183; Sommermeyer v. Schwartz, 89
Wis. 66, 71, and cases cited; Jenkins 7. Clement, 1 Harper’s Eq. (S. C.)
72, 14 Am. Dec. 698.

3See Allen v. Perry, 56 Wis. 178; Kettleschlager v. Ferrick, 12 8.
Dak. 455, 76 Am. St. R. 623, 626, note; White Sewing Machine Co. 2.
Wooster, 66 Ark. 382, 74 Am. St. R. 100; Nance v. Nance, 84 Ala. 375,
5 Am. St. R. 378.

4 Abbey v. Deyo, 44 N. Y. 343; Mayers v. Kaiser, 85 Wis. 382, 39-Am.
St. R. 849, 21 L. R. A. 623, and note; White ». Hildreth, 32 Vt. 256;
McCormick Harvester Mach. Co. v. Ponder, 123 Ia. 17; Osborne 2.
Wilkes, 108 N. Car. 651. Compare Glidden v. Taylor, 16 Ohio, 509,
91 Am. D. 98.

‘Washburn v. Sproat, 16 Mass. 449; White ». Hildreth, supra;
MARRIAGE SETTLEMENTS 269

there is a valid agreement to compensate the husband,
whatever is due him thereunder may be reached by his
creditors in the hands of the wife, and in some states where
the husband has, by his labor and skill, but without com-
pensation or an agreement therefor, contributed to the
income or value of her separate estate, equity will appor-
tion so much of the net profits as are due to his labor and
skill between the wife and the husband’s creditors, so far
as such profits are in excess of the family expenses paid
by her. Where the wife has separate property and busi-
ness she probably may, in most jurisdictions, make a valid
contract to compensate him for carrying it on as her agent.?

290. Validity of Postnuptial Settlements Against Sub-
sequent Purchasers.

By the statute of 27 Elizabeth, c. 4, all conveyances
and transfers of lands are void if made with intent to
defeat the rights of subsequent bona fide purchasers. This
statute is common law or has been reénacted in most of
our states, and in many of them it extends to personalty
as well as real property. Conveyances between husband
and wife are fully within it.

Under the English decisions construing this statute,
a voluntary conveyance of real property, at least, from
one spouse to the other, is deemed fraudulent and void
as matter of law as against a subsequent purchaser for
value, even though he took with notice of the prior con-

Nance v. Nance, 84 Ala. 375, 5 Am. St. R. 378; Corning ». Fowler, 24
Ta. 584; Frefethen ». Lyman, 90 Me. 376, 60 Am. St. R. 271, 38 L. R. A.
190. But see Caswell v. Hill, 47 N. H. 407; Glidden ». Taylor,
supra.

1 Penn v. Whitehead, 17 Gratt. (Va.) 503, 94 Am. D. 478; Boggess
v. Richards, 39 W. Va. 567, 45 Am. St. R. 938, 26 L. R. A. 537; Trap-
nell ». Conklyn, 37 W. Va. 242, 38 Am. St. R. 30; Talcott v. Arnold, 54
N. J. Eq. 570. Compare Talcott ». Arnold, 55 N. J. Eq. 519. See
also Patton v. Smith, 130 Ky. 819, 23 L. R. A. (N. 8.) 1124, and note;
Edelmuth v. Wybrant, 21 Ky. Law, 929.

? Talcott v. Arnold, 55 N. J. Eq. 519; Bank v. Guenther, 123 N. Y.
568, 20 Am. St. R. 780.
270 MARRIAGE SETTLEMENTS

veyance.! In this country, however, by the weight of
. authority, the subsequent sale is at most prima facie
evidence that the prior voluntary settlement was fraudu-
lent as to a subsequent purchaser for value who took with
notice of such settlement from the record or otherwise.”

1 Doe ». Manning, 9 East, 59; Doe ». Rusham, 17 Q. B. 724; Evelyn
v. Templar, 2 Bro. Ch. 148.

2See Cathcart v. Robinson, 5 Pet. (U. S.) 264; Beal ». Warren, 2
Gray (Mass.), 447; Gilliland ». Fenn, 90 Ala. 230, 9 L. R. A. 413.
Compare Fleming ». Townsend, 6 Ga. 103, 50 Am. D. 318.
CHAPTER XXIV

ACTIONS BY AND AGAINST HUSBAND AND WIFE

291. In General—Suits Between Husband and Wife—
Law and Equity.

Much that might have been appropriate to this head
has already been stated or will be noted later on. What
is given here is therefore largely by way of a summary.

Owing chiefly to the familiar doctrine of marital unity
or identity, neither spouse may sue the other at common
law.! In equity, however, the independent existence of
the wife is recognized, as we have seen, to the extent of
allowing her a separate estate,? and whenever she has
equitable rights or titles to protect as against the husband,
or claims such rights or titles adversely to him, or incurs
obligations in his favor under the rules of equity, she
may in equity sue him or be sued by him. Thus, she
may sue him to realize her equity to a settlement, or for
the recovery or protection of her equitable separate es-
tate.’

But even in equity the wife, being presumptively liable
to the control and influence of the husband, must be
represented in her suits by her trustee or next friend when-
ever the husband is an adverse party.*

1 See ante, secs. 131, 185; Dicey’s Parties to Actions, 174, 279; Rose-
berry v. Roseberry, 27 W. Va. 759; Chestnut ». Chestnut, 77 Ill. 346.

2 See ante, Chap. XIX.

3 See ante, sec. 230; Lombard »v. Morse, 155 Mass. 136, 14 L. R. A.
273, and authorities cited; Frankel v. Frankel, 173 Mass. 214, 73 Am.
St. R. 266, and note therein, p. 271.

4See Mitford’s Eq. Pl. 28; Story’s Eq. Jur. (10th Ed.), sec. 1366, et
seq.; Frankel v. Frankel, 173 Mass. 214, and notes to that case in 73 Am.
St. R. 268.

271
272 SPOUSES AS PARTIES TO ACTIONS

292. Same—Under Statutes.

Statutes conferring upon married women a legal sep-
arate estate, and otherwise enlarging their civil rights
and capacities, often give them the right to sue and be
sued as if sole. How far these statutes sanction suits be-
tween husband and wife depends so much upon their
varying scope and phraseology, and upon interpretations
often inconsistent or conflicting, that the rules in any
particular jurisdiction must be sought in local books. It
is enough to say here that statutes authorizing suits be-
tween spouses as to their separate property do not au-
thorize them to sue one another generally in contract,'
nor do such statutes, or statutes authorizing married
women to sue as if sole for injuries to person or character,
authorize suits between spouses for personal torts.”

293. Suits by Husband and Wife Against Third
Persons.

The husband may sue alone upon all contracts made
with him in his own right, or for the recovery or protection
of his own property, and for all injuries to his own person
or character. Furthermore, he may sue alone for all items
of damage growing out of injuries to the person or char-
acter of the wife that are based upon his loss of her society
and services or the expense of her care and cure,* and for
all injuries strictly to the consortium.‘ At common law,
except as above, husband and wife must join in all ac-
tions for injuries to her person or character, whether in-
‘flicted before or during coverture. There are several
reasons for this rule. In the first place, the wife cannot sue
alone during coverture for she has no legal existence sep-

1 See Crowther ». Crowther, 55 Me. 358.

* See ante, sec. 131; Peters v. Peters, 42 Ia. 182. That the parties
were divorced before action brought does not change the rule‘as to
personal torts committed during coverture. Abbott ». Abbott, 67 Me.
304; 24 Am. R. 27; Strom ». Strom, 98 Minn. 427, 6 L, R. A. (N.S.)
191, and note.

5 See ante, secs. 138, 139.

4 See ante, secs. 142.ct seq.
SPOUSES AS PARTIES TO ACTIONS 273

arate from the husband, and he is entitled to the proceeds
of a recovery during marriage. In the second place, the
husband cannot sue alone for the wife is the meritorious
cause of action, and if he dies before or pending suit she
is entitled to recover alone unless the cause of action was
previously released by him.!

Where a chose in action is based upon an express promise
to the wife during coverture, the husband may sue alone,
or he may permit her to join with him for its recovery and
thus concede her an interest, so that if he dies before judg-
ment she may proceed alone, and she is entitled as sur-
vivor to enforce a judgment recovered in their joint names
during his life. If he sues alone the right to recover or to
the judgment recovered survives to his personal repre-
sentatives.? If no action is brought during his life, how-
ever, the right to recover is in the widow.’

Where the husband sues to reduce to possession the
wife’s choses in action accruing to her before marriage,
she must join, for she is the meritorious cause of action,
and if he dies before judgment, the cause of action sur-
vives to her.* Statutes abolishing the husband’s rights in
the wife’s antenuptial choses in action, however, usually
give her power to sue for them alone and in her own name.

In actions for the recovery of the wife’s lands or for in-
juries to the inheritance, husband and wife must usually
sue together at common law, and the same is true where
the title is vested in them jointly.’ For mere trespass as
distinguished from waste, however, the husband might
sue alone. As the rents and profits of the wife’s lands

1 See ante, sec. 139; 1 Chit. Pl. 73, 75.

21 Chit. Pl. 30.

3 Boozer v. Addison, 2 Rich. Eq, (8. Car.) 273; 46 Am. D. 43 and
note. See ante, sec. 171.

‘ Oglander v. Baston, 1 Vern. 396; Boozer v. Addison, supra; Norval
v. Rice, 2 Wis. 22; Clapp v. Stoughton, 10 Pick. (Mass.) 463; Prescott v.
Brown, 23 Me. 305, 39 Am. D. 623.

5 Babb v. Perley, 1 Me. 6; Westcott v. Miller, 42 Wis. 454, and cases
cited.

6 See Dicey, Parties to Actions, 392, 393.

18
274 SPOUSES AS PARTIES TO ACTIONS

accruing during coverture belong to the husband abso-
lutely, he or his representatives can alone sue for their
recovery.!

As marriage at common law vested the title to the wife’s
chattels in the husband absolutely, he must sue alone to
recover them or damages for their injury or conversion.”
' For torts to the wife’s property before marriage the spouses
should join.®

As the wife may sue the husband in equity for the en-
forcement and protection of her separate property rights,
plainly she may sue third persons to the same end.* In
such cases the husband sometimes joins with the wife,
but the correct practice is said to be for her to sue by her
trustee or next friend and to join her husband as defend-
ant so as to bar any adverse claims that he may assert
upon the basis of his marital rights or otherwise, and
generally for her better protection against him.® Stat-
utes, however, that quite generally permit wives to sue
alone, both at law and in equity, for the recovery and pro-
tection of their separate property or estates, render further
consideration of the practice unnecessary.

-294. Suits by Third Persons Against Husband and
Wife.

At common law the wife could seldom be sued alone.®
If she entered into a contract during coverture it could not
be enforced against her, or even against her husband, up-
less she acted as agent for him, either by appointment or
of necessity. In this last case the obligation was solely
his, and the action was against him alone.’ The husband

1 Clapp »v. Stoughton, 10 Pick. (Mass.) 463; Babb v. Perley, supra.

2-Blackburné ».’ Greaves, 2 Lev. 107; Wittingham v. Broderick, 7
Mod. 103.

*1 Chit. Pl. 73.

4 Lady Elibank v. Montolieu, 5 Ves. Jr. 737.

5 Story’s Eq. sec. 1380; Wake v. Parker, 2 Keen, 59; Johnson v. Vail,
14.N. J. Eq. 423.

6 See ante, secs. 132, 133; post, sec. 296.

7 See post, secs. 310, 311; ante, secs. 119, 121.
SPOUSES AS PARTIES TO ACTIONS 275

was liable at common law for the antenuptial debts of
the wife, but as his liability ceased and hers revived upon
his death before judgment, she must be joined with him
in suits during coverture for their recovery.! For similar
reasons the husband and wife must be joined in actions
for her antenuptial torts.”

As to postnuptial torts, the husband and wife must be
joined in all cases unless she acted under the coercion of
the husband. In the latter case he may be sued alone.®
By statute in many states the wife may be sued alone for
her sole tort, while in others her husband, though still a
“necessary defendant, is not liable to execution upon a
judgment for her sole wrong.‘

Where the wife sued or was sued as executrix or admin-
istratrix the husband joined or was joined with her at
common law. This rule has been changed by statute in
most states.®

The wife may be, and frequently is, defendant in equity
suits by third persons, common cases being actions to
charge her legal or equitable separate estate with her debts
or engagements, or in which some conveyance or settle-
ment in her favor by the husband or others is sought to
be set aside by creditors of the latter. In such cases the
husband must usually be joined. Detailed information
on this subject should, of course, be sought in works on
equity and equity procedure, and in local practice acts
and decisions.’

295. Process Against Husband and Wife.
At common law service on the husband alone is sufficient

11 Chit. Pl. 57. Crawford v. Thompson, 91 Ind. 266, 46 Am.R. 598;
Platner ». Patchin, 19 Wis. 334. :

2 See ante, sec. 182; Brown v. Kemper, 27 Md. 666.

3 See ante, sec. 133.

‘See ante, sec. 135.

5 Dicey’s Parties to Actions, 174, 179.

£1 Daniell’s Ch. Pr. (6th Am. Ed.) 179.

7See Story’s Eq. Pl., secs. 63, 71; 1 Daniell’s Ch. Pr. (4th Ed.)
87-128,
276 SPOUSES AS PARTIES TO ACTIONS

in actions against husband and wife, and service upon her
alone was a nullity. In equity, however, the wife must
be personally served with the subpcena in actions concern-
ing her separate estate,? and generally under modern
statutes personal service of summons or process upon
married women is required in practically all cases,
whether they are sued jointly with their husbands or
alone.’

296. Special Circumstances Affecting Wife’s Capacity
to Sue.

At common law the wife could act as a feme sole when-
ever the husband was an alien who had always resided
abroad, or was civilly dead, or had abjured the realm,‘
and the tendency in this country, as we have seen, is to
regard the rights of the wife with still more favor and to
hold that she may act as if sole and sue and be sued alone
whenever the husband has permanently abandoned her
even though he has not left the state.* Statutes often
announce this rule and even extend it to cases where the
husband refuses or neglects to provide for his wife and
family so that she is obliged to maintain herself and her
children.

297. Coverture Under the Statute of Limitations.

Pursuant to the principle that nothing tolls or inter-
rupts the statute of limitations save what is expressed
in the statute itself, the disabilities of coverture have no
effect on the running of the statute, unless it is so expressly

1 King v. McCampbell, 6 Blackf. (Ind.) 435; McCullough »v. Boyce,
1 Bailey (8. Car.), 521.

? Leavett v. Cruger, 1 Paige (N. Y.), 421; Hollinger ». Mobile Branch
Bank, 8 Ala. 605.

3 See Nicholson v. Cox, 83 N. Car. 44, 35 Am. R. 556.

‘See ante, sec. 184; Dicey’s Parties to Actions, 296, 297. See as
to what constitutes civil death; Avery v. Everett, 110 N. Y. 317, 6 Am.
St. R. 368, 1 L. R. A. 264; Plantner v. Sherwood, 6 Johns. Ch. (N. Y.)
329,

5 See ante, sec. 184.
JUDGMENTS AGAINST WIVES O77

provided.! But the English statute of limitations,? and
the American statutes, until recent years, have quite gen-
erally provided that the coverture of the plaintiff shall pre-
vent its running against her upon causes of action exist-
ing at the time of marriage or accruing during coverture.
Naturally, where the disabilities of married women are
generally removed, coverture has been dropped from the
list of exceptions that will toll or prevent the running of
the statute, and in England and some of our states, the sav-
ing clause of the statute is held impliedly repealed to the
extent that a feme covert has been placed upon the footing
of asingle woman.* Generally, in the absence of an express
provision to the contrary, if the statute has once com-
menced to run as against a woman, her subsequent cover-
ture does not toll or interrupt it.‘

298. Judgments Against Married Women—Pleading
—Estoppel.

The doctrine of estoppel is generally, though not uni-
versally, inapplicable to married women.’ How far they
are bound by judgments against them where common
law disabilities still exist is a question upon which the
courts disagree. By one line of authorities a judgment
against a wife is held absolutely void, though she was
duly served with process and had an opportunity to plead
her coverture in bar and neglected to do so, or the judg-
ment was by confession or on default. This is the logical

1 Vance v. Vance, 108 U. 8. 514.

2 Statute, 21 Jac. 1, c. 16.

3 Lowe v. For, 15 Q. B. D. 667, 676; Brown v. Cousens, 51 Me. 301;
Rosa v. Prather, 103 Ind. 191; Castner v. Walrod, 83 Ill. 171, 25 Am.
R. 369. Contra, North v. James, 61 Miss. 761; see Lippard v. Trout-
man, 72 N. Car. 551.

4See Wood on Lim. (2d Ed.) 580, note 1. Generally, however,
the husband cannot take advantage of the disability of the wife as
to any claim that he might have enforced during coverture, either alone
or in right of the wife, see Gregg v. Tesson, 1 Black (U.8.), 150; Cook ».
Lindsey, 34 Miss. 451; Carter v. Cantrell, 16 Ark. 154; Neal ». Robert-
son, 2 Dana (Ky.), 86.

5 See ante, secs. 183, 250.
278 JUDGMENTS AGAINST WIVES

result of the theory of the absolute merger of the wife’s
identity during marriage. She is legally non-existent,
both so far as concerns her contract and any proceeding
for its enforcement.!' By another line of authorities, a
judgment against a married woman under these circum-
stances, though erroneous, is voidable merely and not
void, and will bind her until reversed or set aside in a
direct proceeding for the purpose, and consequently pur-
chasers without notice at an execution or judicial sale
under such a judgment will be protected.? This view is
usually founded upon the theory of waiver and equitable
estoppel arising from the fact that the feme, by neglecting
to plead her coverture and suffering an apparently valid
judgment, has induced others to part with money in re-
liance thereon;? and innocent third persons have been
held protected by estoppel even in states where a judgment
against the wife on her void contract is likewise void, at
least where she stands by and knowingly permits them to
part with value in reliance upon it. Of course a judgment
or decree in equity under the doctrine of equitable sep-
arate estate will bind the separate property of the wife;
and under statutes giving married women power to con-
tract and to sue and be sued as if sole, judgments against
wives are of the same force and effect as against single
women. Where her common-law incapacities are abro-

1Grifith v. Clark, 18 Md. 457; Parsons ». Spencer, 88 Ky. 305;
Graham v. Long, 65 Pa. 381; Caldwell ». Walters, 18 Pa. 79, 55 Am.
D. 592; Cary v. Dixon, 51 Miss. 593; Higgins v. Peltzer, 49 Mo. 152,
157. Compare Swain v. Lyon, 67 Pa. 436. See note to Smith v. Bor-
den, 11 L. R. A. 585.

2 Ganbette v. Brock, 41 Cal. 78; Howett v. Hale, 5 Lea (Tenn.), 405;
McCurdy »v. Baughman, 43 Ohio, 78; Vick ». Pope, 81 N. Car. 16;
Wilson v. Coolidge, 42 Mich. 112; Green v. Branton, 1 Dev. Eq. (N. Car.)
504. Some authorities appear to hold such a judgment binding unless
the wife seasonably pleads her coverture, Washburn v. Gouge, 61 Ga.
51; Thomas ». Lowry, 60 Ill. 512. See notes to Smith v. Borden, supra,
and Caldwell ». Wilson, 55 Am. D. 599.

3 Ganbette ». Brock, supra; Burke v. Hill, 55 Ind. 419, and authori-

ties cited and discussed.
‘ First Natl. Bank v. Garlinghouse, 53 Barb. (N. Y.) 615.
JUDGMENTS AGAINST WIVES 279

gated only in part, however, a married woman or her
property will, it seems, be absolutely bound by a judg-
ment on her contract only where the record shows a trans-
action within her statutory capacity ;! otherwise the judg-
ment will be void or voidable depending upon which of
the conflicting views first stated prevails in the particular
jurisdiction.?

A woman cannot, by marrying pending suit on her con-
tract, abate the action or prevent personal judgment being
entered and enforced against her as if she were sole.®

Generally where coverture is a defense, it must be
specially pleaded, though in some states it may be shown
under the general issue. 4

1 Cary v. Dixon, 51 Miss. 593; Swayne v. Lyon, 67 Pa. 436.

2 Canal Bank »v. Partee, 99 U. 8. 331; Brown ». Kemper, 27 Md. 667.

3 Doyley v. White, Cro. Jac. 323; Cooper v. Hunchin, 4 East. 521;
Roosevelt ». Dale, 2 Cow. (N. Y.) 581; Phillips ». Stewart, 27 Ga. 402;
Com. v. Phillipsburg, 10 Mass. 78.

4See generally on the subject of this paragraph the note to Cald-
well ». Walters, 55 Am. D. 599. If coverture of the defendant appears ’
on the face of the declaration, it is subject to demurrer.
CHAPTER XXV

EVIDENCE OF OWNERSHIP BETWEEN HUSBAND AND WIFE—
CONFLICT OF LAWS AS TO RIGHTS AND CAPACITIES

299. Evidence and Presumptions as to Wife’s Owner-
ship—Between Spouses.

Where the wife claims property as her separate estate,
either as against the husband or his creditors, the presump-
tions vary with the circumstances of the case, and the de-
cisions with respect to them are not altogether in har-
mony.

Generally, independent of statute, the wife’s posses-
sion of personal property, except under special circum-
. stances, is presumed to be that of the husband, and the
property belongs prima facie to him rather than to her
equitable separate estate,! unless she is carrying on a
separate business in her own name, and the property ap-
parently pertains to it,? or is apparently adapted and
devoted to her exclusive personal use.* The presump-
tion of the husband’s ownership is particularly strong
where the possession appears to be joint,* and this is es-
pecially true as to things of ordinary domestic use within
the common home, or adapted to the general use of the
family.

As to statutory separate property, however, the pre-
sumption in favor of the husband is held in many states to
be inconsistent with the spirit and policy of the married
women’s acts, and the presumption of ownership of per-

12 BI. Com. 435; Whiton v. Snyder, 88 N. Y. 299; Farrell v. Patter-
son, 43 Ill. 52, 59.

2 Peters v. Fowler, 41 Barb. (N. Y.) 467

* Whiton v. Snyder, 88 N. Y. 299.

4 Pier v. Siegel, 107 Pa. 502; Farrell v. Patterson, 48 Ill. 52.

280
EVIDENCE OF OWNERSHIP BETWEEN SPOUSES 281

sonalty is in favor of the wife, at least where she has ex-
ercised separate dominion over it.?

That the wife permits the husband to have the custody
of what is proved to be her separate money or property
does not raise a presumption of a gift to him. Indeed it
is often held that her intention to make a gift to him must,
in view of his presumed influence, be clearly proven.?
Even though she permits him to use it in his business the
presumption is usually in favor of a loan and not a gift,®
though if he uses it for the support of the family with her
knowledge and apparent consent a gift will usually be in-
ferred in the absence of some showing to the contrary.

Where the community system prevails, all property
purchased by husband or wife after marriage, whether in
their joint names or not, is prima facie community prop-
erty.‘

300. Same as Against Creditors—Estoppel.

The general rules regarding transfers between husband
and wife and as to fraud upon his creditors therein have
been discussed elsewhere.’ The presumptions of the hus-
band’s ownership of property claimed by the wife are at
least as strong if not stronger in favor of his creditors than
in favor of himself where he is the claimant, and no doubt
these presumptions operate against the creditors of the
wife. The wife may permit the husband to take or hold

1 Wyatt v. Wyatt, 31 Oreg. 531, 538; Patterson v. Kicker, 72 Ala. 406;
McCarty »v. Quimby, 12 Kan. 494; Farwell ». Cramer, 38 Neb. 61;
Oberfelder v. Kavanaugh, 29 Neb. 428. See Fritchey Lumber Co. ».
Milling Co., 19 Pa. Superior Ct. 326. Compare Groner v. Scholz, 154
Mo, 415; Winter v. Walter, 37 Pa. (1 Wright) 155; Farrell v. Patterson,
supra.

2 Heath v. Slocum, 115 Pa. 549; Toms v. Flack, 127 N. Car. 420.

3 But see Duval v. Duval, 153 Ill. 49.

4 Nilson v. Sarment, 153 Cal. 524, 126 Am. St. R. 91; Davis v. Green,
122 Cal. 364; Denegre v. Denegre, 30 La. Ann. 276. But see Cal. Civ.
Code, sec. 164, (1901).

5 See ante, secs. 286 et seq.

*See Walker v. Reamy, 36 Pa. 410; Oberfelder v. Kavanaugh, 29
282 PROPERTY OF SPOUSES—CONFLICT OF LAWS

title to her property in his own name, or to use it in his
business without forfeiting her rights therein. Where this
is done with actual intent to defraud creditors or subse-
quent purchasers in which she participates, however, the
property is of course subject to their rights.!_ Ordinarily
such intent is not to be inferred from the fact alone that the
wife permits the husband to retain the legal title or pos-
session of her property. Third parties must have been
mislead, and there must, it seems, have been something in
the circumstances of the case from which it may be in-
ferred that the wife knew, or ought to have known, that
the husband was making use of her property as the basis
of a fictitious credit.2, Doubtless, however, where the wife
permits the husband to take or retain the record title to
her lands and the possession appears to be his, bona fide
purchasers from him may hold it as against her.’

The effect of statutes requiring a registry or schedule
of the wife’s separate property has been stated elsewhere.‘

301. Conflict of Laws as to Property and Contracts
of Husband and Wife.

The rights of the husband in the real estate of the wife,
including courtesy, and her rights in his real property, in-
cluding dower, are determined by the lex loci rei sitae, re-
gardless of the residence or domicile of the parties,® and

Neb. 428; Hunter v. Baxter, 210 Pa. 72; Harr v. Schaffer, 52 W. Va.
207.

1 Swartz v. McLelland, 31 Neb. 646; Hopkins v. Joyce, 78 Wis. 443;
Leete v. State Bank, 115 Mo. 184, 202.

? Marston v. Dresen, 85 Wis. 530; Kemp ». Folsom, 14 Wash. 16;
De Berry v. Wheeler, 128 Mo. 84; 49 Am. St. R. 538. See Leete 2.
State Bank, supra.

* Thomas v. Kennedy, 24 Ia. 397, 95 Am. D. 740; Neal v. Parkerson,
61 Ga. 346. Joint residence of the spouses does not give notice of
interest of the wife, Neal v. Parkerson, supra.

‘See ante, sec. 241; Anderson v. Midbery, 16 S. D. 324.

*Story’s Confl. Laws, sec. 428; Smith v. Macatee, 27 Md. 420, 92
Am. D. 641; Depas v. Mayo, 11 Mo. 314, 49 Am. D. 81; note to Locke 2.
McPherson, 85 Am. St. R. 553.
PROPERTY OF SPOUSES—CONFLICT OF LAWS 283

settlements of such property will be enforced only to the
extent that they are valid by the lex situs.

What rights that either party acquires upon marriage
in the personalty of the other, however, depend upon the
law of their matrimonial domicile. In this country it will
be deemed the domicile of the husband at the time the
marriage takes place, as distinguished from the place of
celebration,! unless the parties at the time of marriage
intend to remove to and reside in another place, and ac-
tually so remove within a reasonable time when, the law of
the latter place and not that of the place of the marriage
will, it is said, determine their marital rights in personal
property.’

Rights in personalty of the spouses acquired after mar-
riage are usually determined by the law of their domicile
at the time of its acquisition.’

Property once vested in either spouse by virtue of the
foregoing rules will not be altered or divested by a change
of domicile to another state, the general rule being that
every state will recognize and protect rights of property
acquired under foreign laws unless they involve a viola-
tion to the policy of the local law, or establish limitations
impossible by its rules.4

A contract between the spouses touching marital rights
in personalty will be enforced elsewhere if valid where
made, even as to after-acquired property, and even though

1 Graham ». First Nat. Bank, 84 N. Y. 393, 38 Am. R. 528; Mason ».
Homer, 105 Mass. 116; Parrett v. Palmer, 8 Ind. App. 356, 52 Am. St.
R. 479; Townes ». Durbin, 3 Met. (Ky.) 353, 77 Am. D. 176; Harral »v.
Harral, 39 N. J. Eq. 279, 51 Am. R. 17; Mason ». Fuller, 36 Conn. 160.

2See Fuss v. Fuss, 24 Wis. 256, 1 Am. R. 180; Harral ». Harral,
supra; Story’s Confl. L. 193; Minor’s Confl. L., sec. 81.

3 McLean v. Davis, 3 Jones’s Eq. (N. Car.) 294, 69 Am. D. 740; Bir-
mingham Waterworks Co. v. Hume, 121 Ala. 168, 77 Am. St. R. 43;
Cade v. Davis, 96 N. C. 189; Kahalan v. Monroe, 70 Ala. 271; State ».
Barrow, 14 Tex. 179, 65 Am. D. 109. Compare Smith v. McAtee, 27
Md. 420, 92 Am. D. 641.

4 Doss v. Campbell, 19 Ala. 590, 54 Am. D. 198; Depas ». Mayo, 11
Mo. 314, 49 Am. D. 81; Smith ». McAtee, supra; McClaim 2. Alshire,
72 Mo. App. 390.
284 PROPERTY OF SPOUSES—CONFLICT OF LAWS

the parties remove to a state where such a contract could
not be validly entered into.!

The capacity of a married woman to contract is gov-
erned, in general, by the law of the place where the con-
tract is made, and not by the law of her domicile, unless
that is also the place of contracting, at least where she is
quite generally capable of contracting by the law of her
domicile; and this rule applies even though she was in-
capable of making the particular contract in question by
the law of her domicile and the contract made elsewhere
was sued in the courts of the latter place.?, Where a wife
who remains at her domicile makes a contract elsewhere
through an agent, her capacity depends upon the law of
the place where the act of agency was performed.* In a
few states, however, where the disability of a married
woman is total, or practically so, the lex domicilii has been
held to determine the validity of her contract made abroad,
at least where the domicile and the place of the forum are
the same.‘ So far as real estate is concerned the validity
of the contracts of a wife is governed by the law ot the
place where it is situated.5

1 Fuss v. Fuss, 24 Wis. 256, 1 Am. R. 180; Decouche v. Savetier, 3
Johns. Ch. (N. Y.) 190, 8 Am. D. 478, and note, Schefferling ». Huff-
man, 4 Ohio, 241, 62 Am. D. 281; McLeod v. Board, 30 Tex. 238, 94
Am. D. 301.

2 Milliken v. Pratt, 125 Mass. 374, 28 Am. R. 241; Baum ». Birchall,
150 Pa. 164, 30 Am. St. R. 797; Union Nat. Bank. ». Chapman,
169 N. Y. 538, 88 Am. St. R. 614, 57 L. R. A. 513; Bell v. Packard, 69
Me. 105, 31 Am. R. 251; Pearl v. Hansborough, 9 Humph. (Tenn.)
426. Compare Freeman’s App., 68 Conn. 533, 57 Am. St. R. 112, 37
L. R. A. 452. See the note to Locke v. McPherson, 85 Am. St. R. 567.

3 Milliken v. Pratt, supra; Chicago, etc., Bank v. Mitchell, 92 Fed.
565; Bell ». Packard, supra. That the law of her domicile determines
capacity in such cases, see Freeman’s App., supra.

4 Armstrong v. Best, 112 N. Car. 59, 34 Am. St. R. 473, 25 L. R. A.
188, distinguishing Milliken »v. Pratt, supra; First Nat. Bank v. Shaw,
109 Tenn. 237, 97 Am. St. R. 840, 59 L. R. A. 498. See also Robinson
v. Queen, 87 Tenn. 445, 10 Am. St. R. 690, 3 L. R. A. 214; First Nat.
Bank v. Hinton, 123 La. 1018, 1025.

5 Schwank v. Hufnagle, 111 Ind. 453; Thompson 2. Kyle, 39 Fla. 582,
63 Am. St. R. 193.
sR
oh ay

CHAPTER XXVI

WILLS OF HUSBAND AND WIFE

302. Effect of Marriage Upon Wills of Husband—
Common Law.

At common law marriage had no effect upon the testa-
mentary capacity of the husband, who might will his
property to his wife or to a stranger, subject to the fa-
miliar rule that he could not by will deprive her of her
dower.! If a man makes a will, his subsequent marriage
does not revoke it at common law,” nor does the birth of
issue have that effect if the will was made after marriage.*®
If both marriage and the birth of issue took place after
the will was made, however, this worked such a change
in the condition of the testator as ipso facto revoked it at
common law.‘ But in order that this rule shall operate,
substantially the whole of the testator’s estate must have
been disposed of by the will,® without provision by the
will or otherwise for the subsequent birth of issue.6 When

1 See ante, secs. 210, 216. The disability of the husband to deprive
his widow and children of the homestead by will is a creature of modern
statutes. See ante, sec. 215.

2 Doe v. Barford, 4 N. & 8. 10; Swan v. Hammond, 138 Mass. 45,
52 Am. R. 255.

3 Doe v. Barford, supra.

4 Rood on Wills, secs. 375 et seq.; Overbury v. Overbury, 2 Show. 242;
Marston v. Roe, 8 Adol. & El. 14, 35 E. C. L. 457; Israell v. Rodin, 2
Moore P. C. 51; Glascott v. Bragg, 111 Wis. 605, 56 L. R. A. 258 and
cases cited. This rule applies though the testator was married when
the will was made, if his wife dies and he marries another woman and
has issue by her. Marston v. Roe, supra. It also applies to post-
humous issue though the testator was unaware of its probable birth.
Hart v. Hart, 70 Ga. 764. Compare Doe ». Barford, supra. As to the
adoption of a child, see post, sec. 467, note.

5 Kenebel v. Scrafton, 2 East, 541; Marston v. Roe, supra.

6 Marston v. Roe, supra; Glascott ». Bragg, supra; Baldwin v. Spriggs,

285
286 WILLS OF HUSBAND AND WIFE

a will has been revoked by marriage and the birth of is-
sue, death of such issue does not revive it.?

303. Same—Statutory Changes.

In some states the rules just stated are subject to few
statutory changes. In others, however, they are con-
siderably changed. Thus, in Illinois it seems that mar-
riage alone revokes the husband’s prior will,” and in sev-
eral states birth of a child alone revokes his will made
during marriage.’ In a number of others the after born
child, unless it appears from the face of the will to have
been intentionally omitted, takes the same share as if the
parent had died intestate;* and in many states any child
omitted by accident or mistake takes as in cases of intes-
tacy,> and there are doubtless still other statutory rules.

304. Wife’s Election Whether to Take Under the Will
or the Law.

The right of the wife to elect between her dower and
the provisions of her husband’s will, actually or presump-
tively intended to be in lieu of dower, has already been
discussed. And the same or similar rules prevail in most
states as to the widow’s right of homestead,’ and often
with respect to other legal provisions for her benefit. But
these matters are so largely dependent upon statutes that

65 Md. 373; Nutt v. Norton, 142 Mass. 242; Israell ». Rodin, 2 Moore
P. C. 51. See Morey ». Sohier, 63 N. H. 507, 56 Am. R. 538. Com-
pare Redf. on Wills, 296.

1 Taylor v. Diplock, 2 Phillm. 266; Emerson v. Boville, 1 Phillm. 342;
Ash v. Ash, 9 Ohio, 383.

? Hurd’s Rev. Stat. (1899), Chap. 39, sec. 10; Tyler v. Tyler, 19 II.
151. So under the English Statute, 1 Vict., Chap. 26, sec. 18. See also
Swan v. Sayles, 165 Mass. 177.

3 Evans v. Anderson, 15 Ohio, 324; Goodsell’s App., 55 Conn. 171;
Sutton ». Hancock, 115 Ga. 857; McCullom ». McKenzie, 26 Ia.
510.

4 See Mercantile Trust Co. v. R. I. Hospital Trust Co., 36 Fed. 863.

5 See Rev. Stat. Wis., 1898, secs. 2286, 2287, 2288, and notes.

6 See ante, sec. 216.

7 Cowdrey v. Hitchcock, 103 Ill. 263, 273,
WILLS OF HUSBAND AND WIFE 287

any detailed statement of the law on this subject is out
of the question.!

305. Effect at Common Law of Marriage on Wills
and Testamentary Capacity of Wife.

Under the common law a married woman was incapable
of making a valid will of either real or personal property.
No entirely satisfactory reason has been assigned for this
rule, though it is usually rested upon the general theories
and incapacities of coverture.?

Her will of real or personal property in execution of a
power, however, was valid, even though such power was
reserved in her own instrument of conveyance,’ and she
could make a valid will of personal as distinguished from
real property with the consent of her husband, though his
consent was not ordinarily deemed final, it seems, unless
he permitted probate to be granted,‘ or unless, perhaps,
his assent to her will was based upon a valuable consid-
eration.

It follows from the incapacity of the wife and from the
ambulatory nature of a will that the marriage of a single
woman revoked her will at common law,* and her subse-
quent widowhood did not revive it without republication.®

306. Wills of Wife’s Equitable Separate Estate.
It appears to have been settled in England that a mar-
ried woman has power to dispose by will of her equitable

1See Stimp. Am. Stat. Law, sec. 3262.

2See Schouler on Wills (8d Ed.), sec. 45; Marston v. Norton, 5
N. H. 205; Cutter v. Butler, 25 N. H. 343, 57 Am. D. 331, 340, note.

32 Kent Com., 171, 172; Pool ». Blakie, 53 Ill. 495; Osgood v. Breed,
12 Mass. 525.

4 Van Winkle v. Schoonmaker, 2 McCart. (N. J. Eq.) 3; Osgood ».
Breed, supra; In re Wagner’s Est., 2 Ashm. (Pa.). 448; Cutter o. Butler,
25 N. H. 348, 57 Am. D. 330; George v. Bussing, 15 B. Monr. (Ky.)
558. See Brook v. Turner, 2 Mod. 172, 1 Wms. Exrs. 47; Osmond’s
Est., 161 Pa. 550.

51 Jarm. on Wills, 110; Doe v. Staples, 2 T. R. 695; Swan v. Ham-
mond, 188 Mass. 45, 52 Am. R. 255; Noyes ». Southworth, 55 Mich.
173, 54 Am. R. 359; Brown v. Clark, 77 N. Y. 369.

¢ Brown v. Clark, supra. See Schouler on Wills (3d Ed.), sec. 59.
288 WILLS OF HUSBAND AND WIFE

separate personalty and her equitable separate real estate
settled upon her and her heirs, in the absence of a clause
against anticipation.! In many of our states the same
rule has prevailed,? though in others her testamentary
power has been denied, at least so far as real estate is
concerned, in the absence of a power conferred by the in-
strument of settlement.? Where, under a settlement in
her favor, a woman has power to dispose by will of the
property settled, her subsequent marriage will not revoke
her will thereof previously made.‘ As to such property,
however, marriage followed by birth of issue would doubt-
less be considered a revocation.’ And it has been held
that equity will carry into effect the will of a feme covert
disposing of her real estate in favor of her husband, or
other persons than her heirs at law, provided such will is
executed pursuant to a power reserved to her by antenup-
tial agreement with her husband.°®

307. Wills of Married Women Under Statutes.

Whether statutes conferring legal separate property or
estates upon married women of themselves give power to
dispose of such property by will has not been uniformly
decided, and must depend largely upon the scope and
wording of particular acts. Usually, testamentary power
is not implied, but must arise out of the terms of the
statute.’ But it is generally held that statutes giving

1 Taylor v. Meads, 4 De G., J. & S. 597; Fettyplace v. Gorges, 1
Ves. Jr. 46, 3 Bro. C. 8.

2 See Schouler on Wills (3d Ed.), sees. 51, 52, 53; 2 Kent’s Com. 170.

’ Holman v. Perry, 4 Met. (Mass.) 492; Thomas »v. Folwell, 2 Whart.
(Pa.) 11, 30 Am. D. 230; Osgood v. Breed, 12 Mass. 525. A common
practice in English marriage settlements seems to have been to confer
upon the wife a power of appointment by will, with a gift over to others
than the husband or his relatives in default of its exercise.

4 Will of Ward, 70 Wis. 251, 5 Am. St. R. 174, and authorities cited.

5 See post, next sec.

*2 Kent’s Com. 171; Bradish v. Gibbs, 3 Johns. Ch. (N. Y.) 523;
West v. West, 10 Serg. & R. (Pa.) 446.

"Harker ». Elliott, 3 Har. (Del.) 51; Naylor v. Field, 29 N. J. L.
x
WILLS OF HUSBAND AND WIFE 289

married women substantially the same rights of property
as single women will prevent the revocation of will by
the subsequent marriage of a testatrix, unless it is followed
by birth of issue! In most states, however, married
women are expressly given substantially the power of sin-
gle women to dispose of their separate property, whether
real or personal, by will; though in a number of jurisdic-
tions the husband is required to join in the execution of
the will or to signify his consent to it in some other speci-
fied way, at least where the will seeks to deprive him of
interests otherwise his by law;? and in some states the
wife cannot, by will, deprive the husband of courtesy,* or
of certain other interests to which he is legally entitled as
survivor.

308. Effect of Divorce Upon Wills of Spouses.

We have already adverted to the doctrine of implied
revocation of wills by the subsequent marriage of the
testator and birth of issue—circumstances to which the
doctrine of implied revocation is quite strictly confined.‘
And although divorce, like marriage, certainly works a
change in the condition of the testator or testatrix, courts
have quite uniformly denied that it works an implied rev-
ocation of a will as against his or her divorced wife or
husband, unless, from the language of the will or the pe-
culiar circumstances of the case, revocation, so far as the
latter is concerned, must have been clearly contemplated
and intended by the testator.®
287. Compare Urquhart v. Oliver, 56 Ga. 344; Noble v. Enos, 19 Ind.
72.

1 Will of Ward, 70 Wis. 251, 5 Am. St. R. 174, and authorities cited.

2See Tyler ». Wheeler, 160 Mass. 206; Noyes v. Southworth, 55
Mich. 178, 54 Am. R. 359.

+ See ante, secs. 200, 201.

4 Baacke v. Baacke, 50 Neb. 18.

© In re Jones’ Est., 211 Pa. 364, 107 Am. St. R. 581, 69 L. R. A. 940,
and notes; In re Brown’s Est., 139 Ia. 279. Compare Lansing v. Hayes,
95 Mich. 16, 35 Am. St. R. 545. As to a settlement of ‘property rights
in anticipation of divorce, see In re Hall’s Est., 106 Minn, 502, 20
L. R. A. (N. 8S.) 1073, 180 Am. St. R, 621.

19
CHAPTER XXVII

AGENCY BY AND BETWEEN HUSBAND AND WIFE—-SPOUSES
AS CO-PARTNERS

309. General Rule.

With the exception of the so-called agency in law
whereby the abandoned or neglected wife may bind the
husband for necessaries,’ neither spouse is in any sense
the agent of the other by simple virtue of the marriage
relation.? True, the wife, so long as she lives with the
husband, is prima facie his agent in ordinary matters’ of
household management and supply, but her presumed au-
thority may be rebutted by proof that he has conferred
no authority either in fact or appearance, or, if he has
done so, that such authority had been withdrawn, and
that those who dealt with her had notice of its withdrawal.?

310. Wife as Agent for Husband.

There is nothing in the marital relation, however, that
prevents the wife from acting as agent of the husband to
the extent of any authority, however wide, that he may
choose to confer upon her; and he may be estopped to
deny her authority upon the same principles that he may
be estopped to deny that of a stranger.‘ So, he may ratify
her unauthorized acts of agency, provided they are done
in his name or on his behalf, upon the same principle that
he may ratify the unauthorized acts of a third person.®

1See ante, secs. 121, 122.

2 Mechem on Agency, secs. 62, 63.

3 See ante, secs. 120, 123.

4 Mechem on Agency, sec. 62; ante, sec. 120.

5 Sawyer v. Cutting, 23 Vt. 486; Schuman ». Steinel, 129 Wis. 422,

116 Am. St. R. 961, 7 L. R. A. (N. 8.) 1048; Hill v. Sewald, 53 Pa.
271, 91 Am. D. 209. :

290
HUSBAND AND WIFE AS AGENTS 291

Where the wife has been unjustifiably absent from the
husband, however, he is not deemed to ratify her contracts
made during separation, even though they concern her
maintenance, by the mere fact of resuming cohabitation.!

311. Same—Wife’s Agency Where Husband Absent.

The fact that the husband is absent does not ordinarily
justify the assumption that the wife is his agent for any
purpose.? But where he is absent for a considerable time,
leaving his domestic or business affairs or his property in
her hands or under her apparent control, she will be deemed
his agent so far as is reasonably necessary to the proper
management of the one and the preservation of the other.
Thus, where the husband was a toll gatherer, he was held
bound by her act in demanding and receiving tolls.* So,
where the husband was absent in the Confederate army
he was bound by the acts of the wife in resisting confisca-
tion of his property,* and where the husband had been
absent for a considerable time and his whereabouts were
unknown when his homestead was burned, his wife was
deemed his agent to adjust the loss with the insurers of
the property.* So, where a man went away for three
months leaving his wife and young children alone on his
farm, it was said that she was impliedly in charge of the
live stock thereon.® In cases of the kind above mentioned
it has sometimes been said that the agency of the wife
arises ex necessitate, though it would seem more accurate

1 See ante, sec. 122.

2 Savage v. Davis, 18 Wis. 608; Bates v. Cilley, 47 Vt. 1.

3 See Marselis v. Seaman, 21 Barb. (N. Y.) 319, and cases cited below.

4 Buford v. Speed, 11 Bush. (Ky.) 338.

5 Evans v. Crawford County, etc., Ins. Co., 130 Wis. 189, 118 Am. St.
R. 1009, 9 L. R. A. (N. 8.) 485.

6 Chunot v. Larson, 43 Wis. 536, 28 Am. R. 567 (obiter). See as
further illustrating the general rule, Church v. Landers, 10 Wend.
(N. Y.) 79; Krebs ». O’Grady, 23 Ala. 726, 58 Am. D. 312; Felker ».
Emerson, 16 Vt. 653, 42 Am. D. 532; Hill ». Sewald, 58 Pa. 271, 91
Am. D. 209; Fisher ». Conway, 21 Kan. 18, 30 Am. R. 419; Benjamin
v. Benjamin, 15 Conn. 347, 39 Am. D. 384.
292 HUSBAND AND WIFE AS AGENTS

to say that the agency of the wife is based upon the in-
tention of the parties as presumed from the circumstances
of the case. His secret or private instructions in such
cases, therefore, cannot limit the authority thus apparently
conferred upon the wife unless those who deal with her
have notice of them.?

The competency of the wife as a witness when she has
acted as agent of the husband is discussed in another
place.®

312. Husband as Agent of Wife.

By the common law, the wife, being incapable of acting
in her own right, was equally incapable of appointing an
agent to act for her. To the extent that she may bind
herself in equity or under modern statutes, however, she
may act by agent, and the agent may be her husband as
well as a stranger. But whoever may be her agent, she
is not bound where he acts beyond his express or implied
authority, or where he attempts to do on her behalf what
she is incompetent to do in person.’ Furthermore, the
husband is never the agent of the wife by mere force or
implication of law.* His authority must be derived from
her in the same manner as that of any other agent, and
owing to his presumed influence over her, it has been
held that his appointment, or her ratification of his acts,
must be clearly and satisfactorily proved,’ though other

1 See Evans ». Crawford County, etc., Ins. Co., 130 Wis. 189, 196,
118 Am. St. R. 1009, 9 L. R. A. (N. 8.) 485.

? Church v. Landers, 10 Wend. (N. Y.) 79.

3 See ante, sec. 161.

4 Weisbrod v. Chicago, etc., R., 18 Wis. 35, 86 Am. D. 743; Wells ».
Smith, 54 Ga. 262; Kenton Ins. Co. 7. McClellan, 43 Mich. 564. See
also Sumner v. Conant, 10 Vt. 9; Earle v. Earle, 10 N. J. L. 347; Flesh ».
Lindsay, 115 Mo. 1, 37 Am. St. R. 374.

® Kenton Ins. Co. ». McClellan, supra; Nash v. Mitchell, 71 N. Y.
199, 27 Am. R. 38.

* Anderson v. Gregg, 44 Miss. 170; Crawford v. Redus, 54 Miss. 700;
McLaren v. Hall, 26 Ia. 297.

” Louisville Coffin Co. v. Stokes, 78 Ala. 372; McLaren ». Hall, supra;
Rowell v. Klein, 44 Ind. 290, 15 Am. R. 235.
HUSBAND AND WIFE AS AGENTS 293

authorities require a mere preponderance of the evidence.!
If she holds her husband or another out as an agent, how-
ever, she may, to the extent of her capacity to act in her
own right, be estopped like any other person to deny an
authority in fact.?

313. Husband and Wife as Agents for Third Persons.

The husband may, of course, become the agent of a
third person as if he were single. But as the act of the
agent is legally the act of the principal, the wife may be an
agent, even where the common-law disabilities of coverture
exist. The only question in such cases is one of authority.
If she is authorized she may act as agent of a third person
even in dealings with her husband, and her principal will
be bound.? It must be remembered, however, that where
a married woman acts as agent she may not be liable to
respond to her principal for breach of her duties as such,
unless the statute authorizes her to contract generally or
renders her liable under her contracts of employment.
Neither may she be liable to third persons upon an ex-
press or implied warranty of authority, or where she con-
ceals her principal or makes a written contract in her own
name, unless statutes confer upon her the contract capaci-
ties of a feme sole.‘

314. Revocation of Agency by Marriage.

Generally the marriage of a male principal revokes the
authority of his agents only so far as it relates to dower,
homestead or other rights or interests that the fact of
marriage places beyond his control.®

The marriage of a female agent does not revoke her
naked authority even at common law. The marriage of a

1 Meyers v. King, 42 Md. 65.

2 Bodine ». Killeen, 53 N. Y. 93; Bouck v. Enos, 61 Wis. 660; Nelson
v. MeDonald, 80 Wis. 606, 27 Am. St. R. 71.

3 Story on Agcy., sec. 7; Butler v. Price, 110 Mass. 97; Sawyer v.
Cutting, 23 Vt. 486; Pullam ». State, 78 Ala. 31, 56 Am. R. 21.

4 See Mechem on Agcy., sec. 61; Pullam ». State, supra.
5 Mechem on Agcy., sec. 268; Henderson v. Ford, 46 Tex. 627.

ao 7
294 HUSBAND AND WIFE AS PARTNERS

female principal, however, revokes the authority of her
agents even under modern statutes, save as to such acts
and contracts as bind her personally or bind her property.’

SPOUSES AS CO-PARTNERS

815. Husband and Wife as Co-Partners—The Com-
mon Law.

At common law partnership in a legal sense between
husband and wife, or between the wife and a stranger, was
impossible as involving rights and duties totally at va-
riance with the theories and incidents of coverture and
the incapacities of the wife. A wife could not form a co-
partnership with her husband, or with her husband and
another, or with others than her husband, save under such
exceptional circumstances as gave her the capacities of a
feme sole, and the marriage of a female partner ipso facto
dissolved her firm instantly, both on the ground of her re-
sultant incapacity and the alienation of her interest.”

316. Same—In Equity and Under Statutes.

In equity, a married woman having the power of antici-
pation, may become a co-partner, and to the extent of
her separate property may be liable for the debts and en-
gagements of the firm.®

Under the statutes of most states a married woman is
quite generally competent to enter into partnership with
others than her husband, and in many states she may be
or become a partner with him.‘ In a number of states,

1 Mechem on Agcy., supra.

? Bates on Part., secs. 135, 141; Nerot ». Burnand, 4 Russ. 247, 262;
Brown v. Chancellor, 61 Tex. 437; Bassett v. Shepardson, 52 Mich. 3;
Brown »v. Jones, 18 N. H. 230.

* Matthewman’s Case, 3 L. R. Eq. Cas. 781; Ashworth ». Outran,
5 Ch. D. 923.

*1 Bates on Part., sec. 136; Swan v. Caffe, 122 N. Y. 308,9 L. R. A.
593; Vail v. Winterstein, 94 Mich. 230, 34 Am. St. R. 334, 18 L. R. A.
515; Belser ». Tussumbia Banking Co., 105 Ala. 514 (1895); Morrison
». Dickey, 122 Ga. 353, 69 L. R. A. 87; Burney v. Savannah Grocery
Co., 98 Ga. 711, 58 Am. St. R. 342. See Lane v. Bishop, 65 Vt. 575,
HUSBAND AND WIFE AS PARTNERS 295

however, even where the acts are in the main quite as
liberal, partnership between husband and wife is held to
be contrary to the spirit and policy of the law as tending
to create interests that may become so far antagonistic
as to embroil the spouses in litigation to the disturbance
of domestic peace, and as tending to destroy the inde-
pendent ownership and enjoyment of the wife which the
statutes aim to secure.1 Doubtless in these states the
intermarriage of co-partners dissolves the firm, though the
marriage of a female partner with a stranger does not.
holding that she may be liable as a partner with her husband as to third
persons.

1 Lord v. Parker, 3 Allen (Mass.), 127; Fuller ». McHenry, 83 Wis.
573, 18 L. R. A. 512, and cases cited; Seattle Board of Trade v. Hayden,
4 Wash. 263, 16 L. R. A. 530, 31 Am. St. R. 919; Artman ». Furguson,
73 Mich. 146, 16 Am. St. R. 572, 2 L. R. A. 343. See also Barlow Bros.
Co. ». Parsons, 73 Conn. 696.
CHAPTER XXVIII

SEPARATION AND DIVORCE—NATURE AND KINDS—LEGIS-
LATIVE DIVORCE

317. In General.

It is the civil policy of England and the United States
to encourage marriage, and hence, as we have seen, to
discountenance all undue and unreasonable restraints
thereon.! This same policy, on the other hand, discourages
the separation of husband and wife, whether in pais or
by judicial decree, and sanctions it only under rules hav-
ing regard, not for the wishes or interests of the parties
merely, but for the welfare of society or the state.?

Separations between husband and wife without divorce
may be divided into two classes:

1. Parol separations, sometimes termed informal.

2. Separation under articles, sometimes termed formal.

318. Informal Separations.

By these are meant such separations as take place
without any formal bargain or agreement between the
parties, as where one spouse is absent on business or
pleasure, or where one leaves the other without consent,
or expels the other from the matrimonial home, or where
the absence of either spouse is involuntary or in obedience
to strict public duty, as where the husband is forced into
military service, or the separation is due to the insanity
or imprisonment of a spouse.

Various phases of this subject have already been dis-
cussed in considering the agency between the spouses and

1 See ante, sec. 31.
Dennis ». Dennis, 68 Conn. 186, 57 Am. St. R. 95, 34 L. R. A. 449;
Foote ». Nickerson, 70 N. H. 496, 516, 517, 54 L. R. A. 554.

296
SEPARATION OF HUSBAND AND WIFE 297

the husband’s liability for the wife’s support,’ and the
capacity of the wife to contract or to have her own earn-
ings,” or to sue and be sued alone.* More as to informal
separations is also shown under divorce, particularly un-
der the heads of cruelty,‘ desertion,® imprisonment,® and
separation by mutual consent.’

319. Separation Under Articles—In General.

By a separation agreement, or articles of separation, is
meant any express written bargain between husband and
wife providing for their present or future separation or liv-
ing apart, or providing for their property rights, or the sup-
port of the wife and children while separation continues.
The validity of such agreements, at least in some of their
phases, is still subject to serious doubt and has bred much
controversy. While the general policy of the law favors
marriage and living together in marriage; and forbids the
dissolution of the marriage tie except for specified causes
and after a judicial hearing and determination, courts
recognize the fact that parties do and will separate with-
out divorce, whether cause for it exists or not. When,
therefore, a separation has taken place, or is inevitable
and in immediate contemplation, it is often in accordance
with public policy and repressive of litigation and scandal
to enforce such bargains as the spouses may make touching
their property rights and the support of the wife and chil-
dren during separation, or the custody of the latter, sofar as
this can be done consistently with general legal principles.

320. Same—Validity—Public Policy.

Though the modern law of England on this subject is
in some respects different, as will appear in the next sec-
tion, it is generally held in this country that all private

1 See ante, secs. 122, 311.

2 See ante, sec. 128.

3 See ante, sec. 296.

4 See post, secs. 355 et seq.

5 See post, secs. 365 et seq.

* See post, sec. 383.

7 See post, sec. 382.
298 SEPARATION OF HUSBAND AND WIFE

contracts or agreements that bind or encourage married
parties to separate in the future, or that are designed or
tend to prevent their reconciliation if they are already
separated, are contrary to public policy and void as cal-
culated to induce a breach of duties in the performance of
which society has the very highest interest.1 On the
other hand, if the husband and wife have already separated,
or a separation is inevitable or in present contemplation
and immediately takes place on account of existing diffi-
culties or disagreements, the law upholds stipulations for
the separate maintenance of the wife and children while
such separation continues, or for an adjustment of the
property rights of the spouses in view of such separation.?
Indeed, settlements in favor of the husband have been
held valid where the circumstances were such as to make
them fair and reasonable.®

1 Greenhood on Pub. Pol. 489; Baum v. Baum, 109 Wis. 47, 83 Am.
St. R. 854, 53 L. R. A. 650; Randall ». Randall, 37 Mich. 571; Phillips ».
Thorp, 10 Oreg. 496; For v. Davis, 113 Mass. 255, 18 Am. R. 476;
Helms v. Franciscus, 2 Bland, 544, 20 Am. D. 404; Rolette v. Roletite,
1 Pinn. (Wis.) 370, 40 Am. D. 782; Beach v. Beach, 2 Hill (N. Y.),
260, 38 Am. D. 584; Foote v. Nickerson, 70 N. H. 496, 54 L. R. A. 554,
where many authorities are collected and reviewed; Hill v. Hill, 74
N. H. 288, 12 L. R. A. (N. 8.) 848, 124 Am. St. R. 966. See also Cal.
Code, secs. 101, 159. As to conditions in wills tending to induce sepa-
ration or divorce, see In re Moore, 29 Ch. D. 116; In re Haight, 51 N. Y.
App. Div. 310; Hawke ». Euyart, 30 Neb. 149, 27 Am. St. R. 391.

2 Grime v. Borden, 166 Mass. 198; Rathmeier v. Beckwith, 35 Mich.
110; Randall ». Randall, supra; Carson 7. Murray, 3 Paige (N. Y.),
500; Stebbins ». Morris, 19 Mont. 115; Hilbish ». Hattle, 145 Ind. 59,
33 L. R. A. 783; Storey v. Storey, 125 Ill. 608, 8 Am. St. R. 417, 1 L. R.
A. 320; Galusha v. Galusha, 116 N. Y. 635, 15 Am. St. R. 453,6 L. R. A.
487; Duryea ». Bliven, 122 N. Y. 567; Hungerford ». Hungerford,
161 N. Y. 550, 553; Roll ». Roll, 51 Minn. 353; Com. ». Richards, 131
Pa. 209; Carey v. Mackey, 82 Me. 516, 17 Am. St. R. 500, 9 L. R. A.
118; Rolette v. Rolette, supra; Henderson ». Henderson, 37 Oregon, 141,
82 Am. St. R. 741, 48 L. R. A. 766; Bowers v. Hutchinson, 67 Ark. 15.
Compare Baum v. Baum, supra; Hill v. Hill, supra, and see note thereto
in 12 L. R. A. (N.8.) 848.

* Rains v. Wheeler, 76 Tex. 390; Stephenson v. Osborn, 41 Miss. 119,
90 Am. D. 358. ,
SEPARATION OF HUSBAND AND WIFE 299 ©

To restate the rule as it exists in most states: while
courts will not uphold or enforce covenants between hus-
band and wife to separate or to continue separated in the
future, still, if they are already separated, or separation
is in immediate contemplation and takes place, such pro-
visions in articles of separation as are meant to provide a
suitable maintenance for wife and children or an equitable
division of property which both spouses have enjoyed
during coverture will be upheld and enforced, if free from
fraud.t But though the covenants to live in separation
will not be specifically enforced, they are not without
legal significance, for if acted upon they will ordinarily
prevent either party from being deemed a deserter until
the other has offered in good faith to resume cohabitation,’
and are evidence that their separation was mutually vol-
untary under statutes providing for divorce where the
parties have voluntarily lived apart for the period pre-
scribed by law.®

321. The Rule in England.

The modern rule in England seems to be that while an
agreement for future separation of husband and wife, un-
less it is in immediate contemplation for causes existing at
the time, is null and void,‘ still, if a separation has taken
place, or is inevitable on account of present difficulties or
disagreements, the courts will specifically enforce, not
merely such of its terms as relate to property and support,
but its covenants to separate and live apart.®

322. Form of Separation Agreements.
In form, separation agreements are usually in writing

1See in addition to cases cited in the preceding notes, Smith ».
Knowles, 2 Grant Cas. 415; Aspinwall v. Aspinwall, 49 N. J. Eq. 304.

2 See Power v. Power, 66 N. J. Eq. 320, 105 Am. St. R. 653.

3 See post, sec. 382.

4‘ Cartright v. Cartright, 3D. M. & G. 392.

5 See Hart v. Hart, 18 Ch. D. 670; Besant ». Wood, 18 Ch. D. 695;
Marlborough ». Marlborough, 1 Ch. D. 165 (1901); Wilson ». Wilson,
300 SEPARATION OF HUSBAND AND WIFE

by deed with the intervention of a trustee for the wife.
Perhaps in most states a parol agreement would be up-
held if it provided for separate support or maintenance,
at least if it had been acted upon, unless affected by the
statute of frauds.! Whether the intervention of a trustee
for the wife would be essential under modern equity rules
and the present married women’s acts, must depend upon
the statutes and decisions of particular states. The ques-
tion is sometimes said to turn, not upon whether the wife
can contract with strangers, but upon whether she can
contract directly with her husband under the local law.’

323. Stipulations as to Custody of Children.

While some courts have held void stipulations as to the
custody of children upon the ground that they interfere
with the due discharge of the father’s duties toward them
and are hence contrary to public policy, most courts would
probably uphold such provisions in articles of separation
at the present time where their enforcement would not be
detrimental to the welfare of the children. The welfare
of the latter in such cases is paramount to any agreement
that parents may make as to their custody.‘

324. Effect of Separation Agreements.

All the direct and collateral results that may flow from
a separation agreement are too much affected by the
peculiarities of local statutory law for discussion here.
Generally it does not debar either party from obtaining a
divorce for the prior or subsequent misconduct of the

1 H. L. Cas. 538. For an historical review of the English cases on this
subject, see Foote v. Nickerson, 70 N. H. 496, 54 L. R. A. 554.

1 Dutton v. Dutton, 30 Ind. 452.

*See 1 Bish. Mar. Div. & Sep., sec. 000; Hill ». Hill, 74 N. H. 288,
and note to that case in 12 L. R. A. (N. S.) 848, 124 Am. St. R. 966;
McGregor v. McGregor, L. R. 20 Q. B. 529.

* Whitney ». Closson, 138 Mass. 49; Winter ». Winter, 191 N. Y.
462, 16 L. R. A. (N.S.) 710; Sweet ». Sweet, (1895), 1Q. B. D. 12.

‘See post, sec. 481; Sargent ». Sargent, 106 Cal. 541; People v. Mer-
cein, 3 Hill (N. Y.), 399, 838 Am. D. 644.
DIVORCE IN GENERAL 301.

other, though it may affect the right of the wife to alimony
or the amount she may recover.!

Generally, in the absence of statute, a voluntary separa-
tion under articles does not enlarge the wife’s powers or
capacities as to contracts, conveyances or suits. She is
still under the disabilities of coverture. Rights of admin-
istration are not affected by it, nor are rights of dower or
inheritance barred unless that was the intention of the
parties legally expressed.

325. Avoidance and Termination.

Separation agreements may be avoided upon the ground
of fraud, duress or overreaching, and will be scanned with
great care in favor of the wife, where they are not in all
respects just and equitable under the circumstances exist-
ing when they were made.? Ordinary separation agree-
ments are deemed rescinded by the reconciliation of the
parties and their resumption of cohabitation,*® unless it
was their intention that they should be in the nature of
permanent arrangements or settlements of property not
dependent upon continued separation or living apart.‘

KINDS OF DIVORCE

326. In General—Defined and Distinguished.

There are two kinds of divorce tHat differ widely, both
in their direct and, in most states, in their collateral re-
sults. They may be generally described as follows:

1. Divorce a vinculo matrimonii (from the bond of mat-
rimony) also called absolute divorce. This may be de-

1 See post, secs. 422, 425.

? Galusha v. Galusha, 138 N. Y. 272, 116 N. Y. 635, 15 Am. St. R.
453, 6 L. R. A. 487; Matter v. Noah, 73 Cal. 583, 2 Am. St. R. 829, 88
Cal. 468.

3 Thackaberry v. Thackaberry, 101 Mich. 102; Galusha v. Galusha,
116 N. Y. 635, 15 Am. St. R. 453, 6 L. R. A. 487; Smith v. King, 107
N. Car. 273; Sheltar v. Gregory, 2 Wend. (N. Y.) 422; and other cases
cited in the note thereto in 90 Am. D. 369.

‘Smith v. King, supra; Hunter’s App., 54 Pa. 110; Walker v. Walker,
9 Wall. (U. 8.) 743; St. John v. St. John, 11 Vesey, 537.
302 DIVORCE IN GENERAL

fined as any legislative act or judicial decree which abso-
lutely dissolves the marriage tie and restores the parties
to their original legal status of single persons. .

2. Divorce a mensa et thoro, or from bed and board,
also termed limited divorce or judicial separation. This
may be defined as a legislative act or judicial decree, which
forever, or for a limited time, abrogates the personal rights
and duties incident to marriage without destroying the
marriage tie or restoring the parties to the status of single
persons.

In England for several centuries and down to the divorce
act of 1858, limited divorces only were granted by the
courts... In this country, however, absolute divorce is
provided for by the statutes of nearly all the states, at
least for the graver causes of adultery, cruelty and de-
sertion. In some of them no other form of divorce is au-
thorized, while in the majority of them limited divorces
are granted at the. option of the plaintiff for the same
causes that warrant absolute divorce, or for certain causes
not deemed sufficient for a complete dissolution of the
marriage tie.”

1 See post, sec. 348.

2 Modern text writers and sociologists quite generally argue against
the policy of limited as distinguished from absolute divorce, chiefly upon
the ground that it leaves the parties in an anomalous position, both
as to one another and the public, tending toward scandal and immo-
rality and fraud upon innocent third persons, without affording the in-
jured party a better remedy than in most cases could be realized by
a voluntary and legally justifiable withdrawal from cohabitation. ‘See
in this connection “Alimony without Divorce,” post, sec. 410; 1 Bish.
Mar. Div. & Sep., sec. 67, 71; 2 Nels. Div. & Sep., sec. 1022; Ellison v.
Mayor, 53 Ala. 558; Burlage v. Burlage, 65 Mich. 624. The arguments
against absolute divorce and in favor of judicial separation, aside from
the possibility of reconciliation and a resumption of cohabitation, are
founded chiefly upon the sacramental idea of marriage, or its indis-
solubility in the eye of the Christian church. The National Divorce
Congress of 1906 proposes uniform legislation, giving the plaintiff the
absolute right to elect between a limited and absolute decree. It
would seem that while the plaintiff’s wishes in this regard should ordi-
narily be respected, the court should have discretionary power to grant
DIVORCE IN GENERAL 303

So general is the idea in this country that “divorce,”
without qualifying terms, means an entire and absolute
dissolution of the marriage tie, that a statute simply au-
thorizing divorce for certain specified causes has been con-
strued to mean an absolute, as distinguished from a lim-
ited, decree.!

327. Consequences of the Distinction Between Abso-
lute and Limited Divorce.

Many of the distinctions between absolute and limited
divorce have already been discussed or adverted to. Ab-
solute divorce, as we have seen, completely dissolves the
marriage tie. It restores the parties to their former status
of single persons and leaves them free to intermarry with
others at will, in the absence of legislation forbidding.? So,
we have seen, absolute divorce, in the absence of statute,
cuts off dower,’ courtesy,‘ rights of succession, and other
direct or incidental property rights dependent upon the
marriage tie.®

A limited divorce, on the other hand, extinguishes or
suspends such rights and duties only as are personal in
the marriage relation. Neither party can demand or en-
force cohabitation, and neither party can marry again
until the other dies or there is an absolute divorce. If
there is no statute to the contrary, all the collaterals of
marriage are left practically intact. The wife has dower,®
and the husband courtesy,’ and the right to administer
upon the wife’s estate.*. The wife’s right to support, how-

absolute divorce whenever the public interest appears to require it.
See Burlage v. Burlage, supra.

1 Miller v. Miller, 33 Cal. 353, 355; Hagle v. Hagle, 74 Cal. 608; Cast 2.
Cast, 1 Utah, 112, 124.

2 See ante, secs. 66, 100; post, sees. 429, 430.

3 See ante, sec. 214.

4 See ante, sec. 201.

5 As to its effect on the estate by entireties, see ante, sec. 177.

6 See ante, sec. 214.

7 See ante, sec. 201.

8 Clark v. Clark, 6 Watts. & 5S. (Pa.) 85.
304 DIVORCE IN GENERAL

ever, so far as it may be regarded as a direct one, is gone.
In place of it, if she be the successful party to the divorce
suit, is her claim for alimony, a matter later explained.!

Following limited divorce, the wife, at common law, has
few if any of the rights or capacities of a feme sole,” save
the right to acquire an independent domicile. Aside from
statutes enlarging the rights and capacities of married
women while undivorced are enactments in England and
in many states conferring special rights and capacities
upon wives divorced from bed and board. The general
trend of legislation in this respect is to put them practi-
cally in the position of single women, so far as concerns
property and contracts and the capacity to sue and be
sued.*

A child born to the wife during limited divorce is pre-
sumed illegitimate until the contrary appears unless it
must, in course of nature, have been begotten before the
decree.®

$28. Decree of Nullity and Divorce Distinguished.

Divorce in its strict modern sense presupposes a valid
marriage, which it totally or partially dissolves. A decree
of nullity, on the other hand, is a judicial determination
either that a certain marriage was absolutely void ab
initio, as when one of the parties had a husband or wife
living and undivorced when it was contracted, or that a
marriage voidable from its inception shall be deemed void
from the beginning. The decree of nullity, whether the
marriage was void or voidable, leaves the parties in sub-
stantially the same position as if no marriage between

1Crittenden v. Schemerhorn, 39 Mich. 661, 33 Am. R. 440; post,
sec. 408.

2 Barber v. Barber, 2 Pin. (Wis.) 297.

3 See ante, sec. 117.

42 Bish. Mar. Div. & Sep., Chap. LII; 20 & 21 Vict., Chap. 85,
sec. 26.

5 See post, sec. 455.

*See ante, secs. 35, 36; Montague ». Montague, 127 N, W. 639
(8S. Dak. 1910).
DIVORCE IN GENERAL 305

them had ever existed or been attempted, even to the
extent of bastardizing offspring of their union, in the ab-
sence of statute providing otherwise.!

All property and other collateral rights of the parties de-
pendent upon the marriage are cut off by a decree of nullity
unless saved by statute,? and the woman may sue and be
sued like any other feme sole. She may even sue the man
for personal property derived from her by virtue of the
supposed marriage.* But whether the woman may, after
a decree of nullity, sue as upon an implied contract for
the value of domestic services rendered during cohabita-
tion is not entirely clear. It has been held by some courts
that she may recover for them quantum meruit against
the man or his representatives where she was led into a
void marriage by his fraud,‘ and by others that her rem-
edy, if any, is by action for deceit for inducing her to
marry by false representations or concealment of facts.®

Questions have also arisen as to the rights of third per-
sons who have acquired property interests on the basis of
a supposedly valid marriage. Generally such parties, if in-
nocent, will be protected, at least where the marriage was
voidable only and not absolutely void.®

1 See ante, secs. 196, 201.

2 See ante, sec. 206.

’ Lawson v. Shortwell, 27 Miss. 630.

4 Fox v. Dawson, 4 Martin (La.), 74; Higgins ». McNally, 9 Mo. 493;
Hickman v. Hickman, 46 Mo. App. 496.

5 Morrill v. Palmer, 68 Vt. 1,33 L.R. A. 411, and note; Cooper ».
Cooper, 147 Mass. 370, 9 Am. St. R. 721; Blossom ». Barrett, 37 N. Y.
434, 97 Am. D. 747; In re Payne’s App., 65 Conn. 397, 48 Am. St. R.
215, 33 L. R. A. 418. See also Henneger v. Lomas, 145 Ind. 287, 32
L. R. A. 848, as to the right to recover for antenuptial torts. Under
some modern decisions courts having equity jurisdiction, while dis-
claiming power to grant alimony in technical nullity suits, have never-
theless gone into the source and extent of joint accumulations during
the supposed marriage, and have awarded the woman an equitable
proportion of what she helped to acquire and save, where she married
in ignorance of the facts rendering the marriage voidable or void.
See post, sec. 411.

® See 2 Bish. Mar. Div. & Sep., secs. 1601 et seq.

20
306 LEGISLATIVE DIVORCE

329. Confusion of Divorce and Nullity Under Statutes.

The older English authorities do not appear to distin-
guish between the absolute divorce, or divorce a vinculo
matrimonii familiar to modern law, and the decree of
nullity, terming the latter divorce a vinculo matrimonii
as distinguished from the divorce a mensa et thoro of the
ecclesiastical courts.1_ Similar confusion is found in the
language of some of our statutes. Thus, impotence, want
of age, prior marriage undissolved, and some other causes
rendering a marriage void or voidable are sometimes enu-
merated as causes for ‘‘divorce.’’ Usually so far as is nec-
essary to the attainment of logical results and the avoid-
ance of absurd consequences, the courts construe the term
“divorce”’ as thus used to mean technical nullity, unless
statutory terms preclude such construction.?

LEGISLATIVE DIVORCE

330. History and Validity.

In England the ecclesiastical courts had power to grant
limited divorce alone, and that for adultery and cruelty
only. Absolute divorces could be there obtained only
by act of Parliament until the English divorce act of
1858, and the American practice of granting legislative
divorces, both in colonial times and since, is probably
based upon that of the mother country.’

In the absence of direct constitutional prohibitions, most
courts have upheld legislative divorces, though usually
with more or less doubt and reluctance; ‘4 and it has been

11 Bl. Com. 440; Essays on Anglo-Am. Leg. Hist., Vol. III, p. 823.

?See Smith v. Smith, 5 Ohio St. 32; Stewart ». Vandervort, 34 W.
Va. 524, 12 L. R. A. 50, and note. Whether the decree is deemed
technically of nullity or of absolute divorce, it is a judicial determina-
tion that the parties are single and bars further proceedings to deter-
mine their marriage status. Turner ». Thompson, 13 P. D. 37. As
to alimony in technical nullity suits, see post, sec. 411.

3 See generally on this subject How. Hist. Mat. Institutions, “Parlia-
mentary Divorce,” and “Legislative Divorce”; Essays on Anglo-Am.
Leg. Hist., Vol. II, p. 299.

‘Wright ». Wright, 2 Md. 429, 56 Am. D. 723; Starr ». Pease, 8
LEGISLATIVE DIVORCE 307

held by the Supreme Court of the United States that a
legislative divorce was not a law impairing the obligation
of contracts nor a usurpation of the judicial power, or
otherwise forbidden by the federal constitution, and that
it was therefore valid so far as it sought to deal with the
marriage status of the parties and not with alimony, or
directly with property rights.1_ Some of the state courts
have held legislative divorces void, however, either upon
the ground that they are special or class legislation within
their constitutional provisions against such legislation,?
or that they are a usurpation of the judicial power,’ or
are otherwise forbidden under the peculiar wording of
their constitutions.‘ But as direct constitutional provi-
sions in most states at present forbid legislative divorces,‘
and they are forbidden in the territories,® this subject is
now of little practical importance and will therefore be
dismissed.’
Conn. 541; Maynard v. Hill, 125 U.S. 190, and cases cited; Brigham ».
Miller, 17 Ohio, 445, 49 Am. D. 471; Jones v. Jones, 12 Pa. 350, 51
Am. D. 611; Cronise ». Cronise, 54 Pa. 255.

1See Maynard ». Hill, supra; Starr v. Pease, supra; Fornshill ».
Murray, 1 BI. Ch. (Md.) 479, 18 Am. D. 344.

2 Jones v. Jones, 95 Ala. 443, 18 L. R. A. 95, and note; Simonds ».
Simonds, 103 Mass. 572, 4 Am. R. 576.

3 Berthelmy v. Johnson, 3 B. Monr. (Ky.) 90, 38 Am. D. 179; Bryson ».
Bryson, 17 Mo. 590, 594; Higbee ». Higbee, 4 Utah, 19; Ponder ».
Graham, 4 Fla. 23; Tefft v. Tefft, 3 Mich. 67.

4 Sparhawk v. Sparhawk, 116 Mass. 315.

5 See in this connection State v. Duket, 90 Wis. 272, 48 Am. St. R.
928, 31 L. R. A. 515.

6 Act of July 30, 1886.

7 See more fully on this subject 1 Bish. Mar. Div. & Sep., secs. 1422
et seq.; 1 Nelson’s Div. & Sep., secs. 400 et seq.; Cooley’s Const. Lim.
109.
CHAPTER XXIX

JURISDICTION TO GRANT DIVORCE—CONFLICT OF LAWS

331. Jurisdiction in General.

In divorce, as in other departments of the law, jurisdic-
tion is essential to the validity of a judicial decree, whether
it seeks to deal with the status of the parties, or with col-
lateral matters, such as their property rights, including
alimony, or with the custody of children. As to the status
of marriage, certain principles determine jurisdiction, while
authority over the incidents may be governed by other
and quite different ones. This is strikingly true when we
consider the extraterritorial effect of judgments and de-
crees.!

332. How far Divorce Jurisdiction Statutory.

Almost from the Norman conquest the temporal courts
of England had no power to grant divorce. Like marriage
it was deemed a thing of spiritual cognizance, and authority
to grant it was solely in the spiritual or ecclesiastical courts
until its transfer by act of Parliament in comparatively
recent times to a court of exclusive divorce jurisdiction.”

While our forefathers are said to have brought with
them their English law, or so much of it as was adapted
to their changed conditions and surroundings, they did
not bring with them their courts. It follows, therefore,
that the mere establishment in our colonies or states of
courts of common law or equity jurisdiction did not alone
confer upon those courts the power to grant divorces,?
and that with us no divorce can be granted for causes aris-

1 See post, secs. 333 et seq.

2 20 & 21 Vict., Chap. 85; 30 & 36 Vict., Chap. 66, secs. 16, 31.
3 Sharon v. Sharon, 67 Cal. 209, and authorities cited.

308
DIVORCE JURISDICTION 309

ing after marriage until statutes not only authorize it,
but point out specifically or by fair intendment the par-
ticular courts that shall have authority to grant it.!

In view of the foregoing and other reasons it is often
said that in this country jurisdiction to grant divorce is
purely statutory.?. It must not be understood, however,
that our divorce law is strictly statutory in all its details,
for when the legislature authorizes divorce for causes
familiar to the ecclesiastical law of England, it is but
reasonable to assume that it intends to adopt such aux-
iliary principles applicable to the subject.in our ancestral
law as are not contrary to the letter or spirit of the stat-
utes themselves.’ Thus, where a statute authorizes divorce
for adultery and cruelty, it not only justifies recourse to

1 Griffin v. Griffin, 47 N. Y. 134, 188; Whitmore v. Hardin, 3 Utah,
121. See also Sharon v. Sharon, supra. Jurisdiction ‘over all civil
cases” is held to empower the court to grant divorce, subject to any
limitations of jurisdiction dependent on the amount in controversy.
Stebbins v. Anthony, 5 Col. 348. It seems, however, that where the
statute is entirely silent as to the tribunal, courts of general jurisdiction
may take cognizance. Cast v. Cast, 1 Utah, 112, 120, with which
compare Whitmore v. Hardin, supra; Sharon v. Sharon, supra; Ewing 2.
Ewing, 24 Ind. 468; Heatherwick v. Heatherwick, 32 Ill. 73. While the
jurisdiction to directly adjudge void a marriage claimed to be void or
voidable on account of causes arising before or at the time it was en-
tered into, such as fraud, duress, lunacy and idiocy, was in the ecclesias-
tical courts, it has nevertheless been generally held in this country that
a similar power inheres in courts of equity without the aid of statute,
pursuant to the general principles of chancery jurisdiction. See ante,
secs. 47, 50; Wightman v. Wightman, 4 Johns. Ch. (N. Y.) 343; Clark .
Field, 13 Vt. 460; Carris v. Carris, 24 N. J. Eq. 516, and other authori-
ties cited in the opinion. As to the purely canonical causes see 24 N. J.
Eq. 19; Burtis v. Burtis, 1 Hopk. Ch. (N. Y.) 557, 14 Am. D. 563.

2? Burtis v. Burtis, supra; Cook v. Cook, 56 Wis. 195, 203, 43 Am. R.
706.

3 Williamson v. Williamson, 1 Johns. Ch. (N. Y.) 488. In fact there
is much reason for saying that, until the enactment of such statutes
the ecclesiastical law touching divorce was, and is with us, like other
branches of the unwritten law of England, in abeyance, but that upon
the enactment of statutes conferring jurisdiction the unwritten law
of this subject revives. See 1 Bish. Mar. Div. & Sep., Chap. VIII.
Compare 1. Nels. Div. & Sep., sec. 10.

“
310 DIVORCE JURISDICTION

the ecclesiastical law for the principles that define those
terms, but adopts by implication the familiar doctrines
of recrimination, condonation, connivance and collusion,
though the statutes may be entirely silent as to them.'

It would be impossible, of course, to enumerate the dif-
ferent courts upon which divorce jurisdiction has been
conferred in the several states. It is sufficient to say, how-
ever, that it is usually conferred upon courts of record hav-
ing general equity powers.

The federal courts have no jurisdiction to grant divorce
or alimony, nor can they acquire it save through consti-
tutional amendment, though they may determine the
validity of a marriage or divorce as a collateral issue, or
enforce decrees for alimony rendered by state courts, on
the basis of diverse citizenship.?

It may be well to note here that probably upon no sub-
ject unaffected by peculiar climatic or other diverse phys-
ical or social conditions, is there so great a diversity of
policy and legislation as upon that of divorce. From the
conservative state of New York, where absolute divorce
can be obtained only for adultery, to a few states like
Washington, where the court may grant divorce for any
cause deemed by it sufficient, and when it shall be satis-
fied that the parties can no longer live together, legisla-
tion almost runs the gamut of matrimonial delinquencies
as causes for divorce, either limited or absolute.?

Generally, absolute divorce is granted for adultery,
cruelty, or desertion of either spouse (the period varying),

1 Nogees v. Nogees, 7 Tex. 538, 58 Am. D. 78; Robbins ». Robbins,
140 Mass. 528, 530, 54 Am. R. 488, and note. See post, secs. 388, 391,
396, 401.

2 On this subject, as well as upon the question of federal jurisdiction
on appeal from the territories, see De La Rama v. De La Rama, 201
U.S. 303 (1906), and cases cited; post sec. 427.

‘One state only, South Carolina, does not recognize divorce at all,
in spite of the fact that the Protestant element largely preponderates.
See article in 70 Cent. L. Jour. 93; Prof. Bryce in Select Essays on
Anglo-Am. Leg. Hist., Vol. III, p. 827; McCreery ». Davis, 44 S. Car.
195, 51 Am. St. R. 794, 28 L. R. A. 655.
DIVORCE JURISDICTION 311

for habitual drunkenness of the husband at least, and for
his neglect to provide. Impotency of either party, fol-
lowing reason and the canon and ecclesiastical law, is al-
most universally recognized either as a ground for nullity
or divorce.!_ Absolute divorce is alone granted in a num-
ber of states, though most statutes provide for limited
decrees on certain grounds often identical, at least in part,
with those warranting absolute divorce.?

333. Divorce Jurisdiction Dependent on Domicile.

It is not the policy of civilized states to grant divorces
to mere strangers or sojourners. To do so would lead not
only to local and general scandal and inconvenience, to
fraud on the courts and injustice to individuals, but would
violate that principle of international law which justly
regards as exclusive the right of each state or country to
directly determine the status and regulate the domestic
relations of its own citizens.? The divorce statutes, there-
fore, uniformly require that at least one of the parties to
the divorce suit shall have resided (been domiciled) within
the jurisdiction of the divorcing court for some fixed
period, varying in this country from ninety days to three
years.

Stating the matter in another and more technical and
particular form, marriage is a status, and divorce is a pro-
ceeding against it looking to its modification or dissolution.
No court can pronounce a judgment that will directly
bind any person or thing situated outside its jurisdiction.
Primarily, and so far as it seeks to dissolve the marriage,
a divorce action is quite generally conceded to be in the
nature of a proceeding in rem (quasi in rem) and the mar-
riage status is the res upon which the judgment of the
court is intended to operate. If neither party is domiciled

1 See ante, sec. 47.

2? For an abstract of these statutes down to 1895 see 2 Nels. Div. &
Sep., 1025. See also Keezer’s Mar. & Div., 233, (1906). See also
post, Chaps. XXX and XXXT.

4See post, secs. 338, 339 et seq; People ». Dawell, 25 Mich. 247,
12 Am. R. 260.
312 DIVORCE JURISDICTION

within the divorcing state, there is no res within the juris-
diction of its courts upon which their decrees can operate,
and their decrees purporting to dissolve the marriage
status are void elsewhere, however they may be regarded
in the state where they are granted.! If both parties are
domiciled within the divorcing state, a decree valid there
is binding elsewhere, either in personam or in rem, by all
authorities.? If only one of the parties is domiciled where
the divorce is granted, the question becomes more diffi-
cult. Usually such divorces are held valid elsewhere if
valid where the divorce was had, in spite of the fact that
the court granting it had only partial jurisdiction of the
res. The conflicting and irreconcilable views on this sub-
ject it is our purpose later to examine.®

334. Same—Wife’s Separate Domicile for Divorce
Purposes.

By the general rule founded upon the theoretical unity
of person and interest, the domicile of the wife follows
that of the husband.‘ But when his conduct is such as to
entitle her to a divorce, it is the rule in this country that
she may lawfully leave him and acquire a domicile of her
own, if not for other purposes, at least for the purpose of
divorce.’ The rule is founded not only upon justice and
necessity, but upon the spirit and purpose of divorce laws,
which recognize the right of the wife to a divorce equally
with the husband. Were the normal rule of domicile ap-

1 See post, sec. 338, and cases cited.

2 See post, sec. 338.

3 See post, secs. 339 et seq. and see generally on this subject Minor’s
Confi. L., sec. 91; Haddock ». Haddock, 201 U. 8. 562, 26 Sup. Ct. Rep,
525, including the dissenting opinions of Brown and Holmes, JJ.

4 See ante, sec. 117.

5 The English cases seem to make the wife’s right to divorce from
an English marriage depend solely upon the domicile of the husband.
Shaw v. Atty. Gen., L. R. 2 P. & D. 156. See also Armytage v. Army-
tage, 1898 Prob. 178, to the effect that a resident wife may have a
decree of separation against a resident husband, legally domiciled else-
where.
DIVORCE JURISDICTION 313

plied a guilty husband might, by moving from place to
place, forever prevent the wife from acquiring a residence
long enough to procure a decree.! Generally, therefore,
the injured wife may remain and sue where her domicile
was fixed when the matrimonial offense was committed,”
or she may go elsewhere and acquire a new domicile, re-
gardless of the fact that her husband retains his old dom-
icile or acquires a new one.®

335. May Plaintiff Rely Upon Defendant’s Domicile,
or Non-Domiciled Defendant File Crossbill?

If the statutes of a particular state permit a non-
domiciled plaintiff to sue a domiciled defendant for divorce,
the decree, if binding there, is binding elsewhere, for the
domicile of either party is enough to give jurisdiction over
the marriage status, and service upon the defendant within
the state gives jurisdiction to render a judgment in per-
sonam for alimony and the like. But most statutes per-
mit divorce only where the plaintiff shall have resided in
the state for a certain period before the action is com-
menced. Under the older decisions a wife might sue the
husband at the place of his domicile, though she in fact
resided elsewhere, on the theory that his domicile was
hers also in point of law.’ Under the statutes above re-
ferred to, however, it is now held that the wife must be
an actual resident of the state.° But if either party, being

1 Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. D. 372, and note;
Hunt v. Hunt, 72 N. Y. 217, 28 Am. R. 129; Colvin v. Reed, 55 Pa. 375.

2 Burtis v. Burtis, 161 Mass. 508.

3 Cheever v. Wilson, 9 Wall. (U. 8.) 108, 123; Ditson ». Ditson, 4
R. I. 87; Perzell v. Perzell, 91 Ky. 634; Craven v. Craven, 27 Wis. 418;
Harding v. Alden, 9 Greenl. (Me.) 140, 23 Am. D. 549; Garner v. Garner,
56 Md. 127. See also Duxtad v. Duxtad, 17 Wyo. 411, 129 Am. St. R.
1138; Jac. on Dom., sec. 224a, and note.

4 See post, secs. 339, 347.

5 Davis v. Davis, 30 Ill. 180; Masten v. Masten, 15 N. H. 159; Hand-
berry v. Handberry, 29 Ala. 719. See also Duxtad ». Duxtad, supra.

6 White v. White, 18 R. I. 292; Dutcher v. Dutcher, 39 Wis. 651;
Jenness v. Jenness, 24 Ind. 355, 87 Am. D. 335; Wood ». Wood, 54 Ark.
314 DIVORCE JURISDICTION

domiciled, sues the other for divorce, the defendant may
not only defend but may file a cross bill, and a valid decree
may be rendered in his or her favor thereon, unless the
statutory terms clearly forbid.!

, 336. What is Sufficient Residence or Domicile.

\ Though the usual requirement is that the plaintiff shall
have been a “‘resident”’ of the state for a certain time be-
fore commencing the action in order to have a divorce,
residence and similar statutory terms are construed to be
practically synonymous with domicile. It is not satisfied
by any mere sojourning for the statutory time upon the
one hand, or by a mere intended residence upon the other. ,
The remedy of divorce is intended by the state for the
benefit of its own bona fide citizens or inhabitants, and
not for that of mere transients or travelers or those who
come for the sole purpose of taking advantage of its di- ~
vorce laws.2, Whether the domicile required for divorce~
purposes must be adequate for every legal purpose is a
contraverted question. It has been said that it need not,
provided it continues in good faith for the required time
with the intention to remain an indefinite time.* ' However
this may be, an actual, substantial residence within the
state during the statutory period with an intention to make
it a permanent home is quite generally required, and this

172; Hopkins v. Hopkins, 35 N. H. 474. The statutory rule is changed
in some states, at least in favor of the wife.

1 Watkins ». Watkins, 135 Mass. 83; Clutton v. Clutton, 108 Mich.
267, 31. L. R. A 160; Jenness v. Jenness, supra; Ferry v. Ferry, 9 Wash.
239; Contra, Valk v. Valk, 18 R. I. 639.

2 Andrews v. Andrews, 188 U. 8. 14; De Meli v. De Meli, 120 N. Y.
485; 17 Am. St. R. 652; Ross v. Ross, 103 Mass. 575; Dunham ». Dun-
ham, 162 Ill. 589, 35 L. R. A. 70; Beach v. Beach, 4 Okla. 359; Hall ».
Hall, 25 Wis. 600; Dutcher ». Dutcher, 39 Wis. 651; In re Ellis’ Est.,
55 Minn. 401, 43 Am. St. R. 514, 23 L. R. A. 287; Calef v. Calef, 54
Me. 365, 92 Am. D. 549; Jenness v. Jenness, supra; Coddington 2.
Coddington, 20 N. J. Eq. 263; Perzell v. Perzell, 91 Ky. 634.

3 See Strait v. Strait, 3 MacArth. 415. Compare 2 Bish. Mar. Div.
& Sep., sec. 97; 1 Nels. Div. & Sep., sec. 41; Hinds v. Hinds, 1 Ia. 36.
DIVORCE JURISDICTION 315

as we have seen is substantially what the law regards as
domicile.’ ;

337. Same—Motive in Changing Domicile—Evidence.

While one who moves to a state simply to obtain a
divorce and then depart is not entitled to a decree, and if
he obtains one it is void,? still, that one of his motives,
or even his principal motive, in coming there was to take
advantage of a divorce law more favorable than that of
the place whence he came does not prevent him from ac-
quiring a domicile sufficient to entitle him to a divorce,
provided he has a bona fide intent to remain and make it
his permanent home.* While the uncontradicted testi-
mony of the plaintiff as to the intention with which he
has resided in the divorcing state is ordinarily conclusive,
still, facts and circumstances of suspicion may overcome
his testimony and satisfy the court that no actual, bona
fide domicile was acquired. That he left his home and
family, his business and affairs, that he had no interests
of a serious or permanent nature where the divorce was
sought, and that he applied for it promptly upon the
expiration of the statutory period, are all evidence against
him.

1See Firth v. Firth, 50 N. J. Eq. 137; Hall ». Hall, 25 Wis. 600;
Beach »v. Beach, 4 Okla. 359; Tipton v. Tipton, 87 Ky. 243; Kern ». Field,
68 Minn. 317, 64 Am. St. R. 479; Bechtel ». Bechtel, 101 Minn. 511,
and note thereto in 12 L. R. A. (N.S.) 1100.

* Leith v. Leith, 39 N. H. 20; Dunham »v. Dunham, 162 IIl. 589,
35 L. R. A. 70; Gregory v. Gregory, 76 Me. 535; Hanover v. Turner,
14 Mass. 227, 7 Am. D. 203; Strectwolf ». Streitwolf, 58 N. J. Eq. 563,
78 Am. St. R. 630; Sewall v. Sewall, 122 Mass. 156, 23 Am. R. 299;
Beach »v. Beach, supra. There is a prevalent impression that so-called
migratory divorces are very frequent. The contrary seems to be
true.

3 Colburn v. Colburn, 70 Mich. 647; Fosdick v. Fosdick, 15 R. I. 180.

4 Winship v. Winship, 16 N. J. Eq. 107; Albee v. Albee, 141 Ill. 550.

5 Chase v. Chase, 72 Mass. 157; Winship v. Winship, supra; Beach
v. Beach, 4 Okla. 359. Generally, findings or recitals as to residence in
divorce decrees are not conclusive upon courts of other states. See
Minor’s Confl. L. 197; Hunt ». Hunt, 72 N. Y. 217, 28 Am. R. 129.
316 DIVORCE JURISDICTION

338. Jurisdiction with Reference to Extraterritorial

Force of Divorce Decree.

| As previously noted, no state or country has power to
fix directly the status of any person not domiciled within
its borders. Residence or domicile of at least one party
to a divorce action within the divorcing jurisdiction is
therefore necessary, not merely to make the decree effect-
ive there by the very terms of the divorce statutes, but
to give it validity elsewhere under the settled principles
of international and interstate law. Bearing this principle
in mind, the following propositions as to the extraterri-
torial effect of a divorce decree appear to be well settled,
at least in the United States:

1. Where neither party is domiciled where the divorce
is granted, it is void elsewhere, however it may be regarded
in the divorcing state. This is true though both parties
are temporarily within the state and process is served
there and both appear and attempt to submit themselves
to the jurisdiction of the court.!

2. Where both parties are domiciled where a divorce
is granted, if it is valid there it is valid everywhere, not
only under the rules of private international law, but
under the “‘full faith and credit” clause of the federal
constitution.? And this is true though the defendant
was at the time residing elsewhere, and was not served
with process in the state where the divorce was granted,
and did not voluntarily appear, provided his or her legal
domicile was still within the latter state.®

1 See ante, sec. 333; Bell v. Bell, 181 U.S. 175; People v. Dawell, 25
Mich. 247, 12 Am. R. 260; Watkins ». Watkins, 125 Ind. 163, 21 Am.
St. R. 217; Van Fossen v. State, 37 Ohio St. 317, 41 Am. R. 507; Neff
v. Beauchamp, 74 Ia. 92; State ». Armington, 25 Minn. 29, 36; Gregory
v. Gregory, 78 Me. 187, 57 Am. R. 792; Chase v. Chase, 6 Gray (Mass.),
157, and cases cited post, sec. 347.

? Roth v. Roth, 104 Ill. 35, 44 Am. R. 81; Cheever ». Wilson, 9 Wall.
(U. 8.) 108; Andrews v. Andrews, 188 U. 8. 14; Barrett v. Failing, 111
U. §. 523; Cheeley ». Clayton, 110 U.S. 701; Haddock »> Haddock,
201 U.S. 562.

> Atherton v. Atherton, 181 U. 8. 155; Loker ». Gerald, 157 Mass.
DIVORCE JURISDICTION 317

3. Where a domiciled plaintiff sues a non-domiciled
defendant for divorce and the latter is served with process
within the divorcing state, or voluntarily appears and
submits to the jurisdiction of the court, the decree is
valid everywhere if valid where entered, both in rem, as
affects the marriage status, and in personam, so far as.
concerns alimony and other collateral matters within the
control of the court.!

339. Same—Ex Parte Decrees.

A considerable proportion of the divorces in this country
for many years past have been granted ex parte; that is,
against defendants who were not resident or domiciled
within the divorcing state at the time of the decree, and
who were neither served with process therein nor volun-
tarily appeared in the action or otherwise submitted to
the jurisdiction of the divorcing court, jurisdiction resting
solely upon the domicile of the plaintiff and substituted
or constructive service upon the defendant. The avidity
with which these so called ‘‘ex parte-decrees’’ have been
sought and obtained for years by all classes of people,
and the confidence with which they have been relied upon
as the basis of new and often fruitful unions, renders their
extraterritorial validity one of the gravest questions that
confronts both lawyers and publicists at the present day
in view of the conflicting decisions of our state and federal
courts. ,

As to ex parte divorces only two propositions appear to
hold good universally :

1. An ex parte divorce is valid for all purposes and as
to both parties in the state where it is granted if the pro-
ceeding is without fraud and in conformity to its laws.?

42, 34 Am. St. R. 252, 16 L. R. A. 497. See also as to the doctrine of
matrimonial domicile, post, sec. 343.

1Cheever v. Wilson, supra; Jones v. Jones, 108 N. Y. 415, 2 Am.
St. R. 447; Massey v. Stimmel, 15 Ohio C. Ct. R. 439, 8 Ohio D.
237; Lynde v. Lynde, 162 N. Y. 405, 76 Am. St. R. 332, 48 L. R. A.

679; post, next sec. and post, sec. 446.
2 Where neither party is domiciled in the divorcing state, the decree
318 DIVORCE JURISDICTION

2. The court granting an ex parte divorce can render no
personal judgment, whether for alimony, costs or other-
wise, that will bind the defendant, either outside the dir
vorcing state or within it,! though doubtless it may in-
cidentally adjudicate upon property rights within the
state, at least under statutes.

The most important remaining question, therefore, is
how far an ex parte divorce willbe recognized as affect-
ing the marital status and its incidents as to one or both
parties in states other than that where it was granted.
Whatever view is taken of the matter, the results are often
unsatisfactory and unjust, and under the rules prevailing
in some courts they are occasionally absurd or even star-
tling and tragic, as will incidentally appear.’

340. View That Ex Parte Decree Granted Elsewhere
Valid as to Status of Both Parties.

In the majority of our states a decree of divorce granted
in another state will be deemed valid as to the marital
status of both parties if it was valid by the lex fori, though
the plaintiff only was domiciled where the decree was
granted, and the defendant was not served with process
within the divorcing state and did not voluntarily appear
and submit to the jurisdiction. Various reasons have been
given in support of this rule. Among them comity and the
inconvenience and uncertainty that would arise from a
contrary rule have had a prominent place. Most of the
cases, however, regard a divorce suit, so far as it seeks to

is of course invalid elsewhere (ante, sec. 338), save to the extent that
the courts of other states may treat the parties as estopped to question
it collaterally. Post, sec. 432.

1 Smith v. Smith, 74 Vt. 20, 93 Am. St. R. 882; Harding ». Alden, 9
Me. 140, 23 Am. D. 549. See Pennoyer v. Neff, 95 U. S. 714, where
jurisdiction to render judgments in personam and in rem is generally
considered. Rigney v. Rigney, 127 N. Y. 408, 24 Am. St. R. 462; De
La Montanya v. De La Montanya, 112 Cal. 101, 53 Am. St. R. 165,
32 L. R. A. 82; Rea v. Rea, 123 Ia. 241.

2 See 2 Nels. Div. & Sep., sec. 31; note to Succession of Benton, 106
La. 494, in 59 L. R. A. 135; article in 70 Cent. L. Jour. 93.
DIVORCE JURISDICTION 319

deal with the marriage status, as in the nature of a pro-
ceeding in rem (quasi in rem) in which the res is the mar-
riage status of the plaintiff. They assume that every state
has a right to fix the status of those domiciled within its
borders, and that when a given state has declared a person
‘so domiciled to be single, conformably to its laws, he must
be deemed to have the status of a single person elsewhere.
Carrying this reasoning to its logical conclusion, if the
plaintiff is, by the decree of the court of his domicile, made
a single person, the defendant must be single also, though
domiciled elsewhere when the decree was rendered, since
the idea of a wife without a husband or a husband without
a wife is repugnant to our fundamental conception of mar-
riage as a thing that exists only in pairs.!

Some courts and text writers have endeavored to fortify
their opinions by reference to the clause of the federal
constitution which demands that ‘“‘full faith and credit
shall be given in each state to the public acts, records
and judicial proceedings of every other state.”’? But
the federal Supreme Court (four justices dissenting) has
recently decided that the ‘‘full faith and credit clause”
has no bearing upon a strictly ex parte divorce, and
hence that whether such a divorce will be regarded as
affecting the status of the non-domiciled defendant must
be determined by the law of the latter’s domicile.’

341. Same—Alimony, Dower and Other Incidents.
Not all courts that regard an ex parte decree in another

21 Nels. Div. & Sep., sec. 29; 2 Bish. Mar. Div. & Sep., secs. 153
et seq.; Ditson v. Ditson, 4 R. I. 87; Harding v. Alden, 9 Me. 140, 23
Am. D. 549; Shafer v. Bushnell, 24 Wis. 372; Hood v. State, 56 Ind.
263, 26 Am. R. 21, and cases cited; Van Orsdale v. Van Orsdale, 67 Ia.
35; Dunham v. Dunham, 162 Tll. 589, 35 L. R. A. 70.

22 Bish. Mar. Div. & Sep., secs. 181 et seq.; Gould v. Crow, 57 Mo.
200; Harding v. Alden, supra.

3 Haddock v. Haddock (1906), 201 U. S. 562, 26 Sup. Ct. Rep. 525.
See article in 62 Cent. L. Jour. 333; Joyner v. Joyner, 131 Ga. 217, 18
L. R. A. (N. 8.) 647, and note. Compare Atherton v. Atherton, 181
U.S. 155. See ante, secs. 339 et seq. Statutes in some states affect
this question. See Wis. Stat., sec. 2360r (Laws of 1909).
320 DIVORCE JURISDICTION

state as a dissolution of the marriage status as to both par-
ties, have been willing to concede it full effect in other
particulars. Thus, it has been held that an ex parte decree
in favor of the husband in Michigan, will not preclude
the wife from suing for divorce and having alimony out
of property situated in Wisconsin where she is domiciled,*
and similar rulings have been made in other states as to
property rights, alimony and the custody of children.’

342. Where Ex Parte Decree Invalid as to Defendant.

Several of the states deny the validity of ex parte decrees
rendered elsewhere, so far, at least, as they affect the
marriage status of their own domiciled citizens. Thus, in
People v. Baker, the wife, domiciled in Ohio, obtained a di-
vorce there, and the husband, whose domicile was in New
York, was never personally served with process in Ohio nor
did he appear there and submit to the jurisdiction of the
‘court. He afterward contracted a second marriage in
New York and was there indicted for bigamy, and his
conviction was sustained by the court of appeals.*? The
principle of this and subsequent cases in that state seems
to be that the marriage status is not a res within the state
of the plaintiff in any such sense that its courts can bind
a domiciled citizen of New York by determining his status,
unless he was served with notice within the jurisdiction
where the decree was rendered or voluntarily appeared
in the proceeding; and such divorces have been refused
recognition, at least so far as domiciled citizens of New
York are concerned, without reference to comity or the

1 Cook v. Cook, 56 Wis. 195, 43 Am. R. 706. See also Buckley ».
Buckley, 50 Wash. 213, 126 Am. St. R. 900.

2 See Cox v. Cox, 19 Ohio St. 502, 2 Am. R. 415; Doerr ». Forsythe, 50
Ohio St. 726, 40 Am. St. R. 703; Kline v. Kline, 57 Ia. 386, 42 Am. R.
47; Van Orsdale ». Van Orsdale, 67 Ia. 35; Thurston v. Thurston, 58
Minn. 279. Some of these cases were decided under statutes. See
also Van Inwagen ». Van Inwagen, 86 Mich. 333; Turner ». Turner, 44
Ala. 437, 450.

#76 N. Y. 78, 82, 32 Am. R. 274, reversing Baker v. People, 15
Hun, 256.
DIVORCE JURISDICTION 321

full faith and credit clause of the federal constitution.!
New Jersey appears to be committed to this doctrine,?
with the qualification that the decree of another state
will be good as to the status of both parties if the plaintiff
was well domiciled there, and the defendant, though,
domiciled in New Jersey and not served or appearing in
the divorcing state, was personally served with notice of
the proceeding, if that was practicable, and had an oppor-
tunity to defend, and the cause of action is such as would
be recognized as ground for divorce in New Jersey.* The
decisions in two or three other states are of the same
tenor as those in New York.‘

343. Same—Doctrine of Matrimonial Domicile.

Where the defendant, in breach of his or her marital
duties, has left the matrimonial domicile and the plaintiff
remains there and sues for divorce, a decree there rendered
upon constructive or substituted service would appear
to be valid everywhere under the rules of international
law and the full faith and credit clause of the federal
constitution. By matrimonial domicile in this connection
is probably meant the place where the parties resided,
animo menendi, in mutual recognition of the marital
relation at the time the delinquency occurred, whether
the marriage took place there or not.°®

1 De Meli v. De Meli, 120 N. Y. 485, 17 Am. St. R. 652; Lynde ».
Lynde, 162 N. Y. 405, 48 L. R. A. 679, 76 Am. St. R. 332; Winston ».
Winston, 165 N. Y. 553; Olmstead ». Olmstead, 190 N. Y. 458, 123
Am. St. R. 585; Haddock ». Haddock, 201 U. 8. 562. See also O’Dea
v. O’Dea, 101 N. Y. 23. That a strictly ex parte decree granted else-
where is void as to both parties in New York see Olmstead v. Olm-
stead, supra.

2 Doughty v. Doughty, 28 N. J. Eq. 581; Flower v. Flower, 42 N. J.
Eq. 152.

3 Felt v. Felt, 59 N. J. Eq. 606, 83 Am. St. R. 612, 47 L. R. A. 546;
Wallace v. Wallace, 62 N. J. Eq. 509.

‘Colvin ». Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308, 1 Am. R.
414; Harris v. Harris, 115 N. Car. 587, 44 Am. St. R. 471; McCreery
v. Davis, 448. Car. 195, 51 Am. St. R. 794, 28 L. R. A. 655.

’ Haddock v. Haddock, 201 U. 8. 562, 570, 571; Atherton 2, Atherton,

21
322 DIVORCE JURISDICTION

344. At Least One Party Must Be Domiciled—Estop-
pel to Question Jurisdiction in Collateral Proceeding.

To give a decree of divorce validity elsewhere, as we
have seen, at least one of the parties must have been
domiciled in the divorcing state in accordance with its
laws. Furthermore, in order to give the decree force as
to the status of either party in any other jurisdiction, the
domicile must be an actual bona fide one within the mean-
ing of the term in international law, even though the law
of the divorcing state may be satisfied with something
less.!. A party who is active in procuring a decree void
for want of jurisdiction, however, would commonly be es-
topped from asserting its invalidity in a collateral pro-
ceeding involving property or property rights.”

345. Place of Marriage or Marital Offense Immaterial.

-It is usually deemed immaterial where the marriage
-was celebrated or the matrimonial offense committed in
determining the plaintiff’s right to a divorce, unless the
local law contains special provisions on the subject, for
domicile, and not the place of marriage or the delin-
quency gives jurisdiction.® ‘

.181 U.S. 155; State ex rel. Aldrach v. Morse, 31 Utah, 213, 7 L. R. A.
(N. 8.) 1127, and note; Buckley ». Buckley, 50 Wash. 213, 126 Am. St.
R. 900. And see 21 Harv. L. Rev. 296; LeMesurier ». Le Mesurier,
1895 App.Cas. 517.

1 See ante, sec. 336, and cases cited; Van Forsen v. State, 37 Ohio St.
317, 41 Am. R. 507; Way v. Way, 64 Ill. 406; Beach v. Beach, 4 Okla.
359. Where the statute permits a non-domiciled plaintiff to sue a
domiciled defendant, the decree will be valid elsewhere if valid where
obtained. As to the validity of divorces granted in foreign countries
as affected by domicile, see St. Sure v. Lindsfelt, 82 Wis. 346, 33 Am.
St. R. 50, and note thereto in 19 L. R. A. 515; Roth v. Roth, 104 Ill.
35, 44 Am. R. 811.

2Inre Ellis Est., 55 Minn. 401, 43 Am. St. R. 514, 23 L. R. A. 287;
Starbuck v, Starbuck, 173 N. Y. 503, 93 Am. St. R. 631, and cases cited;
Watkins v. Watkins, 135 Mass. 83. Compare Andrews v. Andrews,
188 U. 8. 14. As to acceptance of benefits of a void decree so far as
property rights are concerned, see 1 Nels. Div. & Sep., sec. 519; Mohler
v. Shank, 93 Ia. 273, 57 Am. St. R. 274, and note, 34 L. R. A. 161.

3 Roth v. Roth, 104 Ill. 35, 44 Am. R. 81; Harding v. Alden, 9 Me.
~ DIVORCE JURISDICTION 323

346. Restraints on Remarriage.

Generally speaking, neither a statute nor a provision
in the decree forbidding one or both parties to a divorce
suit to remarry has any force beyond the limits of the
divorcing state. This question, however, has been else-
where discussed.! Clearly, where the divorce is ex parte
no such prohibition would bind the non-domiciled de-
fendant, save perhaps in the state where the decree was
granted.”

347. Notice, Process and Appearance.

Where neither party is domiciled where a divorce is
granted it will usually be void there, so far as it affects
the marriage status, by virtue of the local statutes and
policy, and will be clearly invalid elsewhere under prin-
ciples already stated. It makes no difference what notice
is given or what process served, or even that both parties
consent to the jurisdiction and appear in court.’ But if
the plaintiff is domiciled where the decree is granted, the
appearance of the defendant, unless for the special pur-
pose of contesting the jurisdiction, gives the court power
to decree a divorce valid everywhere as to the status of
both parties,* to award alimony and to adjudicate their
property rights and their respective rights as to the
custody of children ® without regard to defects in the
notice or process.

If the defendant is in the state and his whereabouts are
known so that he can be personally served, such service
is usually required. But where personal service is im-
possible, as where the defendant resides outside the state

140, 23 Am. D. 549; Harrison v. Harrison, 19 Ala. 499; Shafer ». Bush-
nell, 24 Wis. 372; Colburn v. Colburn, 70 Mich. 647.

1 See ante, sec. 100.

? Garner v. Garner, 56 Md. 127; Van Storch v. Griffin, 71 Pa. 240.

3 See ante, sec. 333.

‘Barrett v. Failing, 111 U. S. 523; Jones ». Jones, 108 N. Y. 415,
2 Am. St. R. 447. See also Arrington v. Arrington, 102 N, Car. 491, 514.

5 See ante, sec. 338.
324 DIVORCE JURISDICTION

or his whereabouts are unknown, substituted or con-
structive service of notice or process by publication or
by mail, or both, is probably always provided for, and
when properly made under the local law will give juris-.
diction to pronounce a decree conclusive as to the mar-
riage status of the domiciled plaintiff in all states with the
exception of New York, and as to that of the defendant in
nearly all of them, as we have seen.! These statutes pro-
ceed upon the principle of publicity in the interest of the
state, and notice to the defendant, so far as that is reason-
ably possible to be given. The details of this matter are not
within the scope of this work. It must be enough to say,
therefore, that in many states the provisions as to service in
other actions are expressly applicable to divorce. They are
also applicable where the statute points no special mode,
but prescribes one method for “‘all actions.” ? Special
modes of service are prescribed for divorce actions in sev-
eral states, but whatever be the prescribed method the
statute must be strictly complied with in all essential de-
tails or no jurisdiction is acquired.®

1See Pennoyer »v. Neff, 95 U. 8. 714. Compare Olmstead ». Olm-
stead, 190 N. Y. 458, 123 Am. St. R. 585.

2 Brown v. Brown, 10 Neb. 349.

3 See Cheeley v. Clayton, 110 U. S. 701; Chase v. Chase, 61 N. H.
123; Jenne v. Jenne, 7 Mass. 94.
CHAPTER XXX
CAUSES FOR DIVORCE

348. In General.

In England, under the ecclesiastical jurisdiction and
policy, absolute divorce, or divorce a vinculo matrimonii,
except by act of Parliament was unknown until the
divorce act of 1858, which authorized such divorces for
adultery of the wife and for adultery of the husband under
certain circumstances, and for cruelty. As already seen,
the law of judicial divorce, whether limited or absolute,
in this country is statutory, in the sense that divorces can
be granted by the courts for such causes only as are speci-
fied in the written law of the divorcing state.?

349. Constitutionality and Interpretation of Divorce
Statutes.

The bearing of the ecclesiastical law upon the inter-
pretation of our divorce laws having already been con-
sidered,* the principal remaining question of importance
is whether, and how far, these statutes are to be given a
retrospective operation. This is partly one of constitu-
tionality and partly one of interpretation.

Marriage is a status and not a contract, hence a law
which authorized divorce for a cause arising before its
enactment is not in reason unconstitutional as impairing
the obligation of contracts, so far as the marriage status
alone is concerned.* Whether such legislation violates

1 See Stats. 21 & 22 Vict., Chap. 85; post, secs. 350, 355.

2 See ante, sec. 332.

3 See ante, sec. 332.

‘Jones v. Jones, 2 Tenn. (Overton) 2, 5 Am. D. 645; Carson ».
Carson, 40 Miss. 349; Berthelemy ». Johnson, 3 B. Monr. (Ky.) 90,
38 Am. D. 179.

325
326 CAUSES FOR DIVORCE

constitutional provisions against ex post facto and retro-
spective laws has given rise to conflicting views. By the
weight of authority it does not,! though there is authority
the other way.? So far as alimony and property rights are
concerned, however, they probably cannot be affected by.
a decree based upon a delinquency not a cause for divorce
when it occurred.? But while statutes authorizing a
divorce for causes occurring before the enactment of the
statute will usually be deemed constitutional,* the courts
will not, as a rule, give divorce statutes retrospective
operation unless the legislature plainly intended them to
have it.’ If the statute simply provides a better or more
ample remedy, however, it will more readily be assumed
to apply to prior wrongs.®

. It has been held that the repeal of all statutes authoriz-
ing divorce, in the absence of a saving clause, deprives the
courts of jurisdiction to grant divorce for past delin-
quencies even in actions pending.’ But the rule is doubt-
less otherwise where the repeal is accompanied by the
enactment of a new statute prescribing the same or even
more liberal grounds for divorce.®

1 Jones v. Jones, supra; Carson v. Carson, supra; West v. West, 2
Mass. 333; Smith v. Smith, 3S. & R. (Pa.) 248; Bigelow v. Bigelow,
108 Mass. 38; Berthelemy v. Johnson, supra. Compare Hunt ». Hunt,
72 N. Y. 217, 28 Am. R. 129. *

2 Jarvis v. Jarvis, 3 Edw. Ch. (N. Y.) 462; Clark v. Clark, 10 N. H.
380, 34 Am. D. 165; Given v. Marr, 27 Me. 212; Greenlaw ». Greenlaw,
12 N. H. 200; Dickinson v. Dickinson, 3 Murph. (N. Car.) 327, 9 Am.
D. 608.

3 See Curtis ». Hobart, 41 Me. 230. Compare West v. West, 2 Mass.
227; Berthelemy ». Johnson, supra.

4 Carson v. Carson, supra.

5 Greenlaw v. Greenlaw, 12 N. H. 200; Giles v. Giles, 22 Minn. 348;
Sherburne v. Sherburne, 6 Me. 210; McCraney ». McCraney, 5 Ia. 232,
68 Am. D. 702; Cole v. Cole, 27 Wis. 531.

6 West v. West, 2 Mass. 233. Compare Stewart ». Vandervort, 34
W. Va. 524, 12 L. R. A. 50.

_ 7Grant v. Grant, 12 S. Car. 29, 32 Am. R. 506.

8 Tufts v. Tufts, 8 Utah, 142, 16 L. R. A. 482.
DIVORCE FOR ADULTERY 327

ADULTERY

350. In General.

Adultery is deemed by universal consent the heaviest
offense against the marriage relation, and is almost every-
where recognized as a ground for absolute divorce, both
by the temporal authorities and by nearly all branches of
the Christian church.! In England and a few of our states
the adultery of the wife is deemed a graver offense than
the simple adultery of the husband, because, doubtless, her
adultery can alone cast on the marriage a spurious issue,
and the adultery of the husband is fraught with less serious
social consequences to the wife than is her adultery to the
husband.? Generally, however, the statutes make adul-
tery by either spouse a ground for divorce, and certainly,
whatever may be the comparative guilt of the respective
parties from a moral and social standpoint, the offense in
either spouse should be deemed sufficiently grave to sus-
tain an action by the injured one, if divorce is to be
granted at all. :

351. Definition—What Constitutes.

Adultery, in divorce law, is the voluntary sexual inter-
course of a married person with one not the husband or
wife. Thus defined, voluntary sexual intercourse by

1 So strongly is the idea that marriage is a sacrament insisted upon
by the Church of Rome, that absolute divorce, even for adultery, is
not sanctioned save with the consent of the Pope. But in this country
where there is total separation of church and state, the views or canons
of the church have no bearing or influence upon the legal right of any
party to have divorce for any cause, or upon the purely civil conse-
quences of a decree.

2 See statutes and decisions in England and in Kentucky, Texas and
North Carolina. |

‘1 Bish. Mar. Div. & Sep., sec. 1502. See 1 A. & E. Ency. Law
(2d Ed.), 474 et seq., as to the meaning of the term in other depart-
ments of the law. Whether sodomy is adultery or cruelty or an inde-
pendent wrong seems uncertain. It seems to have been cause for
divorce under the: ecclesiastical law, however, and is so by statute in
two or three states, and would doubtless constitute cruelty in others.
1 Nels. Div. & Sep., sec. 393.
328 DIVORCE FOR ADULTERY

either spouse with an unmarried person is adultery, for
it is as much an offense against the marriage as if the
particeps criminis were married.!_ The intercourse, how- .
ever, must be voluntary, and a woman who is ravished,’?
or a man or woman who is incapable, by reason of mental
incapacity, of consenting, is not guilty of adultery war-
ranting divorce,* and so where the woman is the victim
of fraud.

352. Same—Intercourse Under Void and Voidable
Second Marriage.

Whether one who contracts a void or voidable marriage
is guilty of adultery as against a prior subsisting one is a
question not free from difficulty. If the second marriage
be voidable merely, as it may be under peculiar statutes,*
cohabitation under it does not constitute adultery unless
the injured party to the first marriage procures a judicial
dissolution thereof, whereupon a continuance of co-
habitation under the second marriage constitutes that
offense.’ Voluntary cohabitation under a void marriage,
however, always constitutes adultery as against a prior
valid marriage, unless it was due to innocent mistake of
fact as distinguished from mistake of law. A common
illustration is where there is remarriage and cohabitation
under it after a decree of divorce void for want of juris-
diction. In these and similar cases, all that is necessary

1 State v. Fellows, 50 Wis. 65; Mosser ». Mosser, 29 Ala. 313.

2 People ». Chapman, 62 Mich. 280, 4 Am. St. R. 857.

3 Kretz v. Kretz, 73 N. J. Ch. 246, and authorities cited; Nichols ».
Nichols, 31 Vt. 328, 73 Am. D. 352; Com. v. Bakeman, 131 Mass. 577,
41 Am. R. 248. Compare Matchin v. Matchin, 6 Pa. 332, 47 Am. D.
466.

4See ante, sec. 61.

5 Valleau v. Valleau, 6 Paige (N. Y.), 207.

6 Pierce v. Pierce, 160 Mass. 216; Pratt v. Pratt, 157 Mass. 503, 21
L. R. A. 97, and cases cited; Robertson v. Robertson, 9 Daly (N. Y.),
44. Mistake of fact cannot be urged where there was negligent omis-
sion to ascertain the facts. Compare Gordon v. Gordon, 141 III. 160,
33 Am. St. R. 294, 21 L. R. A. 387, with cases above.
DIVORCE FOR CRUELTY 329

is that the party remarrying should know the facts, how-
ever mistaken he may be as to the law.! Yet where a
woman had procured a void divorce from her husband
who afterward married again, and both she and he were
chargeable with knowledge of the facts, she was denied a
divorce on the ground of his adultery in cohabiting with
_ the second wife for the reason, in part, that she had practi-
cally connived at his offense.?

353. Consequences of Adultery Independent of Di-
vorce.

Adultery, even where divorce is not granted for any
cause, doubtless justifies a cessation of cohabitation and
forfeits the right of the guilty wife to maintenance,’ and
in England and a number of our states her wrong may,
under certain circumstances, bar her dower.*

354. Same—Pleading and Evidence. (See post, secs.
403. 407.)

CRUELTY

355. Upon What Theory Divorce for Cruelty Granted.

Cruelty, as we have seen, was a ground for the limited
divorce of the common or ecclesiastical law, and warrants
absolute or limited divorce in all of our states save South
Carolina. The reasons for declaring cruelty a cause for
divorce are largely obvious, being the justice of releasing
an innocent spouse from a condition of intolerable suffer-
ing, and the fact that in a state of danger of personal harm,
or fear of its infliction, practically none of the duties of

1 Moors v. Moors, 121 Mass. 232; Simonds v. Simonds, 103 Mass.
572, 4 Am. R. 576; Leith v. Leith, 39 N. H. 20; Vischer v. Vischer, 12
Barb. (N. Y.) 640; State ». Goodenow, 65 Me. 32. See post, sec. 430,
as to the marriage after decree nisi. As to marriage during time for
appeal, see ante, sec. 67; 1 Nels. Div. & Sep., sec. 135.

2 Palmer v. Palmer, 1 Sw. & Tr. 551.

3 See ante, sec. 122.

4See ante, sec. 213; Reynolds v. Reynolds, 24 Wend. (N. Y.) 193.
330 DIVORCE FOR CRUBLTY

matrimony can be properly performed.! The theory of the
ecclesiastical law in granting limited divorce for cruelty
was not so much punishment of the guilty party as the
security of the injured one. ‘‘The proceeding,” says Dr.
Bishop, “‘is in effect quia timet,”’ and under our statutes,
as at common law, its object is relief to the sufferer rather
than punishment to the offender.?

356. What Constitutes Cruelty—In General.

Wherever our statutes give jurisdiction to grant divorce
(whether limited or absolute) for cruelty, that term is
construed to mean substantially the cruelty of the com-
mon or ecclesiastical law, unless the word cruelty or its
equivalent is accompanied by qualifying words which
reasonably demand for it a broader or narrower interpreta-
tion.? The meaning of some of the particular statutory
terms is later discussed.*

Direct judicial definitions of cruelty both here and in
England are few and unsatisfactory. In most cases they
are merely negative, being statements of what does not
constitute cruelty rather than what cruelty really is.
The most celebrated of these is that of Lord Stowell in
Evans v. Evans, decided in 1790.5 Upon a narrow in-
terpretation of this description, many of the decisions
limit legal cruelty to physical violence endangering life
or limb, or threats which raise a reasonable fear of its
infliction, while upon a broader interpretation the inflic-
tion of mental suffering sufficient to endanger life or
health is deemed adequate. On this account, the most
important and oft quoted portions of the opinion are
given in the note below.®

1 Milford v. Milford, L. R. 1 P. & D. 295; Evans ». Evans, 1 Hagg.
Con. 35; Johnson v. Johnson, 4 Wis. 135.

2See Mar. Div. & Sep., sec. 1536; Morris ». Morris, 14 Cal. 76, 73
Am. D. 615; post, sec. 361.

8 Donald v. Donald, 21 Fla. 571; Hawkins ». Hawkins, 65 Md. 104.

4 See post, sec. 364.

* 1 Hagg. Con. 35, 4 Eng. Ece. 310, 311.

6“That the duty of cohabitation is released by the cruelty of one
DIVORCE FOR CRUELTY 331

The reluctance of courts to venture positive definitions
of cruelty is due in part, no doubt, to the inherent diffi-
culty of the subject, and partly, perhaps, to a feeling that
what might not constitute legal cruelty at one time or in
one state of society might clearly constitute it at a differ-
ent time and under a different state of manners and social
life. While any definition of cruelty, therefore, must be
largely tentative at the present time, it may be generally
understood as such willful misconduct of one spouse as
seriously endangers the life, limb or bodily or mental
health of the other, whether in fact or in reasonable ap-

of the parties is admitted, but the question occurs, What is cruelty?
In the present case it is hardly necessary for me to define it, because
the facts here complained of are such as fall within the most restricted
definition of cruelty; they affect not only the comfort, but they affect
the health, and even the life of the party. I shall therefore decline the
task of laying down a direct definition. This, however, must be under-
stood, that it is the duty of the courts, and consequently the inclina-
tion of the courts, to keep the rule extremely strict. The causes must
be grave and weighty, and such as show an absolute impossibility that
the duties of the married life can be discharged. In a state of personal
danger no duties can be discharged; for the duty of self-preservation
must take place before the duties of marriage. What merely wounds
the mental feelings is in few cases to be admitted, where not accom-
panied with bodily injury, either actual or menaced. Mere austerity
of temper, petulance of manners, rudeness of language, a want of civil
attention and accommodation, even occasional sallies of passion, if
they do not threaten bodily harm, do not amount to legal cruelty.
They are high moral offenses in the marriage state, undoubtedly, not
innocent surely in any state of life, but still they are not that cruelty
against which the law can relieve.

“Still less is it cruelty where it wounds not the natural feelings, but
the acquired feelings, arising from particular rank and situation; for
the court has no scale of sensibilities by which it can gauge the quantum
of injury done and felt; and therefore, though the court will not abso-
lutely exclude considerations of that sort where they are stated merely
as matter of aggravation, yet they cannot constitute cruelty where it
would not otherwise have existed.

“In the older cases of this sort which I have had an opportunity of
looking into, I have observed that the danger of life, limb or health is
usually inserted as the ground upon which the court has proceeded to
a separation.”
332 DIVORCE FOR CRUELTY

prehension, and for which the sufferer has given no ade-
quate provocation or excuse.

357. Physical Violence—Mental Suffering—Danger to
Health or Reason.

By most of the older and some modern cases, physical
violence, actual or reasonably apprehended, seems to be
the legal test of cruelty.”

But as one court shortly remarks, ‘‘There are many
ways to break a wife’s heart without breaking her head,”’ *
and another court in speaking of the older authorities
observes: ‘‘Constant, innumerable and nameless indig-
nities of speech and action, each possibly petty in itself,
might cause anguish less endurable, more hurtful to. phys-
ical well-being, and more likely to overturn reason than
any degree of pain produced by blows; they might make
life intolerable and death welcome, yet they were not
cruelty.” 4 Under pressure of these considerations, the
great weight of recent authority, English and American,
adopts the rule that physical violence, actual or threat-
ened, is not the absolute criterion of legal cruelty.’ While
“keeping the rule extremely strict,’ the misconduct is
judged more by its effect upon the physical and mental
health and safety of the complainant than by its precise
character. Thus, malicious and unfounded charges of

1See Williams v. Williams, 101 Minn. 400, 405; Gardner ». Gardner,
104 Tenn. 410, 78 Am. St. R. 924.

2 Harris v. Harris, 2 Ph. Ecc. 111 (1813); Maddox v. Maddox, 189
Ill. 152, 82 Am. St. R. 431, 52 L. R. A. 628; Cook ». Cook, 11 N. J. Eq.
195. See also the preceding section.

3 Crichton ». Crichton, 73 Wis. 59, 63.

4 Robinson v. Robinson, 66 N. H. 600, 49 Am. St. R. 632, 15 L. R. A.
121. See also Freeman v. Freeman, 31 Wis. 235, 249.

5 Statutes in several states sanction divorce for cruelty, whether by
the infliction of personal violence ‘‘or any other means.’’ See statutes
in Wisconsin, Arizona, Michigan and Nebraska.

~ 6 Kelly v. Kelly, L. R. 2 P. D. 31, 59; Mytton ». Mytton, u P. D.
141; Butler ». Butler, 1 Par. Eq. Cas. (Pa.) 329; Gholston v. Gholston,
31 Ga. 625; Palmer v. Palmer, 45 Mich. 150, 40 Aan R. 461; Carpenter
DIVORCE FOR CRUELTY 333

adultery against the wife, even in private, and more
particularly in the presence of her children or of strangers,
are legal cruelty in most jurisdictions, particularly when
coupled with other circumstances of insult and abuse.!
It would be otherwise, however, if such charges were
made honestly and upon just ground of suspicion, par-
ticularly if they were due to her indiscreet conduct,
though it fell short of adultery.”

Extreme and wanton cruelty inflicted upon her chil-
dren in her presence will ordinarily constitute cruelty to
the wife; * and so of willful neglect in sickness, including
the refusal of medical attendance, the husband having
ability to provide it, the last two cases being analogous
to the infliction of direct bodily harm.* The willful com-
munication of syphilis or other loathsome disease con-
stitutes legal cruelty,® and so of refusing to permit the

v. Carpenter, 30 Kans. 712, 46 Am. R. 108; Reinhard v. Reinhard, 96
Wis. 555, 65 Am. St. R. 66, and note reviewing authorities; Robinson
v. Robinson, 66 N. H. 600, 15 L. R. A. 121, 49 Am. St. R. 632; Bailey
v. Bailey, 97 Mass. 373; Hullinger v. Hullinger, 133 Ia. 269; Barnes ».
Barnes, 95 Cal. 171, 16 L. R. A. 660; Williams v. Williams, 101 Minn.
400; Gardner v. Gardner, 104 Tenn. 410, 78 Am. St. R. 924; Waltermire
v. Waltermire, 110 N. Y. 183, and cases cited throughout this section.

1 Paterson v. Paterson, 3 H. L. Cas. 308, 324; Palmer ». Palmer,
supra; Jones v. Jones, 60 Tex. 451; Crow ». Crow, 29 Oreg. 392; Wil-
liams v. Williams, supra, and cases cited on p. 407 of the opinion.
Similar charges of adultery against the husband may be legal cruelty,
particularly if so made as to bring him into public scandal, ridicule
and disrepute. Williams v. Williams, supra, and cases cited. See
Holmes ». Carrier, 16 La. Ann. 94. As to a charge of impotency see
Berdolt v. Berdolt, 56 Neb. 792, 801.

2 Beach v. Beach, 4 Okla. 359, 390; Evans v. Evans, 82 Ia. 462;
Scoland v. Scoland, 4 Wash. 118. Generally as to charges of adultery
and similar misconduct as cruelty, see extended note to Matthewson
v. Matthewson in 18 L. R. A. (N. 8.) 300.

3 Everton v. Everton, 50 N. Car. 202; Dunlap v. Dunlap, 49 La. Ann.
1696.

4 Mercer v. Mercer, 114 Ind. 558; Doolittle v. Doolittle, 78 Ia. 691,
6 L. R. A. 187; Sharp v. Sharp, 116 Ill. 509.

5 Long v. Long, 9 N. Car. (2 Hawk.) 189; McMahan v. McMahan,
186 Pa. 485, 41 L. R. A. 802.
304 DIVORCE FOR CRUELTY

wife to bear children and compelling her to submit to the
procurement of repeated abortions.+

The acts or omissions that, alone or in combination
with others, have been held to constitute legal cruelty,
without actual or direct physical violence, would be im-
possible to enumerate, and each case must be determined
largely upon its own merits. A systematic course of
domestic tyranny, though it may involve neither blows
nor threats of physical harm, may well constitute cruelty.”
So, where the husband flaunts his adulteries in the face of
his wife, or so conducts himself with other women as to
lead to public scandal and to the reasonable belief on her
part that she has been discarded in favor of a mistress, it
may well be deemed cruelty, though no adultery may have
been proved in fact.®

358. Same—Denial or Abuse of Marital Rights.

With this delicate matter courts are sometimes com-
pelled to interfere, usually at the suit of the wife upon a
showing that the husband has abused his privileges in
this respect and is likely to continue such abuse. To
constitute cruelty, however, it must appear that the
excesses in question have impaired or endangered the
wife’s health. The conduct of the husband must be will-
ful in the sense, at least, that it is in intentional or wanton
disregard of the wife’s wishes and welfare.*

Persistent and unjustifiable refusal of sexual inter-
course is cruelty in states where physical violence is not
the test, provided it is shown that the complainant’s
health is thereby injured or impaired, but not otherwise.®

1 Dunn v. Dunn, 150 Mich. 476.

* For an extreme illustration of this, see Kelly 2. Kelly, L. R. 2 P. &
D. 31.

3 Craig v. Craig, 129 Ia. 192, 2 L. R. A. (N. 8.) 669, and note.

41 Bish. Mar. Div. & Sep., sec. 1629; English v. English, 27 N. J.
Eq. 579; Grant ». Grant, 53 Minn. 181; Youngs v. Youngs, 130 II.
230, 17 Am. St. R. 313, 6 L. R. A. 548; Mayhew »v. Mayhew, 61 Conn.
233, 29 Am. St. R. 195; Lockwood v. Lockwood, 43 Mich. 230.

5 Stewart v. Stewart, 78 Me. 548, 57 Am. R. 822; Schoessow ».
‘DIVORCE FOR CRUELTY 335

359. Single Act—Course of Conduct.

Cruelty usually consists, not in a single act, but in a
series of acts, or a course of conduct which, taken as a
‘whole, demonstrates the danger to the life, health or rea-
son of the complainant.! Still a single act, or isolated
acts occurring at long intervals, may be sufficiently
brutal and outrageous, or may be committed under such
conditions of deliberate malice or ungovernable passion,
as to demonstrate that further cohabitation will put the
complainant in serious jeopardy, and will hence warrant
divorce.”

360. Same—Animus—Intent.

There are undoubtedly numerous acts, “‘often inde-
fensible in themselves,” that do not constitute cruelty if
they proceed from weakness or want of self-control, in-
herent or acquired by habit, rather than from an intent
to injure or annoy. Thus, drunkenness alone is not
cruelty,? nor is gambling or gross extravagance,‘ or even
acts of criminality, when they are not directed toward,
or committed with intent to injure, the other spouse.®

Schoessow, 83 Wis. 553; Campbell ». Campbell, 149 Mich. 147, 119
Am. St. R. 660, and cases cited. As to whether it constitutes deser-
tion see post, sec. 369.

1 Holden v. Holden, 1 Hagg. Con. 453, 4 Eng. Ecc. 452; Smallwood
v. Smallwood, 2 Sw. & Tr. 397; Richards v. Richards, 37 Pa. 225.

2 D’Agular v. D’Agular, 1 Hagg. Ecc. 773, 776; Reeves v. Reeves, 3
Sw. & Tr. 139; Holden v. Holden, supra; Waltermire v. Waltermire, 110
N. Y. 183; Poor ». Poor, 8 N. H. 307, 29 Am. D. 664; Beyer v. Beyer,
50 Wis. 254, 256, 36 Am. R. 848; Jenniss v. Jenniss, 60 N. H. 211;
Ward ». Ward, 108 Ill. 477, 484. See and compare as to “repeated cru-
elty” post, sec. 364.

3 Waskam v. Waskam, 31 Miss. 154; Camp v. Camp, 18 Tex. 528.
It is otherwise if the defendant is guilty of violence when drunk, even
though he is kind when sober. MecVickar ». McVickar, 46 N. J. Eq.
490, 19 Am. St. R. 422; Crichton ». Crichton, 73 Wis. 59; Youngs ».
Youngs, supra.

4 Chestnutt ». Chestnutt, 1 Spinks, 196.

5Sharman ». Sharman, 18 Tex. 521. As to the commission of
sodomy or other unnatural offenses, see ante; sec. 351, note 1. In
336 DIVORCE FOR CRUELTY

Yet where these and similar practices are actually or pre-
sumptively within the control of the defendant, and are
persisted in notwithstanding his knowledge that they
impair health or threaten the reason of the plaintiff, the
strong tendency is to regard them as legal cruelty in
states where, by statute or otherwise, physical violence
is no longer the test.?

Mere ‘‘infirmities of temper or sallies of passion,”
though manifested in the use of obscene and abusive
language, do not of themselves constitute legal cruelty,
unless they lead to a reasonable apprehension of bodily
harm.? But where such misconduct proceeds from malice,
rather than from habit or infirmity, most courts will deem
it legal cruelty where it impairs or endangers health or
reason, unless they have already adopted physical vio-
lence as the test.’

361. Same—Effect of Conduct Complained of.

Divorce for cruelty is granted, not so much for the
wrong of the defendant, as for the safety of the plaintiff.*
Hence, it is probably the rule in nearly all jurisdictions,
in the absence of special statutory terms, that the mis-
conduct complained of must jeopardize life, health or
reason.» Whether it has this effect or not is ordinarily a
question of fact dependent upon the circumstances of
each particular case. While there may be but little

 

 

W: v. W. , 141 Mass. 495, 55 Am. R. 491, solitary sexual
vice was held no ground for divorce when practiced without intent to
annoy the plaintiff.

1 Robinson v. Robinson, 66 N. H. 600, 49 Am. St. R. 632, 15 L. R. A.
121; Fleming v. Fleming, 95 Cal. 430, 29 Am. St. R. 124.

2 Evans v. Evans, 1 Hagg. Con. 35; Beall v. Beall, 80 Ky. 675; Waskam
v. Waskam, 31 Miss. 154; Shell v. Shell, 2 Sneed (Tenn.), 716; Freeman
v. Freeman, 31 Wis. 235.

3 Beall v. Beall, supra; Bailey v. Bailey, 97 Mass. 373.

4 See ante, sec. 355.

’See, however, Carpenter v. Carpenter, 30 Kan. 712, 46 Am. R.
108; Avery ». Avery, 33 Kan. 1, 52 Am. R. 523; Briggs ». Briggs, 20
Mich. 34; Barnes v, Barnes, 95 Cul. 171, 16 L. R. A. 660.
DIVORCE FOR CRUELTY 337

practical difficulty in answering this question in ordi-
nary cases, for conduct calculated to impair the health or
endanger the reason of a person of ordinary suscepti-
bility will doubtless be presumed to have that effect upon
the complainant, unless there is evidence to the contrary,
still it seems somewhat uncertain how far the peculiar
susceptibilities or resisting powers of the plaintiff may be
taken into account, particularly in cases involving mental
suffering. Certain it is that a sensitive refined spirit will
sink under brutality that a stronger soul will endure with
seeming equanimity. While there is great difficulty in
formulating a rule for both classes of cases, by the better
one the court will wait in neither case until “the anguish
of mind has eaten through the flesh,” but will grant di-
vorce wherever cruelty producing mental suffering is
likely to be persisted in to the probable injury of body or
mind.

362. Same—Misconduct of Complainant.

It is seldom, perhaps, that the party seeking a divorce
for cruelty is wholly without fault. Though the defendant
has been cruel, he may always plead and prove the legal
cruelty of the plaintiff by way of recrimination.? Even
though the misconduct of the plaintiff does not amount
to legal cruelty or other ground for divorce, still, if it
provoked or invited the misconduct of the defendant, the
remedy of the plaintiff is to reform. If the cruelty then
continues, he or she will be entitled to a divorce.? But
where the cruelty complained of is manifestly out of all
proportion to the provocation offered or the resentment

1 Westmeath v. Westmeath, 2 Hagg. Ecc. 1, 4, 4 Eng. Ecc. 238; Barnes
v. Barnes, 95 Cal. 171, 16 L. R. A. 660; David ». David, 27 Ala. 222;
Douglass v. Douglass, 81 Ia. 258; Taylor ». Taylor, 76 N. Car. 433;
Bailey v. Bailey, 97 Mass. 373; Beach v. Beach, 4 Okla. 359.

2 See post, sec. 389.

s Anthony ». Anthony, 1 Sw. & Tr. 594; Owen v. Owen, 90. Ia. 365;
Skinner v. Skinner, 5 Wis. 449; Youngs v. Youngs, 130 Ill. 230, 17 Am.
St. R. 313, 6 L. R. A. 548; Evans v. Evans, 93 Ky. 510.

22
338 DIVORCE FOR CRUELTY

shown, a divorce should be granted though the plaintiff
is somewhat in fault.?

363. Same—lInsanity of Defendant.

If the spouse whose cruelty is complained of is insane,
he should be confined and not divorced,? unless the
cruelty is practiced in a lucid interval.? But it seems that
where the cruelty proceeds from extreme jealousy or sus-
picion, though it amounts practically to an insane de-
lusion, a divorce may be granted.*

364. Peculiar Statutory Terms.

Various forms of expression are found in the statutes
authorizing divorce for cruelty, but very few of them
require an interpretation different from the simple cruelty
of the common law. Thus, ‘‘cruel and inhuman treat-
ment, endangering life,” has been held to mean cruelty as
usually defined, for whatever impairs the health endan-
gers life.’ So, ‘‘conduct impairing health or endangering
reason,” adds little or nothing to the broader definitions
of cruelty,® and the same is true of “cruel and abusive
treatment.” ”

Where the statute authorizes divorce for ‘indignities
rendering the condition of the plaintiff intolerable,” or
for “‘ excesses rendering living together insupportable,”’ it
is not necessary to show that health or reason have been

1 Westmeath v. Westmeath, supra; King v. King, 28 Ala. 315; Sie-
gelbaum v. Siegelbaum, 39 Minn. 258; Douglass ». Douglass, 81 Ia.
258.

* Hayward v. Hayward, 1 Sw. & Tr. 81; Powell ». Powell, 18 Kan.
371, 26 Am. R. 774; Sapp ». Sapp, 71 Tex. 348; Tiffany ». Tiffany,
84 Ta. 122.

3 Smith v. Smith, 40 N. J. Eq. 602.

‘Smith v. Smith, supra; Avery v. Avery, 33 Kan. 1, 52 Am. R. 523;
Scoland v. Scoland, 4 Wash. 118.

5 Cole v. Cole, 23 Ia. 433.

5 Robinson v. Robinson, 66 N. H. 600, 49 Am. St. R. 632,15 L. R. A.
121.

" Lyster v. Lyster, 111 Mass. 327; Holyoke ». Holyoke, 78 Me. 404.
DIVORCE FOR CRUELTY 339

impaired or are in jeopardy. It is enough that the mis-
conduct of the defendant has made cohabitation practi-
cally unendurable.?

The term “repeated cruelty,’ as used in the Illinois
statute, has been held to require more than one act.’

1 Rose v. Rose, 9 Ark. 507; McCartin ». McCartin, 37 Mo. App. 471;
Melvin v. Melvin, 130 Pa. 6; Cline v. Cline, 10 Oreg. 474; Tourne ».
Tourne, 9 La. 452.

2 Shordiche v. Shordiche, 115 Ill. 102; Frite v. Fritz, 138 Ill. 436,
32 Am. St. R. 156, 14 L. R. A. 685. As a single attempt to kill would
appear not to be cruelty under this statute, it was amended to em-
brace malicious attempts of that kind.
CHAPTER XXXI

CAUSES FOR DIVORCE CONTINUED—DESERTION, DRUNKEN-
NESS, NEGLECT TO PROVIDE, ETC.

365. Desertion—In General.

Desertion, or abandonment as it is sometimes called,
was not a cause for the limited divorce of the ecclesiastical
law. Its only effect under that law was to entitle the
injured party to proceed for restitution of conjugal rights,
a remedy of doubtful policy which has never been known
in this country.!. Desertion as a cause for divorce is
therefore purely statutory.”

366. Desertion as a Cause for Divorce Defined.

Desertion as a cause for divorce may be generally de-
fined as a voluntary separation of one spouse from the
other, without consent or justifying fault on the part of
the latter, intended to be permanent, and continuing such
a length of time as the statutes declare shall render it a
cause for divorce.*®

This definition is sufficiently descriptive of the offense
under nearly all of our statutes and without regard to
their varying terms, though it seems necessary to regard
their particular language in pleading.‘ Thus, “willful
desertion” is held to mean the same as desertion alone,*

1 See ante, sec. 114.

2See 1 Bish. Mar. Div. & Sep., sec. 1661. The effect of the various
separations of husband and wife, particularly as to the wife’s powers
and capacities and her right to support, has been already discussed.
See ante, secs. 318 et seq.

3See Williams v. Williams, 130 N. Y. 198, 27 Am. St. R. 517, 14
L. R. A. 220.

4See post, sec. 435.
’ Benkert v. Benkert, 32 Cal. 467.

340
DIVORCE FOR DESERTION 341

and so of ‘malicious desertion.” ! But in one case at least,
‘malicious desertion” has been held to be, not a mere in-
tentional or willful breaking off of the matrimonial cohabi-
tation, involving malice in the legal or general sense, but
malice in fact, or malice directed toward the marriage re-
lation as a specific thing.”

The term ‘‘utter desertion” has been held to require an
abnegation of all the rights and duties incident to mar-
riage.®

367. Elements of Desertion—The Intent to Desert.

Mere absence or separation for the statutory period is
not sufficient to constitute desertion. There must be an
animus non revertandi or intent on the part of the of-
fender to abandon marital cohabitation, and by many
authorities such abandonment must be intended to be
permanent.‘ In many cases the intent to desert cannot
be shown by direct evidence, but is inferred from the facts
and circumstances of the case.’ In some states at least, it
is not enough to prove that the defendant left the plaintiff
_ without adequate cause, without showing that the plain-
tiff made some reasonable effort to prevent the separation
or secure reconciliation. This is necessary, not only to
show the plaintiff’s want of consent, but the defendant’s

1 Graham v. Graham, 153 Pa. 450, and cases cited.

2 Stewart v. Stewart, 2 Swan (Tenn.), 591; McAllister ». McAllister,
10 Heisk. (Tenn.) 345.

3 Southwick ». Southwick, 97 Mass. 327, 93 Am. D. 95; Stewart ».
Stewart, 78 Me. 548, 57 Am. R. 822; Siegelbaum v. Siegelbaum, 39
Minn. 258. In Massachusetts, however, it has been found necessary
to qualify this doctrine, and a husband who has otherwise abandoned
his wife is held guilty of utter desertion though he continues her sup-
port. Magrath ». Magrath, 103 Mass. 577, 4 Am. R. 579. See Gates
v. Gates, 59 N. J. Eq. 100.

‘Lynch ». Lynch, 33 Md. 328; Fulton ». Fulton, 36 Miss. 517;
Ruckman v. Ruckman, 58 How. Pr. (N. Y. ) 278.

5 Rogers v. Rogers, 18 N. J. Eq. 445; Gregory ». Pierce, 4 Met.
(Mass.) 478; Phillips v. Phillips, 22 Wis. 256; Sweeney v. Sweeney, 62
N. J. Eq. 357. Compare Besch v. Besch, 27 Tex. 390.
342 DIVORCE FOR DESERTION

intention to desert or animus non revertandi, which are
both necessary elements in desertion.!_ This rule, how-
ever, does not apply where the evidence of willful de-
sertion is otherwise clear and the plaintiff is substantially
without fault,? or where it appears that efforts toward
reconciliation would be unavailing,? and more is naturally
expected of the husband in seeking the reconciliation and
return of an absent wife than is demanded of a wife under
similar circumstances.‘

368. Same—Must Be Without Consent of Plaintiff.

In order to constitute desertion, the separation must
be without the consent, or as some cases put it, “‘against
the will,” of the plaintiff. The former expression is
probably the more exact in most jurisdictions, for the
plaintiff may be secretly willing, or even hope that the
defendant will desert; but so long as he or she does not
expressly or by conduct signify consent, but remains
ready to discharge the duties of matrimonial cohabita-
tion, it is usually enough to render the spouse who leaves
a deserter.’ It should be remembered in this connection,
however, that failure.to seek a reconciliation where the ©
plaintiff is somewhat in fault, or the circumstances
justify a reasonable hope that reconciliation might be
effected, is tantamount to consent.® :

The chief conflict in the authorities would seem to be,

‘ Edwards ». Edwards, 69 N. J. Eq. 522; Herold v. Herold, 47 N. J.
Eq. 210, 9 L. R. A. 696; Beller v. Beller, 50 Mich. 48; Williams ».
Williams, 180 N. Y. 193, 27 Am. St. R. 517, 14 L. R. A. 220; Smithson
». Smithson, 7 Mackey (D. C.), 227; Gray v. Gray, 48 Tex. Civ. App.
348; McElhaney ». McElhaney, 125 Ia. 333; Albee ». Albee, 141 Ill.
550.

*Ford v. Ford, 148 Mass. 577; Ogilvie v. Ogilvie, 37 Oreg. 171.
Compare Wood »v. Wood, 63 N. J. Eq. 688.

’ Trail ». Trail, 32 N. J. Eq. 231; Lanier ». Lanier, 5 Heisk. (Tenn.)
462; Patterson ». Patterson, 45 Wash. 296.

4 Trail v. Trail, supra.

51 Nels. Div. & Sep., sec. 106; Ford ». Ford, 143 Mass. 577.

® See the preceding section, and cases cited.
DIVORCE FOR DESERTION 343

not so much as to what constitutes desertion, as upon the
burden of proof. If the plaintiff shows a cessation of
cohabitation or a refusal to resume it, and the defendant’s
intent to desert, he should be held to have made a prima
facie case, and the burden of proof should be upon the
defendant to show justification in the misconduct or con-
sent of the plaintiff.

369. Same—Must Be Substantial Abandonment of
Marital Duties.

In order to constitute desertion, all personal intercourse
in discharge of substantial matrimonial duties must be
abandoned by the one who deserts.' It follows, therefore,
that mere support or partial support furnished by a hus-
band who refuses all personal association of a matrimonial
character to his wife, constitutes desertion by him,?
though if the wife were the apparently deserting party,
the husband’s continued support would be evidence,
though not alone conclusive surely, that the separation
was by his consent.’

By the apparent weight of decision, the mere refusal of
sexual intercourse does not constitute desertion in law, in
spite of cogent reasons to the contrary when we regard
marriage as a union founded upon sex, having for one of
its objects the perpetuation of the race, and as the only
relation in which gratification of the sexual instinct is
legally and morally permissible.* In a number of states,
however, the refusal of sexual privileges persisted in for

1 Anon., 52 N. J. Eq. 349; Watson ». Watson (N. J. Eq., 1894), 28
Atl. 467; Pfannebecker ». Pfannebecker, 133 Ia. 425, 119 Am. St. R.
609.

2 Magrath ». Magrath, 103 Mass. 577, 4 Am. R. 579.

3 Goldbeck v. Goldbeck, 18 N. J. Eg. 42. See also Sargent ».
Sargent, 36 N. J. Eq. 644.

4 Pfannebecker v. Pfannebecker, supra; Fritz v. Fritz, 138 Ill. 436, 32
Am. St. R. 156, 14 L. R. A. 685; Southwick ». Southwick, 97 Mass. 327,
93 Am. D. 95; Magrath ». Magrath, supra; Stewart v. Stewart, 78 Me.
548, 57 Am. R. 822; Eschbach v. Eschbach, 23 Pa. 343; Anon., supra.
As to whether such refusal constitutes cruelty see ante, sec. 358.
344 DIVORCE FOR DESERTION

the statutory time, without reasonable justification or
excuse, has been said to constitute desertion, though there
is no abandonment of other substantial marital duties by
the defendant.

But it is certainly not necessary that the deserting
party shall in all cases abandon the same house or force
the other out of it, for were this true a spouse who retired
to his or her own corner of the home and lived there a
virtual stranger to the other could not be deemed a
deserter.?

370. Same—One Party Driven Out.

One who is driven out within the meaning of the law
does not desert, but is deserted.* Physical compulsion is,
of course, adequate to this end,* and so, no doubt, would be
the serious declaration of the husband that his wife must
leave the common home.’ Moral compulsion, however
falling short of cruelty or other ground for absolute or
limited divorce, is not usually sufficient.®

371. Same—Change of Domicile—Wife Refusing to
Follow Husband. -

It is the right of the husband to fix the family domicile,
and it is the duty of the wife to follow him when he
changes it, subject to exceptions elsewhere stated. When-

See Fink v. Fink, 137 Cal. 559; Evans v. Evans, 93 Ky. 510; Whit-
field ». Whitfield, 89 Ga. 471; Heermance v. James, 47 Barb. (N. Y.)
120; Rie ». Rie, 34 Ark. 37; and see the elaborate argument in 1 Bish.
Mar. Div. & Sep., secs. 1676 et seq., in favor of this view.

*Stein v. Stein, 5 Col. 55; Van Arsdalen v. Van Arsdalen, 30 N. J.
Eq. 359; Graves v. Graves, 88 Miss. 677; Whitfield ». Whitfield, supra;
Evans v. Evans, supra.

3 Setzer ». Setzer, 128 N. Car. 170, 83 Am. St. R. 666.

* Warner v. Warner, 54 Mich. 492; Grove’s Appeal, 37 Pa. 443.

5 Harding v. Harding, 22 Md. 337.

® Millner v. Millner, Wright (Ohio), 188; Van Dyke ». Van Dyke,
135 Pa. 459; Lynch v. Lynch, 33 Md. 328; Alkire ». Alkire, 33 W. Va.
459. See, as to the rules in Massachusetts, Padelford v. Padelford,
159 Mass. 281. See also Stiles v. Stiles, 52 N. J. Eq. 446; MeVickar ».
MeVickar, 46 N. J. Eq. 490, 19 Am. St. R. 422.
DIVORCE FOR DESERTION 345

ever it is the legal duty of the wife to accompany or follow
the husband to a new domicile, her refusal to do so will
amount to desertion, provided the husband desires her
to do so and his wishes are made known.!

372. Same—Time and Continuity of Desertion—How
Broken or Interrupted.

Desertion to authorize divorce must continue for the
statutory period, which is computed from the time when
the intent to desert is formed, though the separation
takes place earlier.”

Furthermore, if the deserting party offers to return be-
fore the statutory time has expired, and the other refuses
to resume cohabitation, the latter and not the former is
thereafter deemed a deserter.? But the offer to return
must be made in good faith for the purpose of effecting a
reconciliation, and not for the purpose of gaining advan-
tage in a pending suit, or of preventing the plaintiff from
acquiring a cause of action. This same rule applies where
the parties are apart by mutual consent, or were guilty of
mutual faults of such character that had one party alone
offended, the other would be entitled to divorce.®

1 Franklin v. Franklin, 190 Mass. 349, 4 L. R. A. (N. S.) 145; Vos-
burg v. Vosburg, 136 Cal. 195; ante, sec. 117, and cases cited. The
neglect of the husband to furnish the wife with necessary means to
travel to him would no doubt prevent her from being deemed a de-
serter, though he had desired her to come to him, unless she had, by
words or conduct, indicated that such a step would be fruitless. See
James v. James, 58 N. H. 266.

2 Conger v. Conger, 13 N. J. Eq. 286; Pinkard ». Pinkerd, 14 Tex.
356, 65 Am. Dec. 129; Holston ». Holston; 23 Ala. 777. Where,
though desertion has taken place, but before it has continued the
statutory time, the deserter becomes insane, the time of such insanity
cannot be regarded as part of the statutory period of desertion. Kirk-
patrick v. Kirkpatrick, 81 Neb. 627, 129 Am. St. R. 708, 16 L. R. A.
(N. S.) 1071, and note. Compare Douglass ». Douglass, 31 Ia. 421.

31 Nels. Div. & Sep., sec. 73; Ogilvie v. Ogilvie, 37 Oreg. 171; Mc-
Clurg’s Appeal, 66 Pa. 366; Prather v. Prather, 26 Kan. 273.

‘Prather v. Prather, supra; Jenkins ». Jenkins, 104 Ill. 134; Fishli
v. Fishli, 2 Litt. (Ky.) 337.

5 Danforth ». Danforth, 88 Me. 120, 51 Am. St. R. 380, 31 L. R. A.
346 DIVORCE FOR DESERTION

But where the deserter is guilty of some other wrong
warranting divorce, as cruelty or adultery, the injured
spouse is not affected by an offer of return, for he is not
bound to condone the latter offense, but may wait until
the statutory period has expired and obtain a divorce for
desertion rather than upon the other or more scandalous
grounds.!

That forgiveness must be free from unreasonable con-
ditions or requirements, as that the wife shall be per-
mitted to locate the family home,? or determine who shall
live therein.®

If desertion has continued the statutory time so that
the plaintiff has a perfect cause of action, a subsequent
offer of the defendant to return will have no effect, unless
it is actually accepted by the plaintiff, when, of course, it
amounts to condonation.*

Not only does an offer in good faith to return break the
continuity of the desertion, but words and conduct on the
part of the one deserted indicating that such an offer
would be rejected if made, will have the same effect.
Upon this principle it has been held that where the wife
deserted, and before the statutory time had expired the
husband sued for divorce on the ground of adultery, she
could not be deemed a deserter so long as his action was
pending.’ As the desertion must be continuous during

608; Bradley v. Bradley, 160 Mass. 258; Fulton ». Fulton, 36 Miss.
517; Poor-v. Poor, 8 N. H. 307, 29 Am. D. 664.

1 Sargent v. Sargent, 36 N. J. Eq. 644; Smith ». Smith, 55 N. J. Eq.
222.

2 See ante, sec. 117.

* Jones ». Jones, 55 Mo. Appeal, 523. See further, on this point,
Thomas v. Thomas, 152 Ill. 577; Grant ». Grant, 64 Minn. 234; Elliot
v. Elliot, 48 N. J. Eq. 231.

‘ Helser v. Helser, Wright (Ohio), 210; Benkert v. Benkert, 32 Cal.
467.

‘Ford v. Ford, 143 Mass. 577. Where the wife is in fact guilty of
adultery, it was held that the bringing of an action on that ground
did not interrupt the continuity of her desertion. Wagner ». Wagner,
39 Minn. 394,
‘DIVORCE FOR DRUNKENNESS 347

the entire statutory period, if the parties voluntarily re-
sume cohabitation before it has expired this amounts to
condonation, the continuity of the desertion is broken,
and the period of a subsequent desertion cannot be tacked
to that of the prior one to make out the statutory time.!
There must, however, be a substantial resumption of co-
habitation under circumstances that show an intent of the
deserter to again discharge the duties of matrimony.?

HABITUAL DRUNKENNESS

373. What Constitutes.

The terms habitual drunkenness, confirmed drunken-
ness, habitual intemperance, habitual intoxication, and
similar phrases, are all held to have substantially the same
legal meaning in divorce statutes. They refer exclusively
to the excessive use of alcoholic liquors, and not to a like
use of opiates or other drugs.®

Habitual drunkenness signifies something more than
mere ordinary indulgence in intoxicating liquors; it im-
ports a fixed habit of excessive indulgence.* Beyond this
it is almost impossible to describe what may be called
habitual drunkenness. Certainly one who occasionally
becomes intoxicated is not necessarily, or even usually,

1 Gaillard v. Gaillard, 23 Miss. 152; Holmes v. Holmes, 44 Mich.
555; Phelan v. Phelan, 135 Il. 445; Burk v. Burk, 21 W. Va. 445.

2 Rie v. Rie, 34 Ark. 37; Kennedy », Kennedy, 87 Ill. 250. The mere
fact that the husband slept with the wife a few nights on one occasion,
held not to break the continuity of the desertion where she continu-
ously and obstinately refused to return during the statutory period.
Danforth v. Danforth, 88 Me. 120, 51 Am. St. R. 380, 31 L. R. A. 608. -
See also Kennedy v. Kennedy, 87 IIl. 250.

3 Young v. Young, 130 Ill. 230, 17 Am. St. R. 313, 6 L. R. A. 548;
Com. ». Whitney, 11 Cush. (Mass.) 277. In several states statutes
authorize divorce for the voluntary and excessive use of opium and
other drugs. See Mass. Rev. Laws (1902), 1352, 1353.

4 Gourlay ». Gourlay, 16 R. I. 705; McBee v. McBee, 22 Oreg 329,
29 Am. St. R. 613; Meathie ». Meathie, 83 Mich. 150; Blaney 2.
Blaney, 126 Mass. 205; Dennis v. Dennis, 68 Conn. 186, 57 Am. St.
R. 95, 34 L. R. A. 449, and note.
348 DIVORCE FOR DRUNKENNESS

an habitual drunkard; and one may be an habitual
drunkard though he has intervals of entire sobriety or
even abstinence.! It is the habit that is said to constitute
the dereliction, and frequently recurring drunkenness
proves it; 2 or perhaps the extent, duration and effect of
the intoxication should be decisive under divorce statutes.
Thus, where the husband had three or four sprees a year
lasting a week or ten days for a period of twelve or fifteen
years, which resulted in his going or being sent to an
inebriate asylum, it was held ground for divorce.* Drunk-
enness to warrant divorce need not necessarily disqualify
for business during business hours, for the statutes go
upon the unfitness of the drunkard for the moral and do-
mestic duties which marriage implies.‘

In some states it is expressly provided that the habit
must be acquired after marriage to authorize a divorce.®

In most states the drunkenness must continue a certain
time, when it must be proved to have continued as a habit
during that time; ® otherwise proof of a fixed habit is all
that is required, provided it continues until suit is brought.’

1 Page v. Page, 43 Wash. 293, 6 L. R. A. (N. 8.) 914, 117 Am. St. R.
1054; Walton ». Walton, 34 Kan. 195; McBee ». McBee, 22 Oreg. 329,
29 Am. St. R. 613; Dennis v. Dennis, supra, and note thereto in 34
L. R. A. 449.

*Golding ». Golding, 6 Mo. App. 602; Richards ». Richards, 19
Bradw. 465.

’ Blaney v. Blaney, 126 Mass. 205. This was obviously a case of
what medical men term dipsomania. Compare Acker v. Acker, 22
App. D. C. 353.

«Mahone v. Mahone, 19 Cal. 626, 81 Am. D. 91; McGill ». McGill,
19 Fla. 341; Page v. Page, 43 Wash. 293, 6 L. R. A. (N. 8.) 914, 117
Am. St. R. 1054; Dennis ». Dennis, 68 Conn. 186, 34 L. R. A. 449, 57
Am. St. R. 95.

5 Lewis v. Lewis, 75 Ia. 200; Lyster v. Lyster, 111 Mass. 327. “Shall
have become an habitual drunkard,” was so interpreted in Porritt ».
Porritt, 16 Mich. 140, at least unless concealed from the plaintiff prior
to marriage.

*Dunn »v. Dunn, 62 Cal. 176; Reynolds ». Reynolds, 44 Minn. 132.

"Gourlay ». Gourlay, 16 R. I. 706; Moore ». Moore, 41 Mo. App.
176.
DIVORCE FOR NON-SUPPORT 349

Whether a divorce will be granted on the ground of
habitual drunkenness to a wife who married with knowl-
edge of her husband’s intemperance, has been differently
decided.?

374. Same—Coupled with Wasting of Estate.

Under a statute providing that ‘‘drunkenness without
suitable provision for maintenance of wife and children
accompanied with wasting of the estate,’ should warrant
divorce, the term estate was given a broader meaning
than property, and was held to mean physical and mental
ability to labor for support of family and self.?

NEGLECT TO PROVIDE

375. In General.

Mere failure by the husband to provide for the wife or
her children is not of itself a ground for divorce, though it
may, in connection with other circumstances, constitute
cruelty. Statutes in several states, however, make the
husband’s failure to support the wife an independent
ground for divorce, unless, of course, she has forfeited her
right to maintenance under rules already laid down.‘

376. Time and Extent of Neglect.

When simple neglect to provide for or support the wife
is made a cause of action without any time being specified,
it is immaterial how long the neglect has continued, if it
fairly appears that the husband has substantially and
intentionally abandoned his conjugal duty in this regard.5
In most states, however, the failure to support must have

1Compare Tilton v. Tilton, 16.Ky. L. 538, and Walker ». Walker,
77 L. T. 715.

2 McKay v. McKay, 18 B. Monr. (Ky.) 8; Shuck ». Shuck, 70 Ky.
306.

* See Maddox »v. Maddox, 189 II]. 152, 82 Am. St. R. 431, 52 L. R. A.
628. Compare ante, sec. 357.

4See ante, sec. 122.

* See Varney v. Varney, 58 Wis. 19.
350 DIVORCE FOR NON-SUPPORT

continued some definite time. The neglect of the husband
must be a plain and palpable neglect to furnish such sup-
port as is reasonable in view of his abilities and the social
standing of the parties.!

377. Husband Must Be Able.

Whatever the form of the statute, the husband’s ability
to provide must be shown, for the legislature could not be
held to create a duty or to penalize its neglect where the
husband was incapable of its performance.? It has been
held that ability means capacity to support the wife from
present property or income.* By the weight of authority,
however, a husband who has both the ability and op-
portunity to labor and support his wife may be guilty of
non-support irrespective of his disposition to labor or his
possession of means or income.‘

378. Under Peculiar Statutes.

Under a Vermont statute requiring pecuniary ability,
it was held that present means as distinguished from earn-
ing ability was the test.5 Under a statute requiring the
neglect to support to be ‘‘gross, wanton and cruel’’ dur-
ing a period of years, a neglect to provide for a wife who
has fairly provided for herself, even by her own labor, is
not within the statute.®

‘See Runkle v. Runkle, 96 Mich. 493; Whitacre v. Whitacre, 64
Mich. 232; Owen v. Owen, 48 Mo. App. 208; Weishaupt ». Weishaupt,
27 Wis. 621; Farnsworth ». Farnsworth, 58 Vt. 555; Thompson 2.
Thompson, 79 Me. 286.

? Harteau v. Harteau, 14 Pick. (Mass.) 181, 25 Am. D. 372; Ham-
mond ». Hammond, 15 R. I. 40, 2 Am. St. R. 867: Baker ». Baker, 82
Ind. 146.

*F. . F., 1 N. H. 198; Washburn ». Washburn, 9 Cal. 475.

‘James v. James, 58 N. H. 266; State v. Witham, 70 Wis. 473.

5See Farnsworth ». Farnsworth, 58 Vt. 555; Jewett v. Jewett, 61
Vt. 370; Stat. of Vt., 1894, sec. 2674.

* Lillie ». Lillie, 65 Vt. 109; Peabody ». Peabody, 104 Mass. 195;
Runkle ». Runkle, 96 Mich. 493; Holt v, Holt, 117 Mass, 202, See
also Cram v. Cram, 6 N, H. 87,
MISCELLANEOUS CAUSES FOR DIVORCE 351

379. Wife’s Needs and Abilities.

By the better opinion, the fact that the wife is compelled
to labor for her own support is direct proof of the neglect
of a duty enjoined by the common law, which statutes,
except as above, have modified either not at all or only to
an inconsiderable extent.!

In the community states where the earnings of husband
and wife go into a common fund from which the wife
receives adequate support, it seems that no divorce will
be granted, though the husband contributes little or
nothing thereto.’

OTHER CAUSES FOR DIVORCE

380. Antenuptial Unchastity or Pregnancy.

We have seen that courts will annul a marriage on the
ground of fraud where the woman conceals her ante-
nuptial pregnancy by another than the husband, unless
the latter has been incontinent with her before marriage.®
Statutes in some states have made it a ground for nullity
or divorce, however, that the wife at the time of marriage
was pregnant by a stranger, regardless of mutual ante-
nuptial incontinence. But it is held under these statutes
that where the child is born but a few months after mar-
riage, there must be satisfactory proof that the husband
had not had intercourse with her within such time that
he might be its father. Whether the wife must have
known of her pregnancy at the time of marriage seems not
to have been decided. In one state antenuptial incon-
tinence by the wife unknown to the husband at marriage
is ground for a decree, and in one other state (Maryland),
he may have a decree where, without his knowledge, she
had been a prostitute, and in another he may have a
decree where she was notoriously a prostitute, unknown

1 Weishaupt v. Weishaupt, 27 Wis. 621; Keeler v. Keeler, 24 Wis. 522.

? Rycraft v. Rycraft, 42 Cal. 444.

3See ante, sec. 70.

4 McCullough ». McCullough, 69 Tex. 682, 5 Am. St. R. 96; Wallace
v. Wallace, 137 Ia. 37, 126 Am. St. R. 253, 14 L. R, A. (N. 8.) 544.
352 MISCELLANEOUS CAUSES FOR DIVORCE

to him at the time of marriage, or she may have a decree
where he, unknown to her, was a notoriously licentious

person.

381. Divorce Obtained in Another State.

At least three states authorize divorce where the de-
fendant has obtained a divorce in another state.? This is
not necessarily for the purpose of dissolving the marriage
tie, for the courts of these states ordinarily deem the
sister state decree sufficient for that purpose, but as a
basis for the determination of the property rights of the
parties and the custody of their children.*

382. Causes Analogous to Desertion, or Arising out of
Separation.

In a few states voluntary separation for a specified
period is cause for divorce at the suit of either party.
The separation must be by mutual consent, however, for
if one party deserts, he or she cannot have a divorce,
though the other party may usually have a decree on the
ground of such desertion. Under these statutes the
separation must, it seems, continue mutually voluntary
during the entire statutory period.

In some states, if either party unites with the Shakers
or other sect that professes to believe that the marriage
relation or cohabitation therein is immoral or contrary to
the law of their religion, the other party may have a
divorce. The principle underlying these statutes is
similar to that which applies to desertion, and one who
has joined such a sect may withdraw and offer in good
faith to resume cohabitation, whereupon the refusal of
the other spouse to cohabit will constitute desertion.®

1 W. Va. Code (1899), 661, sec. 5.

2 Michigan, Florida and Ohio.

*See Cox ». Cox, 19 Ohio, 502; Wright ». Wright, 24 Mich. 180;
Van Inwagen v. Van Inwagen, 86 Mich. 333.

‘Sanders ». Sanders, 135 Wis. 613; Williams v. Williams, 122 Wis.
27, and cases cited; Jakubke v. Jakubke, 125 Wis. 635.

5 Fitts v. Fitts, 46 N. H. 184; Dyer ». Dyer, 5 N. H. 271.
MISCELLANEOUS CAUSES FOR DIVORCE 353

So, in a few states, if one of the parties is ‘‘absent and
unheard of” for a specified length of time the other spouse
may have a divorce. It is not enough, however, that the
absentee should not be heard from in the sense that he
has not communicated in some personal way with the
spouse who is left behind or others; he must not have
been heard of.!

383. Same—Conviction of Crime—Imprisonment.

It is provided in at least two states that when either
party shall be sentenced to imprisonment for life, the
marriage shall be dissolved without judgment of divorce
or other legal process, and no pardon granted to the
party so sentenced shall restore such party to his.or her
conjugal rights.2. This provision has been held constitu-
tional and valid and the marriage dissolved though the
sentence was reversed for error at the trial. The same
effect seems to flow from provisions in a few other states
declaring the convicted party civilly dead, though a dis-
tinction is apparently made between his goods and his
family, the former being unaffected.‘ In several states
it is provided that the imprisonment of either party, or
imprisonment in the state’s prison,® or imprisonment for
a felony, or imprisonment for an infamous crime, usually
for some specified time, shall warrant divorce.’ It has
been held under such statutes that divorce may be granted

“

1 Fellows, Fellows, 8 N. H. 160. See also Trubee ». Trubee, 41
Conn. 36.

2 Rev. Stat. Wis. (1898), sec. 2355; 2 How. Stat. (Mich.), 1882,
title 23, sec. 6227.

3See State v. Duket, 90 Wis. 272, 48 Am. St. R. 928, and note
thereto in 31 L. R. A. 515.

4See Avery v. Everett, 110 N. Y. 332, 6 Am. St. R. 368, 1 L. R. A.
264; In re Deming, 10 Johns. (N. Y.) 232. See also post, sec. 701.

5 Where this language is used it is held to mean the local and not
some other state prison. Leonard v. Leonard, 151 Mass. 151, 21 Am.
St. R. 437, 6 L. R. A. 632.

® These statutes are reviewed in note to State v. Duket, in 31 L.
R. A. 515.

23 sands yee ate
354 MISCELLANEOUS CAUSES FOR DIVORCE

after conviction and before the time for appeal has ex-
pired.! It has been held, however, that a woman who
married a criminal pending his appeal could not have a
divorce on the ground of his conviction, which was
affirmed.?

384. Causes Analogous to Cruelty.

Gross neglect of duty is in some states a cause for di-
vorce. But this signifies something rather different from
simple desertion, unless it is coupled with a failure to
support or with indignities of some sort.’ ‘‘Indignities
rendering the condition of the complainant intolerable”
seems to be, as one writer says, ‘‘a broad but vague defini-
tion of cruelty.”’ Whatever would constitute cruelty as
elsewhere defined would doubtless give a cause of action
under this head, and less would often suffice.‘

“Conduct rendering cohabitation unsafe and im-
proper” is probably nothing more nor less than cruelty,
and the statute is satisfied by misconduct which tends to
endanger life or impair health. Habitual indulgence in
violent and ungovernable temper means something more
than a spiteful and intentional neglect of marital duties.®
There must be an element of violence directed toward the
complainant.’

1 Cone v. Cone, 58 N. H. 152. See State ». Duket, supra. Contra,
Rivers ». Rivers, 60 Ia. 378, and 65 Id. 568. Pardon after,conviction
and sentence of the husband for the time prescribed by statute is held
not to deprive the wife of her right to divorce. Holloway ». Holloway,
126 Ga. 459, 115 Am. St. R. 102, 7 L. R. A. (N. 8.) 274. As to com-
mutation of sentence, see Young v. Young, 61 Tex. 191.

2 Caswell ». Caswell, 64 Vt. 557, 33 Am. St. R. 943.

*Smith v. Smith, 22 Kan. 699. See also Leach v. Leach, 46 Kan.
724; Osterhout v. Osterhout, 30 Kan. 746; Thorp ». Thorp, Wright
(Ohio), 763.

“4See 1 Nels. Div. & Sep., sec. 390.

*See McBride ». McBride, 5 N. Y. Supp. 388, 9 N. Y. Supp. 827,
119 N. Y. 519.

* Crawford v. Crawford, 17 Fla. 180.

1 Phelan v. Phelan, 12 Fla. 449.
MISCELLANEOUS CAUSES FOR DIVORCE 355

385. Divorce in Discretion of Court.

At the present time, divorce in the discretion of the
court appears to exist in but a single state, where it is
provided that in addition to other and specific causes, a
divorce may be granted for any other cause deemed by
the court sufficient, and the court shall be satisfied that
the parties can no longer live together.! Even here the
discretion is doubtless a judicial one and is consequently
subject to review in case of manifest abuse.

386. Insanity as Ground for Divorce.

Insanity of either party existing at the time of marriage
has already been considered as a ground for treating or
declaring it null and void.? Postnuptial insanity, how-
ever, is not a ground for divorce unless statutes, as in a
few states, so expressly declare.? In Arkansas a divorce
may be granted where either party shall, subsequent to
marriage, have become permanently or incurably insane.‘
In Washington the court may, in its discretion, grant a
divorce where chronic mania or dementia of either party
has existed for more than ten years.®

That such statutes are so few is probably due in part to
the prevalent sentiment that marriage is a sacrament,
and partly to the feeling that divorce against the afflicted
party would exhibit the double injustice of adding to a
natural calamity the judicial one of loss of domestic ties
without moral dereliction. Religious dogma aside, how-
ever, it is clear that the equities are even. Is there any
justice in chaining one party to another who has become
an incurable imbecile or maniac, perhaps at the very

1 Ballinger’s Codes & Stat. (Wash.) sec. 5716; Scoland v. Scoland,
4 Wash. St. 118. See, however, Rev. Stat. Wis., 1898, sec. 2357.

2 See ante, secs. 42 et seq.

3 Hamaker ». Hamaker, 18 Ill. 137, 65 Am. D. 705, 708, note.

4 Ark. Civ. Code, sec. 464.

5 Wash. Stat., sec. 5716; Hickman v. Hickman, 1 Wash. 257, 22 Am.
St. R. 148. See also recent statutes in Pennsylvania, California,
Florida, Idaho, Indian Territory, and perhaps one or two other states.
See Hicks ». Hicks, 79 Wis. 465.
356 MISCELLANEOUS CAUSES FOR DIVORCE

threshold of the marriage state? Furthermore, marriage
is not a mere contract, but a status in which the public
has an interest, and which the state has a constitutional
right to police in the interest of posterity.

Statutes of this kind should be carefully framed, and
‘should embody almost more than ample safeguards as to
medical proof, and for all substantial interests of the in-
sane party and the children of the marriage.’ |

1The uniform divorce act proposed by the National Divorce Con-
gress of 1906, makes hopeless insanity of the husband a ground for
limited divorce in favor of the wife. Why not for absolute divorce,
and why nat where the wife is insane? If the wife’s insanity is often
the result of the strain of childbearing, as has been argued, that of the
husband is perhaps as often the result of the anxious struggle to pro-
vide a living and a competence for his family. Does not preclusion
of the husband from divorce and remarriage tend to leave the children
of the hopelessly insane wife without the care and ministrations of a
foster mother?
CHAPTER XXXII

DEFENSES PECULIAR TO DIVORCE ACTIONS

387. In General.

The defenses here discussed are those that are wholly,
or in a great measure, peculiar to divorce suits. They
may be enumerated and briefly described as follows:

1. Recrimination, which is a countercharge of matri-
monial misconduct.!

2. Condonation, which implies forgiveness of a matri-
monial offense upon the condition of future good conduct.”

3. Connivance, which involves consent to such wrong-
doing as would otherwise warrant divorce.®

4. Collusion, which involves fraud upon the public
and the court.*

5. Delay and insincerity, which involve laches and actual
or probable want of substantial injury.®

388. Recrimination—Definition and Nature.

Recrimination is the defense that the plaintiff should
not be allowed a divorce because he or she has also been
guilty of an offense which, the defendant being innocent,
would be ground for divorce in the defendant’s favor.
This doctrine was recognized by the ecclesiastical courts
of England, whence it has been adopted in terms or by
construction into our own law, a matter elsewhere ex-
plained. Not only this, but it is consonant with those

1 See post, sec. 388.
2 See post, sec. 391.
3 See post, sec. 396.
4 See post, sec. 401.
5 See post, sec. 405.
6 See ante, sec. 332.

357
3858 RECRIMINATION

general principles of justice which pervade all enlightened
legal systems, which forbid a person to complain of wrong
who is himself guilty of wrong touching the same matter,
and require suitors to come into court ‘with clean hands.” 3

389. The Nature and Time of the Recriminatory Of-
fense—Rule Where Offense Condoned.

By the ecclesiastical law, though adultery and cruelty
were both causes for divorce, it was settled that cruelty,
being the lesser offense, could not be set off against
adultery, though adultery was a bar as against cruelty
or adultery,? and cruelty was probably a bar as against
cruelty merely. While the views of the English ecclesi-
astical courts have found favor in some American tri-
bunals,’? by the great weight of authority with us, where
several offenses are made equally grounds for divorce,
any one of them may be pleaded and proved as recrimi-
natory of any other of them without regard to their
differing natures. This is certainly true where the offense
pleaded by way of recrimination is a cause for absolute
divorce, whether limited or absolute divorce be sought.*
In some states, however, peculiar statutory provisions
have more or less influenced the law.5

A matrimonial offense that has been condoned cannot,
by the weight of authority, be used in recrimination by

‘Beeby v. Beeby, 1 Hagg. Ecc. 789; Mattox v. Mattox, 2 Ohio, 233,
15 Am. D. 547; Tillison ». Tillison, 63 Vt. 411.

2 Drummond v. Drummond, 3 Sw. & Tr. 272; Chambers ». Cham-
bers, 1 Hagg. Con. 445; Otway v. Otway, L. R. 13 P. D. 141.

3 Bast v. Bast, 82 Il]. 585; Richardson v. Richardson, 4 Port. (Ala.)
467, 30 Am. D. 538.

41 Bish. Mar. Div. & Sep., secs. 364 et seq.; 1 Nels. Div. & Sep.,
sec. 431; Clapp ». Clapp, 97 Mass. 531; Handy v. Handy, 124 Mass. 394;
Pease v. Pease, 72 Wis. 136; Hubbard v. Hubbard, 74 Wis. 650, 6 L.R. A.
58; Tillison v. Tillison, supra; Church ». Church, 16 R. I. 667, 7 L. R.
A. 385; Reed v. Reed, 21 N. J. Eq. 331; Conant v. Conant, 10 Cal. 249,
70 Am. D. 717; Decker ». Decker, 193 Ill. 285, 86 Am. St. R. 325,
55 L. R. A. 697; Evans v. Evans, 93 Ky. 510; and see post, next sec.

5 See Buerfening v. Buerfening, 23 Minn. 563; Restine ». Restine, 4
Rawle (Pa.), 460.
CONDONATION 359

the one who condoned it and subsequently violated his
or her marriage vows.! It has apparently been held,
however, in a recent case that where a divorce has been
denied because both parties were previously guilty of
adultery, a later suit based upon the subsequent adultery
of one of them should be dismissed.?

390. Same—Cause for Limited Divorce as Recrimi-
natory of Cause for Dissolution.

Whether a defendant sued for absolute divorce may
plead a cause for limited divorce by way of recrimination
is uncertain. By what seems the better opinion, such a
plea should be sustained.* Clearly a cause for limited
divorce can be set up against any other cause for judicial
separation.

CONDONATION

391. Definition and Nature.

Condonation may be generally defined as the volun-
tary act of one spouse in forgiving conduct affording
ground for divorce, on condition that the offender will
be kind and faithful in the future.* It requires something
more than mere formal forgiveness, for though the in-
jured party says that the offense is forgiven, yet refuses
to receive back the guilty one on the footing of a husband
or wife, it is doubtful if this would be construed as con-
donation.’ And doubtless the forgiveness must be ac-
cepted, for it can hardly be supposed that an offer of

1Cummings v. Cummings, 135 Mass. 386, 46 Am. R. 476; Masten
v. Masten, 15 N. H. 159; Stiehr v. Stiehr, 145 Mich. 297.

2 Fisher v. Fisher, 95 Md. 315, criticized in note to 93 Am. St. R. 338.

22 Bish. Mar. Div. & Sep., sec. 389; Reading v. Reading (N. J.,
1886), 5 Atl. Rep. 721, 4 Cent. R. 134; Van Bentheusen v. Van Ben-
theusen, 2 N. Y. Supp. 238. But compare 1 Nels. Div. & Sep., sec. 434.

4 For other definitions, see 2 Bish. Mar. Sep. & Div., sec. 269; 1 Nels.
Div. & Sep., sec. 450; Keats v. Keats, 1 Sw. & Tr. 334; Blandford ».
Blandford, 8 Prob. Div. 19.

5 See Sewall ». Sewall, 122 Mass. 156, 23 Am. R. 299; Keats ».
Keats, supra.
360 CONDONATION

forgiveriess, however made, could be pleaded as condona-
tion by an obdurate and stubborn offender.t Such ques-
tions, however, seldom arise, as there is usually proof of
something beyond mere words from which the forgive-
ness and its acceptance can be implied. Voluntary co-
habitation with knowledge of the offense is the circum-
stance from which condonation is usually, though not
necessarily, implied as will be shown in the next section.

392. Must Be Voluntary—Cohabitation as Condona-
tion.

Condonation must be voluntary. Whether it is ex-
pressed or is implied from cohabitation, it must not be
the result of force or fear, or in the case of the wife at
least, of inability to promptly quit the common home,
or even to escape from the marriage bed.? The tempo-
rary submission of the wife, therefore, even to the sexual
embraces of her guilty husband does not of necessity im-
ply condonation. Regard must be had to the circum-
stances of the case; though if such submission appears to
have been voluntary and willing, condonation could
hardly be denied,’ and, if the wife is away from the hus-
band and beyond his reach, condonation would be im-
plied from her return to him with knowledge of his guilt.‘
But the case of the husband is somewhat different.
Whatever would be condonation in the wife would doubt-
less always be so in him; but if he has marital intercourse
with her with knowledge of her wrong, it is deemed con-
doned, at least if he already has adequate proofs.> But

1 Ferrers v. Ferrers, 1 Hagg. Con. 781, 3 Eng. Ecc. 363; Quarles v.
Quarles, 19 Ala. 363; Armstrong v. Armstrong, 27 Ind. 186. See,
however, Christianberry v. Christianberry, 3 Blackf. 202, 25 Am. D. 96.

* Beeby v. Beeby, 1 Hagg. Ecc. 789; D’Agular ». D’Agular, 1 Hagg.
Ecce. 773, 3 Eng. Ecc. 329; Wilson v. Wilson, 16 R. I. 122.

3 D’Agular ». D’Agular, supra; Horne ». Horne, 72 N. Car. 531;
Kirkwall v. Kirkwall, 2 Hagg. Con. 277, 4 Eng. Ecc. 541.

4 D’Agular v. D’Agular, supra.

* Beeby v. Beeby, 1 Hagg. Ecc. 786, 1 Eng. Ecc. 338; Quincey ».
CONDONATION 361

even an injured husband may not be bound to turn his
guilty wife away instanter upon learning of her adultery.
He may allow her “‘the shelter of his roof, but not the
solace of his bed,” at least until she can find another
refuge, or until even he, if willing to concede so much to
her helplessness and the memory of happier days, can
provide her a shelter elsewhere.

393. Same—Knowledge of Offense and Ability to
Make Proof.

Not only must the forgiveness be voluntary, but it
must ordinarily be made with full knowledge of the of-
fense.1 But where the injured party, knowing part,
evinces an intention to forgive all the past without in-
quiry the condonation is sufficient as to all prior offenses,
at least of the same class.2 Though one may be morally
convinced that an offense warranting divorce has been
committed, the proofs may not yet be available. To
break off the cohabitation under these circumstances, or
even to refuse intercourse, might so arouse the suspicions
of the guilty party as to make them unattainable. Even
the husband is not open to the defense of condonation
because, in the interval between his knowledge or sus-
picion of the wrong and the discovery of evidence, or the
means of obtaining it, he continues matrimonial cohabita-
tion and intercourse.? And it is clear from this that
continuing cohabitation before suspicion of adultery has
ripened into conviction is not condonation, unless the facts

Quincey, 60 Ind. 259; Hoffman v. Hoffman, 46 N. Y. 30, 7 Am. R. 299;
Kennedy »v. Kennedy, 87 Ill. 250.

1 Brown v. Brown, L. R. 7 Eq. 185; Morrison v. Morrison, 142 Mass.
361, 56 Am. R. 688; Alexandre v. Alexandre, 2 P. & M. 164; Shackelton
». Shackelton, 48 N. J. Eq. 364, 27 Am. St. R. 478.

2 Keats v. Keats, 1 Sw. & Tr. 334; Rogers v. Rogers, 122 Mass. 423;
Moorhouse v. Moorhouse, 90 Ill. App. 401.

8 Dillon v. Dillon, 3 Curt. Ecc. 86, 7 Eng. Ecc. 377; Elwes v. Elwes,
1 Hagg. Con. 269; Quincey v. Quincey, 10 N. H. 272; Uhilman v. Uhlman,
17 Abb. N. Cas. 236; Graham ». Graham, 50 N. J. Eq. 701; Shackelton
v. Shackelton, supra.
362 CONDONATION

were such as to show willful blindness, indifference, or
actual consent.?

394. Condonation of Cruelty.

Cruelty has been described as a cumulative offense, or
in other words, as “‘the last drop that makes the cup of
bitterness overflow.” 2 It seldom consists of a single
abusive act, but rather of a series of acts or course of
conduct to which each successive act gives deeper color.
Hence condonation of cruelty, especially by the wife, is
not to be readily predicted upon continued cohabitation,
or from her patient endurance, though it will usually be
inferred where cohabitation continues voluntary on her
part long after the last act of cruelty took place.*

395. Condonation Conditional—New Offense Revives
Old—Nature of New Offense.

All condonation is upon the implied condition, not
only that the offending party shall not thereafter re-
peat the offense, but that he shall treat the other spouse
with conjugal kindness.‘ Hence, in spite of some con-
flict in the authorities, it is now generally held that any
cause for divorce will revive any other cause for divorce,
and this is true though the condoned offense was ground
for absolute divorce and the new one for limited divorce
only.®

1 Bramwell v. Bramwell, 3 Hagg. Ecc. 618, 5 Eng. Ecc. 232; Dillon
v. Dillon, 3 Curt. Ecc. 86, 7 Eng. Ecc. 117; Ellis v. Ellis, 4 Sw. & Tr.
154; Anon., 6 Mass. 147; Delliber v. Delliber, 9 Conn. 233.

? McFarlane v. McFarlane, 4 Scotch Sess. Cas., 2d Ser., 533.

2 D’Agular v. D’Agular, 1 Hagg. Ecc. 773, 3 Eng. Ecc. 329; Dysart ».
Dysart, 1 Rob. Ecc. 106, 139, 541; Whispell v. Whispell, 4 Barb. (N. Y.)
217; Sharp v. Sharp, 116 Ill. 509; Gholston ». Gholston, 31 Ga. 625;
Cal. Civil Code, sec. 118; Smith v. Smith, 119 Cal. 183.

‘Durant v. Durant, 1 Hagg. Ecc. 733, 3 Eng. Ecc. 310, and cases
cited throughout this section; Shackelton v. Shackelton, 48 N. J. Eq.
364, 27 Am. St. R. 478; Ryder v. Ryder, 66 Vt. 158, 44 Am. St. R. 833.

® Dent v. Dent, 4 Sw. & Tr. 105; Lewsome v. Lewsome, L. R. 2 P. D.
306; Johnson v. Johnson, 14 Wend. (N. Y.) 637, reversing Johnson 2.
CONNIVANCE 363

Whether an offense once condoned will be revived by
misconduct not in itself cause for divorce, either limited
or absolute, is not entirely clear. In the case of cruelty,
however, it is generally conceded that subsequent mis-
conduct falling short of legal cruelty will revive the prior
offense, if it is such as to create a reasonable apprehen-
sion that the former cruelty will be repeated.!

A similar doctrine has been held as to condoned adul-
tery, which was held revived by misconduct of the wife
with her former paramour, which only fell short of actual
adultery because the opportunity to consummate it was
lacking.? Whether condoned desertion for the full stat-
utory period is revived by a subsequent desertion shorter
than the statutory period, seems not to have been de-
cided. Upon principle it should be deemed revived. It
would seem clear, at any rate, that if the party whose
offense is alleged to have been condoned immediately
deserts again without cause, it is cogent evidence that
there was no bona fide intention on his or her part to re-
sume cohabitation, and hence that there was a mere
fraud on the plaintiff rather than what should be deemed
condonation.*

CONNIVANCE

396. Definition and Nature.

Connivance as a ground for refusing a divorce is the
corrupt consenting of one party, expressly or by conduct,
to the commission by the other of the offense for which
a divorce is sought. The reasons for denying divorce

Johnson, 4 Paige (N. Y.), 460; Rose v. Rose, 87 Ind. 481; Robbins ».
Robbins, 100 Mass. 150, 97 Am. D. 91; Crichton v. Crichton, 73 Wis. 59.

1 D’Agular v. D’Agular, 1 Hage. Ecc. 773; Jefferson v. Jefferson, 168
Mass. 456; Gardner ». Gardner, 2 Gray (Mass.), 434; Marshall 2.
Marshall, 65 Vt. 238; Farnham ». Farnham, 73 Ill. 497; Phillips »v.
Phillips, 27 Wis. 252; Hoffmire ». Hoffmire, 3 Edw. Ch. (N. Y.) 173.

2 Winscom v. Winscom, 3 Sw. & Tr. 380.

3 Farnham ». Farnham, 73 Ill. 497.

4See 2 Bish. Mar. Div. & Sep., sec. 203; Dennis v. Dennis, 68 Conn.
186, 57 Am. St. R. 95, 34 L. R. A. 449.
364 CONNIVANCE

where connivance is shown is found in the maxim, vo-
lenti non fit injuria, and in the fact that the very act of
which the plaintiff complains is tainted with his own
wrong.!_ Though this defense finds its most common ap-
plication in cases of adultery, it is applicable in general
to other causes for divorce, as for example to cruelty,
where the plaintiff’s own misconduct invites the abuse
complained of, unless such abuse was entirely dispropor-
tionate to the provocation.? So, in drunkenness, it would
plainly be connivance for the plaintiff to purposely sup-
ply the defendant with liquor or put it in his way.

397. The Consent—Willingness—Negligence.

Where the husband deliberately sells the wife to her
paramour, or consents to her living as a public prostitute,
he is clearly guilty of connivance. Usually, however, the
cases on this subject are not so plain, and show almost
every imaginable gradation of fact from active procure-
ment of the comniission of a matrimonial offense, to
mere negligence or stupidity or blind confidence and trust-
ing affection. Probably mere passive willingness of one
spouse that the other should offend is not connivance.?
And the same is true of mere negligence, unless it is so
gross as to indicate consent, or what is practically the
same thing, a wanton indifference to consequences.‘
Mere imprudence of the husband, therefore, in intro-
ducing the wife to evil companions is not connivance, un-
less he knew their character,’ though the rule is, of course,
otherwise where he knowingly introduces dissolute com-
panions or brings them into the home.

1 Forster v. Forster, 1 Hagg. Con. 144; Cairns »v. Cairns, 109 Mass.
407.

2 See ante, sec. 361.

* Robbins ». Robbins, 140 Mass. 528, 54 Am. R. 488; post, sec.
399.

‘ Harris v. Harris, 2 Hagg. Ecc. 376; Rix v. Rix, 3 Hagg. Ecc. 137;
Hedden v. Hedden, 21 N. J. Eq. 70.

5 Robbins v. Robbins, supra.
CONNIVANCE 365

398. Same—Articles of Separation—Cruelty—Deser-
tion.

Articles of separation between husband and wife do
not of themselves imply a license to commit adultery.
But if, after such articles are made, the parties them-
selves appear mutually to regard them in that light the
court will adopt their construction,! and consent may be
inferred from the language of the articles alone, or in con-
nection with the state of affairs which the parties knew
to exist when they were executed.”

Cruelty is not ordinarily deemed connivance at adul-
tery, unless, perhaps, it is intended to bring it about and
directly induces it,? and the same is true of abandonment
and failure to support,‘ though in most states these of-
fenses may be pleaded and proved by way of recrimina-
tion.®

399. Same—Failing to Prevent—Watching and En-
trapping.

Where one spouse has good reason to believe the other
guilty, he is not bound, as in cases where no such reason
exists, to restrain or circumvent the wrongdoer. He may
watch and procure such evidence as the other’s adulterous
propensities may supply.®

But the alleged sufferer must not be active in bringing
about the offense. In other words, the plaintiff must

1 Sullivan v. Sullivan, 2 Ad. Eee. 314.

2 See Thomas v. Thomas, 2 Sw. & Tr. 113; Barker ». Barker, 2 Ad.
Eee. 285; Studdy v. Studdy, 1 Sw. & Tr. 321; Walton v. Walton, L. J.
Mat. Cas. 97; Ross v. Ross, L. R. 1 Prob. Div. 734.

3 Dillon v. Dillon, 3 Curt. Ecc. 86.

Steele v. Steele, 104 N. Car. 631. But see Hawkins ». Hawkins,
10 P. D. 177; 1 Nels. Div. & Sep., sec. 480; Richardson v. Richardson,
114.N. Y. Supp. 912. '

5 See ante, secs. 389, 390.

* Robbins v. Robbins, 140 Mass. 528, 54 Am. R. 488; Wilson 2.
Wilson, 154 Id. 194, 26 Am. St. R. 237, 12 L. R. A. 524; Cairns ».
Cairns, 109 Mass. 408; Cochran v. Cochran, 35 Ia. 477; Lee v. Ham-
mond, 114 Wis. 550, 558.
366 CONNIVANCE

not set the trap with which the defendant is caught. A
husband who invites an adulterer and then turns his back
connives.! And it has been held that a husband is respon-
sible for the acts of his agents in this regard, though they
were employed to detect and not to bring about the of-
fense.?

It should also be borne in mind that where the com-
plaining spouse has no reason to suspect the other of pre-
vious marital wrongdoing, it is his duty to take reasonable
steps to prevent the consummation of a threatened offense,
and if his failure to do so is willful rather than the result
of stupidity, bad judgment or overconfidence, he is guilty
of connivance.*? While mere negligence of the husband is
not connivance, it may be so gross as to lead to the in-
ference of consent,‘ and where the husband has himself
seduced the wife before marriage, or knows of her ante-

‘nuptial incontinence with others, he will be held to the
exercise of peculiar care and vigilance in safeguarding
her from corruption.®

In applying the foregoing principles the courts are in-
clined to deal rather more leniently with the wife than
with the husband, owing, no doubt, to her dependence
and lack of opportunity to know of his misconduct and
her inability to control him.® Still, where actual consent

1 Moorson ». Moorson, 3 Hage. Ecc. 87; Trimmings v. Trimmings,
2 Hagg. Ece. 76; Meyer v. Meyer, 41 Barb. 114; Hedden ». Hedden,
21 -N. J. Eq. 61; Dennis ». Dennis, 68 Conn. 186, 57 Am. St. R. 95,
34 L. R. A. 449; Morrison v. Morrison, 142 Mass. 361, 56 Am. R. 688,
and note.

? Gower v. Gower, 2 P. & M. 428. See Dennis ». Dennis, 68 Conn.
186, 34 L. R. A. 449, 57 Am. St. R. 95.

+ Foster v. Foster, 1 Hagg. Con. 155; Robbins v. Robbins, 140 Mass.
528, 54 Am. R. 488; Hedden v. Hedden, 21 N. J. Eq. 70.

‘Rix o. Rix, 3 Hagg. Ecc. 74. Compare Harris v. Harris, 2 Hagg.
Eee. 415.

* Dillon v. Dillon, 3 Curt. Ecc. 85; Hedden v. Hedden, 21 N. J. Eq.
70; Crane v. Crane, 39 N. J. Eq. 148.

® Ross v. Ross, L. R. 1 Prob. Div. 734; Cochran ». Cochran, 35 Ia.
479.
COLLUSION 367

on her part fairly appears, the wife as well as the husband
will be barred for connivance.

400. How Far Connivance at One Offense Bars An-
other.

Conniving at one offense has been held no bar to a
prior one of the same character.! But connivance in one
adultery has been held to be a bar so far as a subsequent
adultery is concerned, whether it is committed with the
former paramour or another.’

COLLUSION

401. Definition and Nature. .

Collusion is in many respects similar to connivance,
and may be defined as an agreement between parties to
a divorce action whereby one of them commits, or appears
to commit, an act which would otherwise constitute a
matrimonial offense, or whereby evidence in such action
is to be fabricated or suppressed.°

Collusion bars divorce, not merely because there is in
most cases no real injury, but because it is a contempt of
the court and a conspiracy against justice in a matter
wherein the public has a vital interest.

It has even been held collusion, or in the nature of it,
for the defendant to pay or agree to pay the plaintiff
for prosecuting a divorce suit, though there was other-
wise a meritorious cause of action,‘ or to refrain from
defending it, though there may in fact have been no valid

1 Woodward ». Woodward, 41 N. J. Eq. 224; Bleck ». Bleck, 27 Hun
(N. Y.), 296; Morrison v. Morrison, 142 Mass. 361, 56 Am. R. 688.

2 Lovering v. Lovering, 3 Hagg. Ecc. 57; Stone v. Stone, 1 Rob. Ecc.
99. And it has been held that a husband’s unsuccessful endeavors to
procure an act of adultery by the wife bars him from divorce for her
subsequent actual adultery. Hedden ». Hedden, 21 N. J. Eq. 70;
Stone v. Stone, supra. Compare Hodges v. Hodges, 3 Hagg. Ece. 118,
5 Eng. Ece. 42.

3 See 2 Bish. Mar. Div. & Sep., sec. 249.

‘Thompson v. Thompson, 70 Mich. 62; Gentry v. Gentry, 67 Mo.
App. 550; Costill ». Costill, 47 N. J. Eq. 346.
368 COLLUSION

defense.! In other cases, where a matrimonial offense has
actually been committed there is seldom any motive for
collusion unless it concerns connivance, condonation, or
some other matter that would defeat the action. Some-
times, however, parties collude for the purpose of securing
a divorce upon grounds less scandalous than the real griev-
ance. Where this appears their action will of course fail,
though it is said that a subsequent action based upon
the real injury might still be brought if free from the
taint of collusion.

402. Same—aActual or Apparent Misconduct by Agree-
ment. .

A gross form of collusion is where one party commits,
or appears to commit, by agreement with the other, and
with a view to divorce, an act constituting a cause for
divorce, under such circumstances that it can be readily
proved. Plainly no divorce will be granted in such a case.’

403. Offending in Hope of Divorce.

The mere fact that one party desires a divorce and
offends with the hope that the other will sue for it will
not bar the latter, who has neither agreed nor consented.‘

404. Facilitating Divorce.

That both parties desire a divorce and that they are in
friendly communication before and during the pendency
of the action is not connivance, though it is ordinarily a
suspicious circumstance calculated to induce great. vigi-
lance on the part of the court,® and the same is true where

1 Barnes v. Barnes, L. R. 1 P. D. 505; Blank »v. Nohl, 112 Mo. 159,
18 L. R. A. 350.

* See Churchward v. Churchward, 11 Rep. 626.

* Todd v. Todd, L. R. 1 P. & M. 121; Huntley ». Huntley, 73 Hun
(N. Y.), 261.

* Crewe v. Crewe, 3 Hagg. Ecc. 123, 5 Eng. Ecc. 123; Cowan v.
Cowan, 23 Misc. (N. Y.) 754, 53 N. Y. Supp. 93.

‘Harris v. Harris, 4 Sw. & Tr. 282; McCarthy ». McCarthy, 36
Conn. 177; Leavitt v. Leavitt, 13 Mich. 452; Wilde v. Wilde, 37 Neb.
891.
DELAY AND INSINCERITY 369

there is great haste and secrecy in the proceedings,’ the
entry of a voluntary appearance by the defendant,? or the
withdrawal of an answer.’ Mere failure to contest, how-
ever, does not alone raise a presumption of collusion. The
above facts, however, taken together or in connection with
others, may of course, warrant a finding of‘ collusion.‘ If
suspicion merely is aroused, it is doubtless proper to dis-
miss the action without prejudice, unless the plaintiff con-
sents to a continuance pending due investigation.®

DELAY AND INSINCERITY

405. Delay in General.

In the absence of statute, mere delay in prosecuting a
divorce action will not operate as a bar. But where there
is a long interval between the time when the offense be-
came known to the plaintiff and the commencement of
the suit, the courts proceed upon the general presumption,
either that no offense was committed in fact, or that there
was condonation, connivance, insincerity, or some other
matter affecting the merits of the case.’ This presump-
tion, however, is not absolute, but demands satisfactory
rebuttal.? Thus, proof that the plaintiff was unable sooner
to obtain sufficient evidence,°or of the absence of the plain-

1 Costill v. Costill, 47 N. J. Eq. 346; E. B. v. E. C. B., 28 Barb.
(N. Y.) 299.

2 Costill v. Costill, supra.

"Wolf v. Wolf, Wright (Ohio), 244; Leavitt v. Leavitt, 13 Mich.
452. See also Holcomb v. Holcomb, 100 Mich. 421.

4 Costill v. Costill, supra.

5 Wolf ». Wolf, supra.

6 D’Agular v. D’Agular, 1 Hagg. Ecc. 773, 3 Eng. Ecc. 329; Johnson
». Johnson, 50 Mich. 293.

7 Pellew v. Pellew, 1 Sw. & Tr. 553; Mortimer v. Mortimer, 2 Hagg.
Con. 310, 4 Eng. Ecc. 543; Cummins v. Cummins, 15 N. J. Eq. 138;
Reed v. Reed, 52 Mich. 117, 50 Am. R. 247; Lorenz v. Lorenz, 93 III.
376, 379.

8 Cood ». Cood, 1 Curt. Ecc. 755, 6 Eng. Ece. 452.

9 Hampton v. Hampton, 87 Va. 161; Clark v. Clark, 97 Mass. 331.

24
370 DELAY AND INSINCERITY

tiff or defendant,! and a variety of other circumstances,
have been held adequate in rebuttal.”

In delay, as in condonation, the courts presume more
strongly against the husband than the wife, whose de-
pendence, natural hope of reconciliation and reluctance
to involve herself and her children in public scandal must
be duly considered.

406. Same—Statutes.

In some states statutes limit the time after the offense,
or its discovery, in which suit for divorce must be brought.*
The general statutes of limitation, however, are usually
inapplicable to divorce.*®

407. Insincerity.

Insincerity is hardly capable of exact definition, but
signifies, in general, the attitude of a plaintiff who insti-
tutes a divorce suit, not for the purpose of securing redress
for a matrimonial wrong, but to achieve some independent,
purpose. Thus, if the motive is to give the defendant
trouble or to injure his or her reputation rather than to
obtain a divorce, a decree will be refused.’ But the fact
that the principal or sole motive of the plaintiff is collateral

1 Schonwald v. Schonwald, 62 N. Car. 215; Williamson v. William-
son, 1 Johns. Ch. (N. Y.) 488. Compare Barker x. Barker, 63 N. J.
Eg. 593.

28ee Tollemache v. Tollemache, 1 Sw. & Tr. 554; Cummins 2.
Cummins, 15 N. J. Eq. 138; Yorston v. Yorston, 32 N. J. Eq. 495.
In this last case, the wife submitted to a separation due to her husband’s
cruelty, so long as she was permitted access to her children. Held, that
the delay until such access was denied her was justifiable.

* Cooke ». Cooke, 3 Sw. & Tr. 126; Cummins ». Cummins, supra.
Compare Rawdon »v. Rawdon, 28 Ala. 565.

*Valleau v. Valleau, 6 Paige (N. Y.), 207; Montgomery v. Mont-
gomery, 3 Barb. Ch. (N. Y.) 132.
~ § Mosley v. Mosley, 67 Ga. 92; Tufts v. Tufts, 8 Utah, 142, 16 L. R.
A. 482. Contra, Moulton v. Moulton, 2 Barb. Ch. (N. Y.) 309.

* See Briggs ». Morgan, 2 Phil. 325, 1 Eng. Ecc. 408; 2 Bish. Mar.
Div. & Sep., sec. 433. z

7 Kerrigan v. Kerrigan, 15 N. J. Eq. 146.
DELAY AND INSINCERITY 371

to the mere dissolution of the marriage tie is no bar, if,
in fact, it be something which grows out of the marriage
relation and to which he or she is justly entitled.!. Thus,
that the plaintiff whose case is otherwise meritorious
desires alimony or support, or the custody of children,
or to bar the dower of an adulterous wife, is no reason
for refusing a decree.” Indeed the fact that the plaintiff
wishes to form a new and presumably happier union
would not alone militate against the right to divorce.

1See Scott v. Scott, Searls & S. 133; Besant ». Wood, 12 Ch. D. 605.
2See generally on this subject, Besant 1 Wood, supra; Scott v.
Scott, 4 Sw. & Tr. 113. is
CHAPTER XXXiIII

ALIMONY AND KINDRED ALLOWANCES PENDING AND AFTER
DIVORCE

408. Alimony in General—Origin, Nature and Kinds.

The ecclesiastical courts had no power to grant absolute
divorce. As an incident to the suit for divorce a mensa
et thoro, or judicial separation, however, they commonly
granted the wife a livelihood as against her husband, both
pending the action and after a decree in her favor, and
they made similar allowances to her pending suits for
nullity of marriage, and for restitution of conjugal rights.

This allowance was generally termed alimony and was
of two kinds:

1. Temporary Alimony, also called alimony ad interim,
or alimony pendente lite, which was an allowance to the
wife for her maintenance during the suit, and,

2. Permanent Alimony, or an allowance to the wife
against the husband for her support upon and after a
decree of divorce a mensa et thoro. The basis of alimony
was, of course, the duty of the husband to support the
wife and the fact that, by the common law, her property
vested in him, either absolutely or during coverture.

409. Authority and Jurisdiction To Grant Alimony
upon Absolute Divorce.

Absolute divorce being unknown to the common law,
question has arisen both as to the power to grant alimony
and its nature when granted, under statutes authorizing
divorce from the bond of matrimony.! So far as tem-
porary alimony is concerned, it seems that it depends
upon the same principles whether the divorce sought is

1 See post, sec. 423.
372
ALIMONY 373

absolute, or from bed and board substantially as at com-
mon law, for until final decree the wife is as much a wife
in the one case as in the other, and is entitled as such to
support upon the same showing in either. In fact it is
generally held in this country, that where the statutes
permit absolute divorce, temporary alimony may be
awarded the wife without the aid of statute.! But when
an absolute divorce is granted, the marriage tie is com-
pletely severed, a state of things unknown to the common
law. Legally the parties are complete strangers to one
another. It is therefore held that upon absolute divorce
courts have no power to grant permanent alimony by
force of the common law, but must derive their authority
to do so from statute.? But statutes of all the states
where absolute divorce is permitted authorize the courts
to grant a permanent allowance for the support of the
wife after dissolution of the marriage tie. Though this is
commonly called alimony, it has been much questioned
how far it resembles the alimony of the ecclesiastical law
so as to be governed by its principles and precedents.
This question will be discussed later on.®

410. Alimony as an Independent Right.

By the ecclesiastical law, alimony was not an inde-
pendent right. It was purely an incident to the suit for
judicial separation. It is the prevailing rule in this coun-
try, therefore, that alimony can never be granted without
a limited or absolute divorce, unless authorized by express
legislation.‘ In many states, however, courts of equity

1 Petree v. People, 40 Ill. 334; Griffin v. Griffin, 47 N. Y. 184; Goove’s
Appeal, 68 Pa. 143; McGee v. McGee, 10 Ga. 478. Contra, Nary v.
Bradley, 41 Vt. 180; Lea 2. Lea, 104 N. Car. 603, 17 Am. St. R. 692;
Thayer v. Thayer, 9 R. I. 377. Temporary alimony upon absolute
divorce is now authorized by statute in these last three states.

22 Bish. Mar. Div. & Sep., sec. 857; 2 Nels. Div. & Sep., sec. 900;
Romaine v. Chauncey, 129 N. Y. 566, 26 Am. St. R. 544, 14 L. R. A.
712.

3 See post, sec. 423.
4See ante, sec. 126; Fishli v. Fishli, 1 Blackf. (Ind.) 360, 12 Am. D.
374 ALIMONY

assume jurisdiction to award alimony without divorce
to an injured and needy wife living separate from a hus-
band who is able to supply her wants, on the ground,
usually, that she has no adequate remedy at law for the
realization of her support.!_ In a number of other states
alimony independent of divorce is allowed by statutes
which commonly define the circumstances under which it
may be awarded. In general, there must be a showing
of abandonment, failure to support, or an actual cause
for divorce or separation.’

411. Alimony in Nullity Suits.

If the suit is technically for nullity, as distinguished
from divorce proper,’ no alimony can be awarded in the
absence of statute, save that where the wife defends,
asserting the validity of the marriage, she may be allowed
alimony pendente lite and suit money. Where a decree
of nullity is entered, however, it would seem that the
wontan, whether plaintiff or defendant, may, if innocent
in the matter, have an allowance, not as alimony proper
for that presupposes a valid marriage, but as compensa-
tion for the pecuniary benefits accruing to the man from
her aid and industry.®

251; Bowman v. Worthington, 24 Ark. 522; McIntire ». McIntire, 80
Mo. 470; Parsons v. Parsons, 9 N. H. 309, 32 Am. D. 362; Ross ».
Ross, 69 Ill. 569.

1Glover v. Glover, 16 Ala. 440; Hinds ». Hinds, 80 Ala. 224, and
authorities cited; Feegley v. Feegley, 7 Md. 538, 61 Am. D. 375; Earle
v. Earle, 27 Neb. 277, 20 Am. St. R. 667; Edgerton v. Edgerton, 12 Mont.
122, 16 L. R. A. 94, 33 Am. St. R. 557.

?See Winn ». Sandford, 148 Mass. 39, 1 L. R. A. 512; Buckingham
v. Buckingham, 176 Mass. 229, 49 L. R. A. 735; In re Popejoy, 26 Col.
32, and note thereto in 77 Am. St. R. 223; Hair v. Hair, 10 Rich: Eq.
(S. Car.) 163.

3 See ante, sec. 328.

4 Griffin ». Griffin, 47 N. Y. 134, 140, and authorities cited; Willetts
v. Willetts, 76 Neb. 228, 5 L. R. A. (N. 8.) 767.

5 Werner v. Werner, 59 Kan. 399, 41 L. R. A. 349, 68 Am. St. R. 372,
and note; Buckley ». Buckley, 50 Wash. 217, 126 Am. St. R. 900.
ALIMONY 375

412. Alimony to Husband or to Guilty Wife.

Alimony to the husband was unknown at common law
and unless sanctioned by express statutes, as in a few
states, the courts have no power to award it to him.! In
some states, however, the divorce courts are empowered
to restore to the husband, in whole or in part, property
derived from him by the wife.’

While thé wife was denied alimony at common law
upon a divorce for her fault, statutes in England and
some of our states authorize some allowance to her in
the nature of alimony or a division or restoration of prop-
erty in such cases. Usually the court may exercise its:
discretion, but will only do so in favor of the guilty wife
where her equity is plain.? If the misconduct of the wife
is gross and the husband is without fault, no alimony will
be allowed her.‘

TEMPORARY ALIMONY

413. General Rules.

Alimony pendente lite is allowed the wife in a proper
case, whether she is plaintiff or respondent, practically
as a matter of course, the only requirement being that
she shall make a prima facie showing of good faith and
a meritorious cause of action or defense.®

As there can be no divorce without marriage, when the

Statutes in some states dispel doubt on this point. See Stapleberg ».
Stapleberg, 77 Conn. 31. See also ante, sec. 328, as to the rights of a
woman defrauded into a void marriage.

1 Brenger ». Brenger, 142 Wis. 26. See Pub. Stat. R. I., Chap. 167,
sec. 12; Ia. Code 1873, sec. 2226; Gen. Stat. Mass. 1860, Chap. 107,
sec. 44,

2 See post, sec. 426.

* Harris v. Harris, 31 Grat. (Va.) 13, Deenis ». Deenis, 79 Ill. 74;
Scheafe v. Laighton, 36 N. H. 240; Fivecoat v. Fivecoat, 32 Ia. 198;
Davis ». Davis (Georgia, 1910), and note thereto in 71 Cent. L. Jour.
191.

4 Spaulding v. Spaulding, 133 Ind. 122, 36 Am. St. R. 534,

5’ Harding v. Harding, 144 Ill. 588, 21 L. R. A. 310; Collins v. eeuns
80 N. Y. 1; Friend v. Friend, 65 Wis. 412.
376 ALIMONY

fact of marriage is controverted, the wife must make at
least a prima facie showing of a valid marriage as a basis
for temporary alimony.

So long as an order for temporary alimony is in force
and is regularly complied with, it stands in lieu of any
right that the wife may have to support, or that third
persons may have against the husband for necessaries
furnished her, unless he voluntarily assumes a larger re-
sponsibility.”

414. Temporary Alimony—Principles of Allowance—
Wife’s Needs and Husband’s Abilities.

Aside from the requisites above discussed, there must,
to warrant alimony pendente lite, be a showing of the
wife’s needs and the husband’s abilities. These must be
determined, not merely by the property or income of the
parties independent of labor or effort, but by their re-
spective earning capacities and opportunities.? As a gen-
eral rule, therefore, a wife who has ample abilities to
properly sue or defend and to maintain herself meanwhile
will be refused alimony pendente lite; * and if she has
some means or other abilities but these are inadequate,
the court will grant only enough to supply the deficiency.®
The fact that others than the husband are willing to aid
the wife or support her in case of need, however, does not
militate against her right to alimony pendente lite.®

As a general rule, alimony pendente lite will not be
allowed, at least where the husband is defendant, unless

1See 2 Nels. Div. & Sep., sec. 855; Gruhl ». Gruhl, 123 Ind. 86.

2 Hite v. Hite, 124 Cal. 389, 71 Am. St. R. 82, 45 L. R. A. 793;
Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. R. 460; Smithie v. Smithie,
61 Ia. 138; Bowman v. Bowman, 24 Ill. App. 165; Vandegrift ». Vande-
grift, 30 N. J. Eq. 76; Sharon », Sharon, 75 Cal. 1; Eckhoff 7. Eckhoff,
29 Col. 295, 93 Am. St. R. 64.

* Hare v. Gibson, 32 Ohio St. 33, 30 Am. R. 568, 571.

“Muse v. Muse, 84 N. Car. 35.

5 D’Agular v. D’Agular, 1 Hagg. Ecc. 773; Collins v. Collins, 80 N. Y.
1; Haddon ». Haddon, 36 Fla. 413; Cooper v. Cooper, 185 Ill. 163.

6 Gray v. Gray, 28 N. Y. Supp. 856.
ALIMONY 377

it is admitted or proved that he is able to pay.’ It has
been held, however, that a plaintiff husband who is too
poor to pay such temporary alimony as will enable the
wife to adequately defend, must have his bill dis-
missed.”

415. Same—The Amount of Temporary Alimony.

Conceding the wife’s needs and the husband’s abili-
ties, the courts are not entirely agreed as to what prin-
ciples should govern the amount of the temporary award.
Most courts hold that the allowance should be sufficient
to maintain the wife in substantially the position she
occupied before the suit was brought,? while a few are
inclined to confine it to the actual needs of the wife, deem-
ing it unwise to make a larger allowance until the issue is
finally determined in her favor.‘ In any case the amount
of the award is largely within the discretion of the court,
regard being had to all the circumstances of the case.®
One fifth of the joint income of the parties, deducting
the separate income of the wife, is a rule frequently
adopted, though it by no means controls, as its applica-
tion would often lead to unjust and ridiculous conse-
quences.®

1 Butler v. Butler, 1 Lee, 38; Battey v. Battey, 1 R. I. 212; Ross »v.
Ross, 47 Mich. 185; Feigley v. Feigley, 7 Md. 537, 61 Am. D. 375.

2 Cairnes v. Cairnes, 29 Col. 260,93 Am. St. R.55; Hallock v. Hallock,
4 How. Pr. (N. Y.) 160; Mangles v. Mangles, 6 Mo. App. 481. See
also Moon »v. Moon, 43 N. J. Eq. 403.

* Williams v. Williams, 29 Wis. 517; Harding v. Harding, 144 II.
588, 21 L. R. A. 310.

4 Leslie »v. Leslie, 6 Abb. Pr. (N.S., N. Y.) 193; Morrell v. Morrell,
2 Barb. (N. Y.) 480.

’ Hecht v. Hecht, 28 Ark. 92; Haddon v. Haddon, 36 Fla. 413, 417;
Cooper v. Cooper, 185 Ill. 163.

6 As illustrating the principles and considerations that have in-
fluenced the amount of alimony pendente lite, see Williams ». Wil-
liams, 29 Wis. 517; Sharon v. Sharon, 75 Cal. 1, 47; Harding v. Harding,
144 Ill. 588, 21 L. R. A. 310; Cooper v. Cooper, 185 Ill. 163; Hickhoff
». Eickhoff, 29 Col. 295, 93 Am. St. R. 64; Culpepper ». Culpepper, 98
Ga. 304.
378 ALIMONY

416. When Alimony Pendente Lite Commences.

In ecclesiastical practice alimony pendente lite was
usually awarded from the return of the citation.’ In this
country, however, the time from which temporary ali-
mony runs is in the discretion of the court, and such ali-
mony terminates with the suit.”

417. Temporary Alimony on Appeal.

The trial court, by some authorities, has sole jurisdic-
tion to fix temporary alimony pending a decision on ap-
peal, for the court above seldom has facts before it suffi-
cient to warrant intelligent action in this regard,* unless
the appeal is from the order for temporary alimony it-
self. But it is held by many courts that when the appeal
is once perfected jurisdiction over temporary alimony
and kindred allowances is in the appellate court.’ But to
warrant an order or judgment for temporary alimony on
appeal, the facts should be sufficient to satisfy the court
that the appeal is fairly justified.®

418. Other Allowances Pendente Lite.

Temporary alimony, properly speaking, is strictly a
provision for the wife’s support, but other allowances
pendente lite are often confused with it, both in decisions
and in statutes. These latter allowances should be con-
sidered under such special heads as suit money, counsel
fees, allowances for support of children, and the like.
Each head represents a distinct subject-matter, which
may sometimes call for the application of special prin-
ciples which it is not our purpose to discuss in detail.

1 Harris ». Harris, 1 Hagg. Ecc. 352; Lovenden 2. Lovenden, 1 Ph.
208.

? Herlbron ». Herlbron, 158 Pa. 297, 38 Am. St. R. 845.

* Reilly v. Reilly, 60 Cal. 624; Hunter ». Hunter, 100 Ill. 477; State
v. St. Louis Ct. of App., 88 Mo. 135.

4Sharon v. Sharon, 67 Cal. 185.

‘Prine v. Prine, 36 Fla. 676, 34 L. R. A. 87; Wagner v. Wagner, 36
Minn. 239; Friend ». Friend, 65 Wis. 412.

‘Friend ». Friend, supra; Storke ». Storke, 99 Cal. 621; Eliot 2.
Eliot, 81 Wis. 295, 15 L. R. A. 259.
ALIMONY 379

“To recognize the right of a woman to sue or defend
in a divorce action and to deny her the means of so doing
is a solecism which the law does not tolerate.” It is the
general rule, therefore, that a necessitous wife, whether
plaintiff or defendant, is entitled to such a reasonable
allowance from her husband, in addition to alimony
pendente lite, as shall place her, all things considered, on
a parity with him as to the means of litigating their dis-
pute.

As in alimony proper, so with suit money, the hus-
band’s abilities and the wife’s needs are the principal
criteria, and both are usually allowed at the same time
and upon the same showing.?

PERMANENT ALIMONY UPON LIMITED DIVORCE

419. Jurisdiction to Grant.

Authority to decree divorce of any kind in this coun-
try is derived from statute. But where our courts are
authorized to grant what is substantially the divorce a
mensa et thoro of the ecclesiastical courts, whether it be
called by that or a different name, they have power to
grant alimony, as we have seen, without express authority
of statute. Alimony upon limited divorce, therefore, is
granted substantially upon the principles of the common
law, unless statutes prescribe different rules or justify dif-
ferent provisions.®

420. Characteristics.

As the marriage is not dissolved by a decree of limited
divorce, but its purely personal duties merely are sus-
pended, if the husband dies, the wife is entitled to dower

1 D’Agular v. D’Agular, 1 Hagg. Ecc. 329. _

21¢ may not be amiss to say, in this connection, that bargains by
attorneys for contingent fees in divorce cases are especially con-
demned. White v. White, 86 Cal. 212. In fact, attorneys in such
suits are under a special duty to refrain from any bargain that would
tempt them to discourage reconciliation, however remotely possible.
Jordan ». Westerman, 62 Mich. 170, 4 Am. St. R. 836.

32 Nels. Div. & Sep., sec. 902.
380 ALIMONY

and to her distributive share.! Neither party can marry
again, nor has the wife, in the absence of statute, the ca-
pacities of asingle woman. Permanent alimony on limited
divorce is therefore founded primarily upon the wife’s
right to the support of her husband in accordance with
his means, ability and condition in life. It therefore fol-
lows, independent of statute, that the husband cannot
have alimony from the wife, nor can the wife have it, in
the absence of statute, where she fails in her suit.? It
likewise follows that alimony terminates upon reconcilia-
tion of the parties and a resumption of cohabitation,’ or
the death of either of them.‘

421. Same—How far Subject to Change.

As permanent alimony upon limited divorce is in
recognition of the wife’s right of continuous support in
accordance with the means of the husband and her own
necessities, pending a possible reconciliation, a material
change in the condition or circumstances of the parties
should be met by a change in the allowance. It is the
settled rule, therefore, in the absence of statute, that
permanent alimony upon limited divorce is peculiarly
within the control of the court, and can be changed at any
time upon a proper showing by either party of a new con-
dition of facts.5

422. The Basis and Amount of Permanent Alimony
upon Limited Divorce.
The principal basis of alimony at common law and

1 See ante, sec. 214.

2 See ante, sec. 412; 2 Nels. Div. & Sep., sec. 906.

* Lockridge v. Lockridge, 3 Dana (Ky.), 28, 28 Am. D. 52; Rogers
v. Vines, 6 Ired. (N. Car.) 293.

‘Lockridge v. Lockridge, supra; Dewes ». Dewes, 55 Miss. 315.
As to arrears due at death of either spouse, see Wilson v. Hickman,
182 N. Y. 408, 2 L. R. A. (N. 8.) 232, and note; post, sec. 424.

* De Blanquiere v. De Blanquiere, 3 Hagg. Ecc. 322; Lockridge v.
Lockridge, 3 Dana (Ky.), 28, 28 Am. D. 52.
ALIMONY 381

largely under statutes, is the husband’s ‘faculties.’
These may be generally defined as his capabilities of
maintaining a family, consisting, ordinarily, of income
from whatever source derived, whether from property or
personal labor,! or his ability to earn if he would improve
his opportunities to labor.

PERMANENT ALIMONY UPON ABSOLUTE DIVORCE

423. In General.

Permanent alimony upon absolute divorce differs in
some important respects from alimony upon judicial sep-
aration. The parties are in a position unknown to the
common law. They are no longer married, and nothing
can be decreed to the wife in strict recognition of her
common-law right to support. Alimony upon absolute
divorce can be granted, therefore, only by authority of
statute.? Furthermore, upon absolute divorce dower and
courtesy are extinguished in the absence of statute, and
the wife has all the rights and capacities of a feme sole.
It is therefore regarded by many courts that an award of
permanent alimony upon dissolution of marriage is in
the nature of a final settlement of mutual accounts be-
tween the parties, and cannot be revised or changed
after the term at which the decree was rendered unless
power to do so is reserved in the decree itself,’ or the stat-
utes, as in most states, authorize its revision upon a
changed state of facts.t Where an absolute divorce is
granted without alimony similar principles apply, and if
the court had jurisdiction to render a decree for alimony,
and the wife had an opportunity to litigate the question

1 Heninger v. Heninger, 90 Va. 271.

2See ante, sec. 409; Peltier v. Peltier, Harr. Ch. (Mich.) 19; Cole ».
Cole, 142 Ill. 19, 34 Am. St. R. 56, 19 L. R. A. 811; Davol ». Davol, 13
Mass. 264.

4 Walker v. Walker, 155 N. Y. 77; Livingston v. Livingston, 173 N. Y.
377, 93 Am. St. R. 600, 61 L. R. A. 800.

4See Knapp v. Knapp, 134 Mass. 353, 355; Graves v. Graves, 182
Ta. 199, 10 L. R. A. (N. 8.) 216; Cole v. Cole, supra.
382 ALIMONY

of alimony, it is res judicata,! unless it is expressly re-
served by the decree,? or the statute authorizes alimony
at a subsequent time,* or the circumstances of the parties
have changed since the decree so as to justify a revision
of alimony under authority of a statute which would
have warranted revision had alimony been decreed to the
wife in the first instance. But if the wife has no oppor-
tunity to litigate the question of alimony, as where the
proceeding was in another state and without actual no-
tice to her, her right to alimony out of the property of
the husband in the state of her domicile has by some
courts been held unaffected.®

424, Duration of Permanent Alimony.

The question of the duration of permanent alimony
upon absolute divorce has occasioned some difficulty.
Usually it terminates upon the death of either party.®
In some states judgments decreeing it for the natural life
of the wife have been upheld as against the husband’s
estate, particularly where such decree was entered by
agreement or consent.’ But if the intention of the court
was to award a sum in gross as a final settlement of the
property rights of the parties, though it is to be paid by
installments, it may be collected after the death of the
husband or wife.’

1 Bassett v. Bassett, 99 Wis. 344, 67 Am. St. R. 863.

2 Ex parte Ambrose, 72 Cal. 398; Downey v. Downey, 98 Ala. 373,
21 L. R. A. 677; Bassett v. Bassett, supra.

3 Ela v. Ela, 63 N. H. 116.

‘Cole v. Cole, 142 Ill. 19, 34 Am. St. R. 56, 19 L. R. A.-811. But
see Bassett v. Bassett, 99 Wis. 344, 67 Am. St. R. 863.

5 See Cook ». Cook, 56 Wis. 195, 43 Am. R. 706, and cases cited;
ante, sec. 341.

§Craig v. Craig, 163 Ill. 176; Knapp ». Knapp, 134 Mass. 354;
Martin v. Martin, 33 W. Va. 695; Maxwell v. Sawyer, 90 Wis. 352.

7 Alimony under a consent decree until the wife remarries, held to
continue after the death of the husband, as long as the wife remains
single. Storey v. Storey, 125 Ill. 608, 8 Am. St. R. 417, 1 L. R. A. 320,
and see cases cited in the opinion in Craig ». Craig, 163 Ill. 176.

Dow ». Blake, 148 Ill. 76, 39 Am. St. R. 156; Storey v. Storey, supra;
ALIMONY 383

The remarriage of the wife does not terminate perma-
nent alimony upon absolute divorce, in the absence of a
clause in the decree, though it may be taken into account
upon an application to reduce the amount or to relieve
the husband from alimony altogether in states where
permanent alimony upon absolute divorce is subject to
revision; ! and her subsequent misconduct alone has been
held no ground for vacating the decree or reducing the
amount of the allowance.’

425. Amount of Permanent Alimony upon Absolute
Divorce.

The statutes relative to absolute divorce usually confer
upon the courts a wide discretion as to the amount of ali-
mony and similar allowances.* Ordinarily the amount
will be largely governed by considerations and principles
identical with, or similar to, those applied by the eccle-
siastical courts.

Still absolute divorce leaves the parties in a position
quite different from a divorce from bed and board. Un-
der the latter, alimony was quite strictly limited to a
reasonable support, according to the husband’s faculties,
pending a possible reconciliation, though the greater the
husband’s dereliction and the wife’s merits the more lib-
eral the allowance for support. Upon absolute divorce,
however, judicial discretion should be fairly interpreted
in view of the situation in which the wife is left by
the law. She should have, not merely a provision for
future support, but compensation for property rights,

Miller ». Clark, 23 Ind. 370; Wilson ». Hickman, 182 N. Y. 408, 2
L. R. A. (N. 8.) 232, and note.

1 Southworth ». Treadwell, 168 Mass. 511; Stillman ». Stillman, 99
Ill. 196, 39 Am. R. 21, and note.

See Cole v. Cole, 142 Ill. 19, 34 Am. St. R. 56, 19 L. R. A. 811;
Sloan ». Cox, 4 Hayw. (Tenn.) 75.

’Stimp. Am. Stat. Law, sec. 6262.

4 See 2 Bish. Mar. Div. & Sep., secs. 1009 et seq.
384 ALIMONY

including her dower when this is not secured to her by
statute. ?

The husband’s abilities are the basis of permanent ali-
mony upon absolute as upon limited divorce, and while
the award to the wife should be so far within his abili-
ties as not to unreasonably reduce his means of living or
to be unjustly or harshly burdensome upon him, each case
must be decided upon its own merits, and nothing short
of a manifest abuse of discretion will lead to interference
with the alimony awarded by the trial court.? It is often
said that an allowance varying from a moiety of the hus-
band’s income or estate to a third or less is proper ac-
cording to the circumstances, though this is not an absolute
test.

Among the elements that will increase or diminish the
allowance are the age, health and social position of the
parties; the enormity of the husband’s fault, and the con-
duct of the wife, whether meritorious or otherwise; the
length of time they have lived together; the source of
the husband’s property, whether it was inherited or
earned by him, or was the result of joint labor and fru-
gality, or was derived from the wife; the burden of sup-
porting children after the decree, and any provision al-
ready made by way of settlement upon the wife, and her
independent means derived from other sources.?

1 Gerecke ». Gerecke, 100 Mo. 237; Cole v. Cole, 142 Ill. 19, 34 Am.
St. R. 56,19 L. R. A. 811.

? Julier v. Julier, 62 Ohio St. 90, 78 Am. St. R. 697; McCarthy ».
McCarthy, 143 N. Y. 235; Call v. Call, 65 Me. 407; Peck v. Peck, 113
Ind. 168.

* The following authorities will be found instructive on this point:
Burr v. Burr, 7 Hill (N. Y.), 207, 209, per Nelson, C..J.; Tumbleson v.
Tumbleson, 79 Ind. 558; Jones v. Jones, 95 Ala. 453; Cole v. Cole, 142
Ill. 19, 34 Am. St. R. 56, 19 L. R. A. 811; Campbell ». Campbell, 37
Wis. 206; Pauly v. Pauly, 69 Wis. 419. Agreements as to the amount
of alimony, entered into pending or after a decree of divorce will
usually be upheld unless they involve elements of collusion or fraud.
Upon this point, however, the decisions are far from harmonious, and
some courts deem such agreements entered into pendente lite contrary
ALIMONY 385

426. Final Division or Restoration of Property upon
Divorce.

Alimony proper, whether upon limited or absolute di-
vorce, is a personal obligation of the husband, which at
most can be made a lien upon his estate, or collected as a
debt, or enforced as a personal charge. In many states,
however, the divorcing court is expressly or impliedly
authorized to divide the property of husband and wife
and apportion it between them, divesting or confirming
titles as the equities and exigencies of the case may de-
mand.?

Where a judgment of this kind is made it resembles an
award of alimony in gross in that it is usually final after
term, and not subject to revision or change in the absence
of fraud or the like sufficient to warrant the opening, va-
cation or modification of judgments in ordinary cases.?
Under many statutes the court may grant alimony proper
in addition to a division of property.2 The principles and
considerations upon which courts have proceeded under
these statutes would be impossible of detailed treatment
here. It must suffice to say that the basis of division is
largely within the discretion of the court, due regard
being had to facts and circumstances identical with or
analogous to those that influence an award of alimony,
including the source from which the property came, and
the age, capacities, needs and conduct of the parties.‘
As against the claims of either party under such statutes,

to public policy and void. If made after decree they are usually
deemed unobjectionable, and so where they are disclosed to the court
and embodied in its decree. See Julier v. Julier, 62 Ohio St. 90, 78
Am. R. 697; Chapin ». Chapin, 1385 Mass. 393.

1See statutes in the several states. See also Calame v. Calame, 24
N. J. Eq. 441. As to power over separate property of wife not derived
from the husband, see Brenger v. Brenger, 142 Wis. 26.

2 Hopkins v. Hopkins, 40 Wis. 462; Bacon v. Bacon, 43 Wis. 197;
Petersine ». Thomas, 28 Ohio St. 596; Wright v. Wright, 7 Tex. 526.

3 Williams v. Williams, 36 Wis. 362; Donovan v. Donovan, 20 Wis.
586.
*See ante, sec. 425; Harran v. Harran, 85 Wis. 299.

25
386 ALIMONY

bona fide purchasers and creditors having specific liens
will of course be protected.*

ENFORCEMENT OF DECREES FOR ALIMONY

427. In General—Ex Parte and Foreign Decrees.

It is impossible to discuss in detail the enforcement of
decrees for alimony, as the practice differs more or less
in different states. An attachment for contempt is a
common method of enforcing the decree in this country.
In some states execution may be issued for installments
of alimony as they become due, in others debt will lie
upon the decree, and in others the remedy is by scire
facias.?

There are various other methods of securing payment
of alimony. In the majority of our states the court can
require the husband to give security for its payment, and
in some of them the decree is, or may be made, a lien
upon his lands, or his property may be sequestrated until
alimony is paid or secured. Conveyances made by him
for the purpose of defeating alimony may be set aside
as fraudulent, save as against bona fide purchasers for
value, and conveyances for that purpose pending suit
may be enjoined upon a showing that they are threat-
ened or contemplated. If the wife has reason to believe
that the husband is about to leave the state to avoid
payment of alimony, a writ of ne exeat may be issued in
most jurisdictions. Where the husband is in default in
paying alimony pendente lite, suit money or the like, his
petition may be struck out or his suit dismissed unless he
complies with the order of the court, or his answer will
sometimes be stricken out, though this last remedy is cau-
tiously applied.

If the divorce court has no jurisdiction of the hus-
band personally, as where he is not served with process

1Van Duzer ». Van Duzer, 6 Paige (N. Y.), 366, 31 Am. D. 257.
? See 2 Bish. Mar. Div. & Sep., sec. 1089; 2 Nels Div. & Sep., secs. 939
et seq.
ALIMONY 387

within the state and does not voluntarily appear, no
personal judgment for alimony costs or counsel fees can
be rendered against him.! Usually, however, a decree
may be entered upon constructive service that will bind
such property as he has within the state.’

If a valid personal judgment for alimony is rendered,
however, and the husband afterward leaves the state, it
becomes a question how far such decree can be enforced
in the jurisdiction to which he has removed. It is well
settled that where a decree in a divorce suit is a final
adjustment of the property rights of the parties, having
the force and effect of a judgment for a sum certain where
it was rendered, it may be enforced by an action at law
in another state; * and this is true though it is payable
by installments, provided no power to change it is re-
served to the court by statute or under the decree.‘

But where the decree, or part of it, is for alimony
proper, that is for periodical payments subject to be in-
creased or diminished at the discretion of the divorcing
court, much difficulty arises, and it has been held that
such a decree is not a judgment, and that no action will
lie upon it in another state, even for the recovery of in-
stallments already due.® But this rule is not everywhere

1 See ante, sec. 339, and cases cited; Smith ». Smith, 74 Vt. 20, 93
Am. St. R. 882; Moss v. Fitch, 212 Mo. 484, 126 Am. St. R. 568.

2 See Minor’s Confl. L., sec. 95, and cases cited; Rhoades v. Rhoades,
78 Neb. 495, 126 Am. St. R. 611; Hanscomb v. Hanscomb, 6 Col.
App. 97.

§ Kunze v. Kunze, 94 Wis. 54, 59 Am. St. R. 857; Lynde v. Lynde,
162 N. Y. 405, 48 L. R. A. 679, 76 Am. St. R. 332; Lynde ». Lynde,
181 U. 8. 183; Allen ». Allen, 100 Mass. 373; Dow ». Blake, 148 Il.
76, 39 Am. St. R. 156.

‘Page v. Page, 189 Mass. 85; Mayer v. Mayer, 54 Mich. 386, 129
Am. St. R. 477, 19 L. R. A. (N. 8.) 245; Livingston v. Livingston, 173
N. Y. 377, 61 L. R. A. 800, 93 Am. St. R. 600.

5 Barber v. Barber, 2 Pin. (Wis.) 297; Sistare v. Sistare, 80 Conn. 1,
125 Am. St. R. 102, and cases cited and discussed in thé opinion. See
also Bullock v. Bullock, 52 N. J. Eq. 561, 46 Am. St. R. 528, 27 L. R. A.
213. Bug see Sistare v. Sistare, 218 U. 8. 1, reversing the halding of
the Connecticut court so far as overdue installments of alimony were
388 ALIMONY

followed, and arrears of alimony due under decrees of
sister states are often enforced, if not at law, at least in
equity, even though such decrees are subject to future
control and modification by the divorcing court.’

While the federal courts have no inherent jurisdiction
to award alimony, they may take jurisdiction to enforce
the alimony decree of a state court, at least where it is
in the nature of a final judgment, and the husband and
wife at the time of suit for its enforcement have respec-
tively acquired domiciles in different states.”

428. Alimony Under Federal Bankruptcy Law.

Alimony awarded the wife while bankruptcy proceed-
ings are pending against her does not pass to her trustee.*
Neither is alimony a provable claim against the bank-
rupt husband’s estate, or barred by his discharge in
bankruptcy.‘

concerned, upon the ground that under the law of the state where the
decree was granted they were no longer within the control of the
divorcing court, and were hence within the protection of the full faith
and credit clause of the constitution.

1 Bullock v. Bullock, 57 N. J. Law, 508; Wagner ». Wagner, 26 R. I.
27, 65 L. R. A. 816; Dow ». Blake, 148 Ill. 76, 39 Am. St. R. 156;
Stewart v. Stewart, 27 W. Va. 167.

? Lynde »v. Lynde, 181 U.S. 183; Barber v. Barber, 21 How. (U. 8.)
582; Cheever v. Wilson, 76 U. S. 108; Knapp v. Knapp, 59 Fed. R.
641. Compare Barber v. Barber, 2 Pin. (Wis.) 297.

3 Bankruptcy Act of 1898, sec. 70; In re Le Claire, 124 Fed. 654.

‘ Loveland on Bankruptcy (2d Ed.), sec. 291. But see Arrington v.
Arrington, 131 N. Car. 143, 92 Am. St. R. 769, as to judgments for
alimony in gross.
CHAPTER XXXIV

WHEN DIVORCE DECREE TAKES EFFECT AND ITS STABILITY
—PROCEDURE AND EVIDENCE IN DIVORCE SUITS

429. When Divorce Decree Takes Effect.

In view of the fact that divorced parties are prone to
marry again with a promptitude sometimes startling, it
becomes important to know at what precise moment of
time a divorce decree takes effect, and how far such de-
cree is open to subsequent attack, direct or collateral.

Generally a divorce decree becomes binding from the
time it is pronounced.! It has been held in some states,
however, that an order for judgment of divorce is not
effective to dissolve the marriage tie until judgment has
been duly entered thereon,” but it has also been held that
where judgment of divorce has been ordered for the
plaintiff and nothing further remains to be done than for
the clerk to enter judgment in obedience to such direc-
tion, that the court may order the entry nunc pro tune
as of the date of such first order for judgment.’

430. Same—Decrees Nisi.

In England and a number of our states statutes pro-
vide for what is termed a decree nisi, which determines
that a cause for divorce exists, but does not dissolve the
marriage tie until, after a certain time, on motion of one
party or the other, there being no intervening cause to

1 Freem. on Judgments (4th Ed.), sec. 61; Cook’s Est., 77 Cal. 220,
11 Am. St. R. 267, 1 L. R. A. 567.

2 State v. Eaton, 85 Wis. 587, 39 Am. St. R. 867; Clark v. Cassidy,
64 Ga. 662.

’Zahorka v. Geith, 129 Wis. 498, apparently overruling State o.
Eaton, supra; Freem. on Judgments, supra.

389
390 DIVORCE DECREES

the contrary, it is made absolute. Statutes authorizing
these decrees are based upon the possibility of condona-
tion and reconciliation after cause for divorce has been
judicially found, or the discovery of fraud or collusion
in the meantime. Their benefits, however, are at least
partly counterbalanced by the fact that misapprehension
of the effect of the initial decree has led parties to con-
tract void second marriages, for until such decree has
been made absolute the prior marriage tie subsists,’ as
the absolute decree does not relate back to the date when
the decree nisi was rendered.’

FORCE AND STABILITY OF DIVORCE DECREE

431. Void and Voidable Decrees Distinguished.

A void divorce decree is a mere nullity and will be so held
and declared in any proceeding direct or collateral, be-
tween the parties thereto or between strangers.’ Void
decrees are usually such as are rendered wholly without
jurisdiction under rules already discussed.* A voidable
decree, on the other hand, is one that is binding until it is
vacated or set aside by the court on its own motion or

1Moors v. Moors, 121 Mass. 232; Pratt v. Pratt, 157 Mass. 503,
21 L. R. A. 97. The proposed uniform divorce law provides for de-
crees nisi to become absolute after one year, unless cause to the con-
trary be shown or the court orders an absolute decree in the meantime.
See ante, secs. 16, 17; Wis. Stat., secs. 3360k, 33601 (Laws of 1909).

2 For the English law on this subject, see Prole v. Soady, 3 Ch. App.
220. Mr. Nelson thinks it a better way to guard against hasty divorces
to substitute an absolute decree with a prohibition against marriage
with third persons within a certain period during which the parties
might become reconciled and remarry each other. 2 Nels. Div. &
Sep., sec. 1021. But in view of what has been said as to remarriage
in another state in the face of local prohibitions, this last plan, in the
present state of the law, seems hardly better than the decree nisi. See
ante, sec. 103.

§ Miltimore v. Miltimore, 40 Pa. 151; In re Christianson, 17 Utah,
412, 70 Am. St. R. 794, 41 L. R. A. 504; Edson ». Edson, 108 Mass.
590, 11 Am. R. 393.

‘In re Christianson, supra; ante, sec. 333.
DIVORCE DECREES 391

upon application of one of the parties thereto, and which
is not open to collateral attack, unless, perhaps, the prop-
erty rights of third persons are directly affected thereby.

Fraud or collusion are common grounds for treating a
divorce decree as voidable. Mere error or irregularity
is not a ground for collateral attack provided the court
had jurisdiction over the parties and the subject-matter.!

432. Same—Annulment of Decree for Fraud—Col-
lateral Attack.

A decree of divorce fraudulently obtained is always
voidable at the suit of the innocent party.? Such party,
however, can only attack it directly, unless the fraud was
such as to affect the jurisdiction.’

Though remarriage of the defrauding party does not
prevent the decree from being set aside, delay after the
facts are or might have been known, will debar the inno-
cent party from relief, particularly where the guilty one
has taken a husband or wife in the meantime who was
ignorant of the fraud, and a fortiori where there is issue of
the second marriage which might be bastardized.* This
appears to be the settled rule where the parties have been
guilty of fraud amounting to collusion and one of them
has subsequently married an innocent person.’ This is
probably the rule though neither party has remarried, pro-
vided they are in pari delicto, and the collusive decree
will stand as between the parties unless the court sees fit

1See Newman’s Est., 75 Cal. 213, 7 Am. St. R. 146.

2 Adams v, Adams, 51 N. H. 388, 12 Am. R. 134, and authorities
cited; Edson v. Edson, supra.

3 Kinnear v. Kinnear, 45 N. Y. 535, 6 Am. R. 132. But see as for-
bidding collateral impeachment by showing want of required resi-
dence, McNeil’s Est., 100 Pac. 1086.

42 Bish. Mar. Div. & Sep., secs. 1533-35; Nicholson v. Nicholson,
113 Ind. 131; Maher v. Title, etc., Co., 95 Ill. App. 365. See also
Estate of Richardson, 132 Pa. 292.

6 Karren v. Karren, 25 Utah, 87, 95 Am. St. R. 815, 60 L. R. A. 294;
Greene v. Greene, 2 Gray (Mass.), 861, 61 Am. D. 454, and note.
392 DIVORCE DECREES

to vacate it on its own motion.! But this doctrine is ap-
plied with caution, at least against the wife, who may her-
self be coerced or deceived into becoming a party to a
fraud upon the court; ? and where the injured party to the
fraudulent decree is innocent of wrongdoing and applies
for relief promptly upon discovering the fraud, the fact
that the guilty party has married again and even had issue
by such second marriage will not deter the court from
setting the decree aside.®

Death of the guilty party does not prevent the inno-
cent one from having a fraudulent divorce decree reversed
or set aside, where property rights or interests are in-
volved.* Care should be taken in such cases, however,
to join as defendants the heirs of the decedent and all
other parties whose interests would be affected by the
proceeding.*®

433. Same——Nature of Fraud.

The nature of the fraud for which a court of equity will
set aside a judgment or decree, whether of divorce or
otherwise, has not been uniformly determined. By the
weight of authority, in the absence of statute, it must be
in the showing of jurisdictional facts, or in preventing a
defense, and not merely in perjury as to the cause of ac-
tion committed at the trial.6 Some cases, however, ap-

12 Nels. Div. & Sep., sec. 1055, and cases above; In re Ellis’s Est.,
55 Minn. 401, 48 Am. St. R. 514, 23 L. R. A. 287.

2 Daniels ». Benedict, 50 Fed. 347; Olmstead ». Olmstead, 41 Minn.
297.

3 Allen ». Maclellan, 12 Pa. 328, 51 Am. D. 608; Webster v. Webster,
54 Ia. 153; Crouch v. Crouch, 30 Wis. 667.

‘Johnson v. Coleman, 23 Wis. 452, 99 Am. D. 193; Lawrence 2.
Nelson, 113 Ia. 277, 57 L. R. A. 583, and notes. And see post, next sec.

* Johnson v. Coleman, supra.

61 Bigelow on Fr., 86, 90; U. S. ». Throckmorton, 98 U. 8. 68;
Boring ». Oit, 188 Wis. 260, 19 L. R. A. (N. 8.) 1080; Pico ». Cohn, 91
Cal. 129, 13 L. R. A. 336, and other cases cited in the note thereto in
25 Am. St. R. 165; Zeitlin v. Zeitlin, 202 Mass. 205, 132 Am. St. R.
490, 23 L. R. A. (N. 8.) 569; Graves v. Graves, 132 Ia. 199, 10 L. R.A.
PLEADING IN DIVORCE 393

pear to hold that false testimony as to the cause of ac-
tion is sufficient.! In some jurisdictions the right to set
aside a divorce decree after a given time is foreclosed by
statutes.

As the law presumes against fraud, the evidence in a
proceeding to vacate a divorce decree on that ground
must be clear and convincing.”

434. Rights of Third Persons as to Fraudulent Decree.

While both parties to a fraudulent divorce decree live,
it can be questioned only by the party defrauded or the
state. After the death of one or both parties, however,
heirs or other third persons having an interest are generally
permitted to have the decree vacated or annulled on
appeal or otherwise, not for the purpose of continuing
the controversy as to the right to divorce within itself,
but to prevent property from being diverted into channels
where it does not rightfully belong.

THE PLEADINGS AND PROCEDURE

436. Essential Allegations.

It is not the purpose here to discuss in detail the plead-
ings in actions for divorce. All jurisdictional facts, includ-
ing the fact of residence required by law, should be alleged
in the libel or complaint, and in the absence of such allega-
tions it should be dismissed. In fact it has been held
that a decree without such allegations in the bill is void.+

(N. S.) 225, and note; Greene v. Greene, 2 Gray (Mass.), 361, 61 Am.
D. 454; Colby ». Colby, 59 Minn. 432, 50 Am. St. R. 420.

1See Nicholson v. Nicholson, 113 Ind. 131; Whitcomb v. Whitcomb,
46 Ia. 437; Hard ». Hard, 51 Neb. 412; Miller v. Miller, 69 Neb. 441.

2 Getcher v. Getcher, 51 Md. 187; Boring v. Ott, 138 Wis. 260, 19
L. R. A. (N. 8.) 1080.

? Nickerson v. Nickerson, 34 Oreg. 1; Lawrence v. Nelson, 113 Ia.
277, and note thereto in 57 L. R. A. 583; Wood v. Wood, 136 Ia. 128,
125 Am. St. R. 223, 12 L. R. A. (N. 8.) 891. But see Dwyer v. Nolan,
40 Wash. 459, 1 L. R. A. (N.S.) 551, 111 Am. St. R. 919.

*Rumping v. Rumping, 36 Mont. 39, 12 L. R. A. (N. 8.) 1197, and
394 PLEADING IN DIVORCE

The marriage of the parties, being essential to divorce,
must be alleged.

Usually several causes of action may be joined in the
same petition.

In adultery it is sufficient to allege that the defendant
“committed adultery,” though there must be such further
allegations of time, place and particeps criminis, if the
identity of the latter is known, as will give the defendant
reasonable notice of the charge he is called upon to meet.'

In cruelty the offense should first be generally alleged
in the statutory terms, together with such acts, neglect
or course of conduct as, when proved, will be sufficient
to constitute the offense, stating time, place and circum-
stances with such particularity as will fairly enable the
defendant to meet the charge. Ordinarily the effect of
the cruelty as impairing the plaintiff’s health, or as en-
dangering life, health or reason must be stated. It is
proper, though perhaps not necessary, to state that be-
cause of the cruelty alleged the plaintiff has been forced
to separate from the defendant.

In desertion the allegation should follow the statutory
terms, as by using the terms ‘‘willfully” or “‘obstinately,”’
if they are contained in the statute, or their equivalents,
and must show that the desertion continued for the statu-
tory time.

Generally in actions for divorce, defenses need not be
anticipated or negatived in the complaint, unless statutes
or court rules expressly requires it. It is the duty of the
defendant to plead them, however, and if he fails to allege
such defenses as connivance, collusion, recrimination and
condonation, he has no absolute right to give evidence of
them. On the theory, however, that the public is a party
to every divorce suit, if the suspicions of the court are
note. Complaint without such allegation held fatally defective in
Keller v. Keller (Mo., 1910), 129 S. W. 492.

1 See 2 Bish. Mar. Div. & Sep., secs. 1325 et seq.; 1 Nels. Div. & Sep.,

secs. 177 et seq.; Miller v. Miller, 20 N. J. Eq. 216; Washburn ». Wash-
burn, 5 N. H. 195.
PLEADING IN DIVORCE 395

fairly aroused that any of these defenses exist, it may and
should admit evidence of them on such terms as will per-
mit the plaintiff to meet it if he can.!

436. The Procedure.

The procedure in divorce suits as in other actions nat-
urally varies in the different states, depending, among
other things, upon whether the divorce court is one of
common law or equity jurisdiction. Usually the power to
grant divorce is conferred upon courts having equity
powers. In such courts, at least, the issues may be tried
by the court without a jury, unless the statutes otherwise
provide, and the issue may usually be referred to a master
as in other equity suits, though in some states this prac-
tice is forbidden by statute.?

437. Rights of Particeps Criminis.

Generally, where divorce is sought for adultery, the
alleged particeps criminis has no strict right to intervene
and be heard in defense of his or her good name, which
is, of course, directly assailed. This defect in the law
has been remedied in some states by statute or rule of
court.4

438. Abatement of Divorce Actions.

A divorce suit necessarily abates with the death of
either party. So far as concerns the marriage status,
that has been determined by death itself, and the unsuc-
cessful party will not be permitted to prosecute an appeal

1See 2 Bish. Mar. Div. & Sep., secs. 619 et seq.; Tillison v. Tillison,
63 Vt. 411.

2 The uniform divorce law proposed by the American Divorce Con-
gress, 1906, provides, with seeming wisdom, that “All hearings and
trials shall be had before the court and not before a master, referee or
any other delegated representative, and shall in all cases be public.”
See post, sec. 440, note, for a practice dictated by a similar policy.

3 Clay v. Clay, 21 Hun (N. Y.), 609.

4See Mass. Rev. Laws, Chap. 152, sec. 9; Wis. Stat. (1909), sec.
2360f.
396 EVIDENCE IN DIVORCE

or to have the decree set aside for mere reasons of senti-
ment or curiosity. Where property rights or interests
are involved, however, the right to sue out a writ of error
or prosecute an appeal, or to have the decree reversed or
vacated for fraud, or other adequate cause, is generally
recognized.

THE EVIDENCE IN DIVORCE SUITS

439. In General.

While the matters appropriate to this title cannot be
adequately treated of in an elementary work much further
than has incidentally been done, some general observa-
tions upon the evidence in divorce suits may not be out
of place.

440. The Evidence—Necessity for Proof.

It has often been said that a divorce suit is a triangular
proceeding. It involves not only the plaintiff and de-
fendant, but the state, whose welfare demands that the
marriage tie be severed only where the existence of due
cause for divorce is judicially ascertained. A decree of
divorce, therefore, cannot be taken strictly by default
or pro confesso, but only upon satisfactory proof, duly
made, that the statutory grounds for a decree exist, and
in the absence of it a decree must be denied.?

The proof should, of course, include the jurisdictional
fact of residence. The fact of marriage must be proved,
for if there is no marriage there can be no divorce. The
proof of marriage is the same here as in other civil actions.*

1See Downer v. Howard, 44 Wis. 82; Barney v. Barney, 14 Ia. 189,
note to Lawrence v. Nelson, in 57 L. R. A. 583; Chatterton ». Chatter-
ton, 231 Ill. 449, 121 Am. St. R. 339.

22 Bish. Mar. Div. & Sep., secs. 480 et seq.; 2 Nels. Div. & Sep.,
sec. 775. That a nullity suit is of the same general nature see Freda
». Bergman (N. J., 1910), 76 Atl. 460. It is sometimes provided that
the public prosecutor or other public officer shall appear in all divorce
suits, or in such as are undefended, for the purpose of safeguarding the
interests of the state. Such statutes exist in Georgia, Indiana, Michi-

gan, Oregon, Wisconsin and probably some other states.
3 White v. White, 82 Cal. 427, 7 L. R. A. 799, and note.
EVIDENCE IN DIVORCE 397

441. The Witnesses.

In most states by statutes either party is a competent
witness against the other in a divorce action,! save that
in many states neither spouse will be permitted to dis-
close the confidential communications of the other,? and in
some neither party will be permitted to testify against
the other as to the fact of adultery, and in several neither
spouse is competent to prove non-access by the husband,
though competent generally in other respects. Further-
more, testimony of certain classes of witnesses, though
competent in the absence of statute, is naturally viewed
with suspicion. Young children, servants, hired detectives
and prostitutes are within this rule.*

442. Weight and Sufficiency of Evidence.

The rule of other civil actions that findings must follow
the preponderance of the evidence is generally applicable
to divorce suits, and even though adultery or other crime
is charged it need not be proved beyond a reasonable
doubt, as it must in criminal cases. The presumption
in favor of innocence must be fairly overcome, however,
by competent evidence actually adduced, and in propor-
tion that the charge is grave and its consequences are
disgraceful, the proof must be clear and convincing.®

While a few courts appear never to grant divorce upon
the uncorroborated testimony of either party alone, in-
cluding his or her uncorroborated confessions in or out of
court,® other courts recognize no absolute rule forbidding

1 See ante, sec. 163.

2 See ante, sec. 164; Smith ». Smith, 77 Ind. 80.

4 Carson’ v. Carson, 44 N. H. 587, and authorities cited. See post,
sec. 459, as to the issue of legitimacy.

4See Moeller ». Moeller, 115 N. Y. 466; Kneale v. Kneale, 28 Mich.
344; Crowner v. Crowner, 44 Mich. 180, 38 Am. R. 245.

5 See 2 Bish. Mar. Div. & Sep., secs. 762 et seq.; Loveden v. Loveden,
2 Hagg. Con. 2; Poertner v. Poertner, 66 Wis. 644, and authorities
cited; Lenning v. Lenning, 176 Ill. 180; Thayer v. Thayer, 101 Mass.
111, 100 Am. D. 110.

6 Shafto v. Shafto, 28 N. J. Eq. 34. See statutes or rules of court in
some states. See also 3 Wigm. Ev., sec. 2067.
398 EVIDENCE IN DIVORCE

it, though they will act with caution and reluctance or
refuse a divorce where there is a denial by the defendant
and no corroboration of the plaintiff, or of the defendant’s
testimony or confession, or even where there is no denial,
if there seems no good reason why corroborative testi-
mony could not have been adduced, or the circumstances
point toward collusion or fraud.'

443. Same—Specific Issues—Adultery.

Adultery is an offense that seeks darkness and secrecy,
and the parties are rarely surprised in the act. The evi-
dence, therefore, is often circumstantial, but may never-
theless be amply sufficient. For example, if it is shown
that the husband has been wholly absent from the wife
for a year, and she then gives birth to a child, her adultery
is proven.” Usually, however, the evidence amounts less
clearly to absolute demonstration, and a common formula
is that the adulterous inclinations of the alleged guilty
parties toward one another being proved, together with
the opportunity for their indulgence, the inference of
adultery is a fair conclusion. But the formula should be
applied with caution, for neither party may have known
the other’s feelings, or the health of one party may have
precluded the offense.* The visiting of a bawdyhouse
by one who has no legitimate business there raises a pre-
sumption of adultery, for, as is often observed, ‘‘one
does not go to such a place to say his paternoster.” 4
Yet such visits may be explained, as by showing that they

1S8ee F. ». D., 4 Sw. & Tr. 86, 1 Sw. & Tr. 362, 365, 393; Cummins 2.
Cummins, 47 Neb. 872; Robbins v. Robbins, 100 Mass. 150, 97 Am. D.
91; Flattery v. Flattery, 88 Pa. 27; Rosecrance v. Rosecrance, 127 Mich.
322; Billings v. Billings, 11 Pick. (Mass.) 461.

2 Com. v. Shepherd, 6 Binn. (Pa.) 286, 6 Am. D. 449.

3See Freeman v. Freeman, 31 Wis. 235, and authorities cited;
Hurtzig ». Hurtzig, 44 N. J. Eq. 329; McDermott ». McDermott, 13
Ohio St. 332, 82 Am. D. 444.

4 Loveden v. Loveden, 2 Hagg. Con. 1, 4 Eng. Ecc. 461; Matchin »v.
Matchin, 6 Pa. 332, 47 Am. D. 466; Cooke v. Cooke, 152 Ill. 286.
EVIDENCE IN DIVORCE 399

were in the course of professional or clerical duty, or
were prompted by motives of philanthropy,! or were due
to error as to the character of the place.2- That the de-
fendant contracted a polygamous marriage is prima facie
evidence of adultery, provided there is proof of actual
living with the second spouse for however short a time.®

Though evidence that the defendant was afflicted with
venereal disease is usually competent and relevant, its
weight must depend upon the circumstances of the case.*

444. Same—Cruelty.

While divorce can be granted only for such acts of
cruelty as are pleaded, other similar acts may usually
be shown in explanation or aggravation of those actually
charged.®

445. Same—Desertion.

There must be proof, direct or circumstantial,® not only
of the fact of separation during the statutory time, but
that such separation was not with the plaintiff’s consent,
and according to some cases, without sufficient cause.’
But it is held by some courts that wrongful conduct
of the plaintiff justifying willful separation will not be
presumed, and the burden of showing it is upon the
defendant.®

1 See Cocci v. Cocci, 26 Eng. L. & Eq. 604, 1 Spink, 121.

2 Crane v. Crane, 39 N. J. Eq. 148.

: Masten v. Masten, 15 N. H. 159.

4See Popkin v. Popkin, 1 Hagg. Ecc. 765, 767; Johnson v. Johnson,
14 Wend. (N. Y.) 637; Mack v. Handy, 39 La. 491.

*Folmar v. Folmar, 69 Ala. 84; Coursey v. Coursey, 60 IIl. 186;
Barnsdall ». Barnsdall, 171 Pa. 625; Lee v. Lee, 3 Wash. 236.

6 See Gregory v. Pierce, 4 Met. (Mass.) 478.

7See Jennings v. Jennings, 2 Beasley, 38; Benkert v. Benkert, 32
Cal. 468; Cornish ». Cornish, 23 N. J. Eq. 208; Gray v. Gray, 15 Ala.
779. See also ante, sec. 367.

®See Morrison v. Morrison, 20 Cal. 431; Packard »v. Packard, 90
Ta. 765; Willson v. Willson, 12 Ky. L. 987; Hall ». Hall, 4 Allen
(Mass.), 39.
400 EVIDENCE IN DIVORCE

When legal desertion is once shown to have commenced,
it will be presumed to have continued, in the absence of
evidence of a reconciliation or an offer to return, or sub-
sequent assent of the deserted party to the continuance
of the separation.!

1 See Ford v. Ford, 143 Mass. 577; Hall v. Hall, 4 Allen (Mass.), 39;
Prather v. Prather, 26 Kan. 273.
CHAPTER XXXV

CUSTODY AND SUPPORT OF CHILDREN—-PENDING AND AFTER
DIVORCE

446. Custody in General— Jurisdiction.

The general rules governing the custody of infants are
later discussed.1. Naturally in divorce cases, however,
the custody of minor children pending, and after the
decree, is often the subject of most strenuous and bitter
contention. Though the English ecclesiastical courts
had power to grant divorce a mensa et thoro, they had no
jurisdiction to determine the custody of children.?. This
latter was in the court of chancery, as elsewhere explained.?
It follows from this that if statutes confer divorce juris-
diction upon courts having general equity powers, they
may, without express authority, determine the custody
of children in divorce suits; ‘ otherwise it seems that
power to do so must flow from express legislation.’ These
questions, however, can seldom be of practical importance
with us, for the statutes generally confer upon courts
authorized to grant divorces ample authority to provide
for the custody and support of minor children, both pend-
ing the action and upon and after divorce. And this is,

1See post, secs. 479 et seq.

2 Smith +. Smith, 2 Phillm. 152, 1 Eng. Ecc. 220; Greenhill v. Green
hill, 1 Curt. Ecc. 462, 6 Eng. Ecc. 376.

2 See post, secs. 479, 480, 628. By statute in England, jurisdiction
over divorce and its natural incidents, including custody of children,
is now vested generally in the divorce court. Stat. 20 & 21 Vict.,
Chap. 85, sec. 35.

42 Story’s Eq., sec. 1353; In re Morgan, 117 Mo. 249; Snover v.
Snover, 10 N. J. Eq. 261.

5 Matter of De Angelis, 1 Edm. Sel. Cas. (N. Y.) 476.

26 401
402 CUSTODY OF CHILDREN IN DIVORCE

of course, the only rational plan, for the divorcing court,
having the parties and their circumstances and misdoings,
and their virtues, if any, before it, is usually in a position
to make the most intelligent selection of a custodian in
the interests of justice and the welfare of the child.

Where the child whose custody is sought in a divorce
action is a non-resident of the divorcing state, and there
has been no personal service upon the defendant within it,
the court has no jurisdiction to make any order or judg-
ment concerning its custody or support.1_ But where the
court has jurisdiction of both spouses, its judgment con-
cerning the custody and support of children doubtless
binds the parents personally there, though. the children
are in another jurisdiction.? The courts of the latter place,
however, may still deal with the children in such manner
as their interests may require.*

447. Rules as to Custody Pendente Lite.

Ordinarily the party having the custody of dhilaven a
the commencement of the suit will be permitted to retain
it pending the action, the other party, in the absence of
cogent reasons to the contrary, being permitted reasonable
access to them from time to time.‘ But upon application
and proper showing, the custody pendente lite may. be
awarded to the party petitioning therefor, or otherwise
disposed of as the exigencies of the case may demand. i
Upon such an application, however, the court will not,

1 De La Montanya v. De La Montanya, 112 Cal. 101, 53 Am. St. R.
165, 32 L. R. A. 82; Kline ». Kline, 57 Ia. 386, 42 Am. R. 47. The
rule is otherwise as to children within the state. Wakefield ». Ives,
35 Ia. 238.

? Avery v. Avery, 33 Kan. 1, 52 Am. R. 523; State ». Rhoades, 29
Wash. 61.

* Minor’s Confl. L., sec. 96. Compare 2 Bish. Mar. Div. & Sep.,
sec. 1189; Kentzler v. Kentzler, 3 Wash. St. 166, 28 Am. St. R. 21;
In re Boot, 25 Kan. 308, 37 Am. R. 255. See post, sec. 743.

‘ Day v. Day, 4 Mise. Rep. (N. Y.) 235; In re Morgan, 117 Mo. 249;
Gilpin v. Gilpin, 12 Col. 502.

* Foss », Foss, 100 Ill. 576; Day v. Day, supra.
CUSTODY OF CHILDREN IN DIVORCE 403

as a rule, go into the merits of the one case in advance
further than is necessary to enable it to act intelligently
in the interest of the infants concerned. 1 And where a
court having jurisdiction of the divorce suit is entertaining
an application or las made an order touching the disposi-
tion of children, other courts cannot, ; as a rule, interfere
by habeas corpus or r otherwise. 2

448. Custody on and After Divorce. ~~ * 9°83

-On ‘and -after divorce the ey power of the
divorcing court: as to the’ custody of minor children is,
under most statutes, practically unlimited. “Its discretion,
however, is a judicial one; and ‘its manifest: ‘abuse will De
coerce | on appeal.* a = fe Oe
extent the paramount vight of the father to the cilstedly
of infant children somewhat as at common law,‘ by the
weight of authority the rights of the parties are and should
be deemed equal.® In any Ci €, thé abstract rights of
either parent must yield” ‘to th “manifest welfare of the
child, ‘which is the paramount consideration. 6 “And gen-
erally, if not ‘iniversally, courts having jurisdiction | to
award custody of children upon divorce may change their
custody from time to time to meet changed circumstances
as they arise, due regard being’ always had to the sub-
stantial interests of the. child. y

   

1 Ryder'v. ‘Ryder, 2 Sw. & Tr. 225; Day v0. ‘Day, supra.’ ek
- 2§ee In re ‘Delano, 37 Mo. App: “185; Nicholls ; it , Nicholls, 3 Duer
(N. Y.), 642. ei

Cohn 2. ‘Scott; 231 Ill: 556, 121 Am. St. R. 342. ee

+See State v. Giroux, 19 Mont. 149; “Welch », Welch, 33 Wis. 534.

51 Bish. Mar. Div. & Sep., sec. 1190; Giles 9. Giles, 30 Neb. 624;
Green v. Green, 52 Ia. 403; Hewett v. Long, 76 Ill. 399; ‘Lyle v. Lyle,
86 Tenn. 372.
- 6 Umlauf o.°Umlauf, 128 Ill. 378; ‘Kreutzler v. Kreutzler, 3 Wash.
166, 28 Am. St:R.-21; In re Bort, 25 Kan. 308, 37 Am. R. 256, and
cases throughout this section? post, seés. 479 et seq.

*Karren v. Karren, 25 Utah, 87,95 Am. R. St. 815, 60.L. R. A. 294;
Harvey. v. Lane, 66 Me. 536; Teter v. Teter, 88 Ind. 494; ‘Oliver v%,
404 CUSTODY OF CHILDREN IN DIVORCE

Usually custody will be awarded to the innocent and
prevailing party, unless his or her unfitness for the trust
is shown, for such party not only has the best equity, but
is commonly the best custodian in the interest of the child.
Contrary to the older rule, however, the custody of a
child of tender years will be awarded to the mother, at
least for the time being, even though she has been ce
judged an adulteress, for, as has been aptly observed, ‘
child at breast needs a mother’ 8 milk more than aide
example; ” ? and so of an older child who is in such delicate
health as to need a mother’s care and ministrations.?

The court may consult the wishes of the child if iti is old
enough to entertain and express any intelligent preference. :

Agreements between the parties as to custody should
be respected, but only where they are not inimical to the
interests of the child.*

449. May Custody Be Given Third Party.

If it develops that neither party to the divorce action
is a fit custodian for a minor child, but not otherwise, its
custody may, by most authorities, be awarded to a third
person in the divorce action itself.®

Oliver, 151 Mass. 349. See also Helden v. Helden, 7 Wis. 296, as to
facts discovered since the decree. .

1 Skinner v. Skinner, 13 P. D. 90; Uhlmann v. Uhlmann, 17 Abb. N.
Cas. 236; Kremelberg v. Kremelberg, 52 Md. 553; Owens v. Owens, 96
Va. 191; Lambert v. Lambert, 16 Oreg. 486; Horning v. Horning, 107
Mich. 587; Carr v. Carr, 22 Gratt. (Va.) 168; Ahrenfeld ». Ahrenfeld,
4 Sandf. Ch. (N. Y.) 493; ; Pauly v Pauly, 69 Wis. 419.

? 1 Bish. Mar. Div. & Ben. . Sec. 1202; Umlauf », Umlauf, 128 Ill. 378;
Haskell v. Haskell, 152 Mass. 16. Children, of seven or eight held to
be of tender years under this principle. Miner ». Miner, 11 Ill. 43;
Klein ». Klein, 47 Mich. 518.

2 Reeves v. Reeves, 75 Ind. 342.

*Umlauf ». Umlauf,, 128 Ill. 378; Horning 2, Horning, 107 Mich.
587; Coffee v. Black, 82 Va. 567; English ». English, 32 .N. J. Eq. 728.

5 Kremelburg ». Kramelbnes. 52 Md. 553; White v. White, 75 Ia. 218;
Cook v. Cook, 1 Barb. Ch. (N. Y.) 639; Johnson ». Terry, 34 Conn. 259.

6 Farrar v. Farrar, 75 Ia. 125; Adama v Adams, 1 Duv. (Ky.) 167;
Lambert ». Lambert, 16 Oreg. 485; Rice v. Rice, 21 Tex. 58. Contra,
SUPPORT OF CHILDREN IN DIVORCE 405

450. Access of Parent—Removal From State.

The party debarred of custody. of children upon or after
divorce is entitled, it seems, to have access to ‘them at
reasonable times and places, unless the decree expressly
forbids it in the interest of the child. 1 It is probably wise
practice, however, in cases where access is not absolutely
denied to provide for it in the decree.

Where access is expressly allowed, or the custody is
liable to be changed by subsequent order or decree, the
custodian may in most cases be forbidden to take the
child out of the state, unless such removal i is reasonably
likely to redound to its good; ‘2 and where the need is
fairly apparent, the court in awarding the custody of
children no doubt has power to require security that
they will not be removed from the jurisdiction, or that
they will be produced therein i in ‘court responsive to ‘its
order.?

451. Custody Where Divorce Denied.

Under statutes, but not otherwise it seems, the court
in which divorce is sought may fix the custody of children
in the divorce action, though divorce is denied.* :

452. Support of Children After Divorce.

Where the custody of children is awarded to the husband
upon divoree, he is clearly liable for their maintenance and
education. If their custody is awarded to the mother and
an allowance is decreed against the father for their support
and education and is paid, his liability for their mainte-
nance is at an end. If the mother is awarded their cus-
tody, however, and nothing is allowed her for their support
and training, one line of authorities holds that the husband
J. F.C. v. M. E., 6 Rob. (La.) 185; McCabe v. McCabe, 126 Wis. 154.
The law of this last case is changed by sec. 3, Chap. 323, Laws of 1909.

1 Burge v. Burge, 88 Ill. 164; Umlauf ». Umlauf, 128 Ill. 378.

* Miner v. Miner, 11 Ill. 43; Campbell ». Campbell, 37 Wis. 206.

3 Deringer v. Deringer, 10 Phila. 190. Compare Stetson v. Stetson,

80 Me. 483.
4 Davis v. Davis, 75 N. Y. 221; Luck v. Luck, 92 Cal. 653.
406 SUPPORT OF CHILDREN IN DIVORCE

is liable quasi ex contractu to’ the same extent’as if no di-
vorée had intervened, even though alimony is awarded ‘to
the wife.t Other authorities hold, however, that a father
deprived of the custody of his minor children by divorce is
not liable for their support and education, at least in the ab-
sence of a special contract on his part, and that the proper
remedy is an application to the divorce court for an allow-
ance for their support if its decree was silent on that point,”
and this would doubtless be the rule where the wife was
guilty of misconduct upon which the divorce was granted,
so far, at least, as any right of the mother is concerned.’ 2

Where a divorce has been granted and no decree has
been made as’to either custody or support of minor chil-
dren, but the father suffers them to remain with the
nigther, he is liable to her for their ‘support to the same
extent and in the same manner that he would Be | te a
stranger.*

1 Pretzinger v. Pretzinger, 45 Ohio St. 452, 4 Am. St: R.-542; Stanton
v. Wilson,'3 Day (Conn.), 37, 3 Am. D. 255;-Plaster ». Plaster, 47 Til.
290; Burritt». Burritt, 29 Barb. (N. Y.) 124.. :

2 Hall ». Green, 87-Me. 122, 47 Am. St. R. 311, and note; Brown dv.
Brightman, 136 Mass. 187.

3 Fulton v. Fulton, 52 Ohio St. 229, 49 Am. St. R. 720, 29 L. R. A.
678, distinguishing Pretzinger ». Pretzinger, supra. —

4 His liability in many states would be upon quasi contract. Post,
sec. 493; Gilley 2. Gilley, 79 Me. 292, 1-Am: St. R. 307. See also
Zilley ». Thimaidie, 98: Wis..428, 40 L. R. A. 579, 67 Am. St. R. 820.
In others the seothen may recover only upon the basis of an express
promise or one implied in fact. Ramsey ». Ramsey, 121 Ind. 215,
6 L. R. A. 682; post, sec. 491. :
CHAPTER XXXVI

PARENT AND CHILD—LEGITIMACY, ILLEGITIMACY AND
ADOPTION

453. Parent and Child Defined. _

The term parent means normally the father or mother
of an individual,! though in special cases it may be differ-
ently construed. Thus, parents in-a-will may mean grand-
parents,” adoptive parents, or even those who are in a legal
sense strangers to the testator, if they ‘were called and
recognized as parents by him. ie :

Child normally and primarily means a tatiana child,
or legitimate offspring in the first degree. But this con-
struction may be varied. Thus, if one ‘never married”
makes a will in favor of his children; his illegitimate -chil- -
dren will take.? So the term child may inelude a child:
en ventre sa mere. In fact it is quite generally held that
a child is legally in esse from the time of conception for
the purpose of taking (and hence transmitting) any estate
which is for its-benefit, whether by descent, ‘devise, or
under the statute of distributions, provided, however,
that it be born alive after ‘such period of fetal existence
that its continuance in life may be reasonably. expected. se
A devise or bequest to children as a class will include an
unborn child unless it clearly appears to-be the intention
that such child shall not take.® But though avchild is

1 Smith’s Exrs. v. Smith, 65 Ky. 620, 625. = 2a
2 Ralph ». Carrick, 11-Ch. Div. 873, 48 L. Jour. 801. ;

3 Heath v. Heath, 114 N. Car. 547; Will of Scholl; 100-Wis. 650.. A;
to adopted children, see post, sec. 468. a
4 Harper v. Archer, 4 Smed. & M. (Miss.) 99, ‘and notes in 43 Am. D.

472; Deal v. Sexton, 144 N. Car. 157, 119 Am, St. R. 943, and notes.
5 Sehiouler on Wills (2d Ed.), sec. 532; Laird’s Appeal, 85 Pa. 339;

407
408 ILLEGITIMATE CHILDREN

thus deemed in esse from the moment of conception for
the purpose of receiving a benefit, it has been held that
a child cannot recover for injuries inflicted upon it while
en ventre sa mere, as when the mother suffers from as-
sault or negligence.1 A child en ventre sa mere, however,
has been held entitled to the benefit of a statute creating
a cause of action in favor of children for the death of the
father by wrongful act.’

LEGITIMATES AND BASTARDS DISTINGUISHED—STATUS
OF BASTARDS

454. In General.

The common law makes a broad and brutal distinction
between legitimate children and illegitimates or bastards.
The rights of the former are many; the rights of the latter
arefew. Legitimacy and illegitimacy, like marriage or citi-
zenship, are commonly said to involve status, and this
status, once fixed, usually accompanies the individual wher-
ever he goes. At common law the status of a child born
legitimate or subsequently legitimated never changes,’
with the single exception of the child of a voidable mar-
riage which has been duly avoided in the lifetime of its
parents. The status of an illegitimate child, however,

Hall ». Hancock, 15 Pick. (Mass.) 255, 26 Am. D. 598. As to the
rights of posthumous children, or those born after their father’s death,
where no provision is made for them in his will, see ante, sec. 302.

1 Dietrich v. Northampton, 188 Mass. 14, 52 Am. R. 242; Allaire »v.
St. Luke’s Hospital, 184 Ill. 359, 75 Am. St. R. 176, 48 L. R. A. 225.
See Gorman v. Budlong, 23 R. I. 169, 91 Am. St. R. 629, 55 L. R. A. 118.

2 Nelson v. Galveston, etc., Ry. Co., 78 Tex. 621, 22 Am. St. R. 81,
11 L. R. A. 391; Texas, etc., Ry. Co. ». Robertson, 82 Tex. 657, 27
Am. St. R. 929. And see Danbert ». Western Meat Co., 139 Cal. 480,
96 Am. St. R. 154, and note in 57 Cent. L. Jour. 462. As to the status
of unborn children with respect to judicial proceedings see Knott ».
Stearns, 91 U. 8. 638; Deal v. Sexton, 144 N. Car. 157, and note to that
case in 119 Am. St. R. 953.

3 See Brock v. State, 85 Ind. 397.

4 See post; next section.
ILLEGITIMATE CHILDREN 409

may sometimes be changed to that of legitimacy, as will
be presently explained.!

455. What Children Are Legitimate.

A legitimate child at common law was one begotten by
a father and born of a mother who were lawfully married
when it was begotten, or when it was born, or at some in-
tervening period. All other children were bastards and
were not legitimated ‘by the subsequent intermarriage of
their parents, whether followed by an acknowledgment of
their legitimacy or not. ‘The status of illegitimacy was
indelible to everything save an act of Parliament.?

A child born after divorce is presumptively the child of
the divorced husband and hence legitimate, unless born
so long after divorce that it could not in ordinary course
of nature have been begotten during the marriage, when
it is of course a bastard. A child begotten before mar-
riage and born after divorce or the death of the husband
is presumptively legitimate.‘ :

Children of a marriage deemed null and void in law are
by the common law illegitimate.’ ‘Children of a voidable
marriage, however, are legitimate, even by the common
law, unless the marriage was avoided by a court of com-
petent jurisdiction during the lives of both parents. $ By
statute in a number of states issue of a void marriage
(and the same acts would doubtless extend to a voidable

1See post, sec. 456.

2 Birthwhistle v. Vardill, 5 B. & C. 438, affirmed in 7 Cl. & F. 895;
1 Bl. Com. 455, 459, 3 Am. & Eng. Ency. L. (2d Ed.) 896; post, next
sec.

3 Drennan v. Douglas, 102 Ill. 341, 4 Am. R. 595.

4See Wallace v. Wallace, 137 Ia. 37,14 L. R. A. (N.S.) 544, 126 Am.
St. R. 253. A child that must in course of nature have been begotten
after limited divorce (divorce a mensa et thoro) is probably prima
facie illegitimate unless cohabitation of husband and wife'is proved.
St. George v. St. Margaret, 1 Salk. 123.

5 Zule v. Zule, 1 N. J. Eq. 96.

6 Faubanks v. Banks, 34 Ga. 407; Harrison ». State, 22 Md. 468,
85 Am. D. 658.
410 ILLEGITIMATE CHILDREN
Gite) are declared legitimate where either parent contracted
such marriage in good fade :

456.. Legitimation ‘of Bastards.

“Legitimation signifies the process by which a child born
illegitimate ‘becomes invested - with the legal status. of.
legitimacy. By the common law, as we have seen, a bas-
tard was ‘not legitimated by the subsequent. intermarriage
of. its” parents.” The humane rule of the civil law was.
otherwise,® and has been adopted without qualification i in-
a number of our states.‘ In others, however, the bastard.
is legitimated only where the intermarriage of its. parents.
is “accompanied or followed by an acknowledgment or
recognition of its legitimacy by the father.®

Tn a few states a bastard may become legitimated with-
out the intermarriage of its parents by a clear and unequiv-
ocal acknowledgment of the father that the child is his |
own, either express or implied from his receiving it. into
his family on the footing of a legitimate child.* In some
states ‘oral acknowledgment alone is insufficient. er The.

it ‘seems, ‘by. the law of, his domicile and not that of the
child’s.?
‘The | common law still prevails. in England, where a

1 Leonard v. Braswell, 99 Ky. 528, 36 L. R. A. 707; Watt ». Owens,
62 Wis. 512.

2 See ante, sec. 455.

32 Kent’s Com. 209; Brock v. State, 85 Ind. 397. See also 1 Pol. &
Mait. 127. .

4 Schouler’s Dom. Rel. (5th Ed.), sees. 226, 227.

5 Ives v. MeNicoll, 59 Ohio St. 402 69 Am. St. R. 780, 43 L. R. A.
772; Hawbecker v. Hawbecker, 43 Md. 516; Miller v. Pennington, 218
Til. 220, 1 L. R. A. (N. 8.) 773, and note.

° Blythe v, Ayres, 96 Cal. 532,19 L. R. A. 40. An acknowledgment
once properly, made is conclusive on the father. Binns v. Dazey, 147
Ind. 536.

7As to what is sufficient acknowledgment must depend upon the
terms of local statutes. See Blythe 2. Ayres, supra; Thomas ». Thomas’
Est., 64 Neb. 581.

8 Blythe v. Ayres, supra.
ILLEGITIMATE CHILDREN 41t

Hastad can be legitimated only by act of Parliament.
Power’ to declare bastards legitimate likewise resides in
our state legislatures. ? 3

457. Conflict of Laws—As to Legitimacy.

A child born legitimate, or legitimated under the laws
of the state or country where it’ and its parents were
domiciled when the act of legitimation took place, will, it
is said, be deemed legitimate everywhere.” While this is
generally true, it is not universally’so as to all classes of
rights, and it is held in England under the statute of
Merton that a child born illegitimate, but subsequently
legitimated where born and where its parents were domi-
ciled, cannot inherit lands in England,* and the same is
true as to lands in some of our states where that: statute
has been received-as common law.‘ Clearly, a bastard le-
gitimated by legislative act at the place ‘of its birth would
not be deemed: legitimate as against a parent domiciled
elsewhere or those claiming under him, except, perhaps, in’
the jurisdiction where the act was passed. If the father
and child, or probably the father only if the child was an
infant, were domiciled where the act of legitimation was
passed, the child would probably be deemed to have the
status of a legitimate elsewhere. ®

1 McGonnigle v. McKee, 77 Pa. 81, 18 Am. R. 428, /

“2 Warren ». Prescott, 84 Me. 483, 30 Am. St. R. 370, 17 L. R. A. 435,
and note; Ross v. Ross, 129 Mass. 248, 37 Am. R. 321; Fowler ».:
Fowler, 131 N.-Car.-169, 59. L. R. A. 317; Miller 2. Miller, 91 N. Y..
315, 43 Am. R. 669; Ives v. MeNicoll, 59 Ohio St. 402, 69 Am. ‘St. R.
780, 43 Ty R: A. 772.

“3 Birthwhistle v. Vardill, 5 B. & C. 438, affirmed 7 Cl. & F. 805:
Udny ». Udny, L.R. 1 H. L. Se. App. Cas. 441. See also Jac. on Dom.,
sec. 31; ‘In re Goodman’s Trusts, L. R. 17 Ch. 266.

4 Williams ». Kimball, 35 Fla. 49, 26 L. R. A. 746, 48 Am. St. R.
238; Lingen ». Lingen, 45 Ala. 410; Smith v. Derr’s Admrs., 34 Pa. 126,
75 Am. D. 641. —

5 Irving v. Ford, 183 Mass. 448, 97 Am. St. R. 447, 65 L. Ry A. 177,
and note. See also Minor’s Confl. Laws, sec. 100. :

8 Scott ». Key, 11 La. Ann. 282. But see Barna | v. . Barnum, 42

Md. 251.
412 ILLEGITIMATE CHILDREN

Where the legitimation of an infant bastard is alleged
to result from the intermarriage of its parents, or from
their intermarriage followed by acknowledgment, it is,
according to the rule prevailing in this country, legitimate.
everywhere, if the act of legitimation was sufficient to
render it legitimate by the law of the father’s domicile.
This is so whether the intermarriage or intermarriage and
acknowledgment took place there or elsewhere, for at the
moment of marriage the domicile of the father, mother
and child are drawn together at the domicile of the father.!
This is subject to the rule in some states that a bastard
legitimated abroad cannot inherit lands.?

Where at the time of the alleged legitimation the bas-
tard was an adult, or though the bastard was a minor
there was no intermarriage of its parents, more uncer-
tainty may arise. If, under such circumstances, both
father and child were domiciled in the same place when the
act of legitimation took place, their relationship as parent
and legitimate child will be recognized elsewhere, if such
act validly created legitimacy by the law of the common
domicile.®

Beyond this the cases are too few to be the basis of
any very definite statement of the law. Doubtless, how-
ever, acts sufficient to render a bastard legitimate by the
law of the father’s domicile will entitle it to inherit from
him there, though such child was domiciled abroad and
the act of the father was insufficient to legitimate it by
the law of the latter place.* It has been held, however,

1 Minor’s Confl. L., sec. 99, and authorities cited; Fowler v. Fowler,
131 N. Car. 169, 59 L. R. A. 317. The English rule differs from our
own in refusing to recognize the legitimacy per subsequens matri-
monium of a child whose putative father was domiciled in England at
its birth, where the act of legitimation took place and was valid at the
subsequently acquired foreign domicile of the father. Udny ». Udny,
L. R. 1H. L. Se. App. Cas. 441; Jac. on Dom., sec. 30.

2 Supra, note 3.

3 Ives v. MeNicoll, 59 Ohio St. 402, 69 Am. St. R. 780, 43 L. R. A.
772; Scott v. Key, 11 La. Ann. 232.

4 Blythe v. Ayres, 96 Cal. 532, 19 L. R. A. 40,
ILLEGITIMATE CHILDREN 413

that where a bastard was domiciled in France and was
acknowledged as legitimate by its father domiciled in
Alabama, it could not inherit its father’s property in Ala-
bama where legitimation by mere acknowledgment was
not recognized, though it was rendered legitimate in
France.!

458. Evidence and Presumptions as to Legitimacy.

If it is once proved or admitted that a child whose
legitimacy is in question was born to a mother who was
lawfully married when it was born, or when it might in
the course of nature have been begotten by her husband,
the legal presumptions of legitimacy is strongly in its favor.
The rule is based, not merely on the grave results to the
child of a judgment declaring it a bastard, but upon the
public scandal and inconvenience which such judgments
usually involve. So strong indeed was this presumption
by the early common law that if the husband was “ within
the four seas” when the child might have been begotten,
it was conclusively presumed legitimate, provided the
husband was physically capable.? But a doctrine so
technical and absurd could not continue in the law, and
whether the child of a married woman is legitimate or
not has long been regarded as a question of fact depending
upon the access or non-access of the husband.* The pre-
sumption is in favor of access, but this may be overcome
by showing that the husband was: (1) incompetent;
(2) entirely absent so as to have no communication or
intercourse of any kind with the mother; (3) entirely ab-
sent at the period during which the child must in the course

1 Lingen v. Lingen, 45 Ala. 410.

21 Bl. Com. 457; Co. Litt. 244; Wright v. Hicks, 12 Ga. 155, 56
Am. D, 451. See also Y. B. 32, 33 Edw. I, 60. ’

3 Bury v. Phillpot, 2 Myl. & K. 349, 7 Eng. Ch. 349; Pendrell 2
Pendrell, 2 Stra. 925; Banbury Peerage Case, 1 Sim. & Stu. 153; Wright
y. Hicks, supra, and notes thereto in 56 Am. D. 451; Goss ». Pornien,
89 Ky. 318, 8 L. R. A. 102, and note; Patterson ». Gaines, 47 U. 8.
(6 How.) 550; Cross v. Cross, 3 Paige’s Ch. (N. Y.) 139, 23 Am. D.
778.
Al4 ILLEGITIMATE CHILDREN

of nature have been begotten; or (4) only present, under
such circumstances as to afford clear and_ satisfactory
proof that there was no sexual intercourse. v But. where
the husband had access during the period when the child
might have been begotten, and there is no proof of his
incompetency, the weight of authority i is against admit-
ting evidence of the mother’s adultery to prove the child
illegitimate.’ - Still, the rule probably admits of at, least
one exception everywhere, and evidence i is admissible to
show that the child i is of a. different race from. the husband
and wife.? een
_ As an. exception to the familiar rule. eeoluatng. noareey
evidence, the. statements of. members of. the. family ‘con-
cerning family history or general family 1 Te] pute; ‘including
legitimacy or illegitimacy, are admissible ex necessitat
when. the declarant, or other members of ‘the family are
no longer available to oe in court. 4 ‘Such statements,

 

  

 

a anne v. ‘iigerare. 9 Beav. B52; Watts ve 7 Oneii 62 Wh 512,
and cases cited i in the preceding note. As to the quantum or. guile
ciency of proof’ to bastardize ¢ a og bom during wedlock, see 128 Am.
Bt R. 263, and note.~ : ae

“2 Bury v. Phillpot, 2-Myl. & K. 349; 7 Eng. Ch. 349; Rex. ». Luffe,

8 Hast, 193; Dennison. Page, 29 Pa.:420, 72 Am. D. 644; Grant v.
Mitchell; 83 Me. 23; Hemmenway v. Towner, 1 Allen Ses ), 209;
Goss ».. Froman, 89 Ky. 318, 8 L. R. A. 102. -
“3 State ». Saidell, 70 N. H. 174, 85 Am. St. R. 627, “and note: Ti.
Land Co. ». Bonner, 75" Til. 315. Gr other é¢ases the resemblance a the
child to the husband or to the putative father is-commonly rejected,
at least. where the child is very young.. MeCalman.r. State, 121 Ga.
491; Jonesy. Jones, 45 Md. 144; Hanawalt ». State, 64 Wis, 84, 54-Am.
R... 588, and cases cited. See,, however, Wright v. Hicks, 15 Ga. 160,
60 Am. D. 687; In re Jessup’s Est., ‘81 Cal. 408, 6L.R. A. 594; State
v. Saidell, supra; Higley ». Bostik, ii Conn. 97: Kelley ». State, 133
Ala. 195, 91 Am. St. R. 25.

4Vowles ». Young, 13 Ves. 140; Whitelocke v. Bakér, 13 Ves. 514;
Berkeley Peerage Case, 4 Camp. 409; Johnson +». Lawson, 2 Bing. ‘86;
Fulkerson v. Holmes, 117 U. 8. 389; Moffett: ». Witherspoon, 10 Tred.
(N. C.) 192; ‘Craufurd 2. Blackbum, 17 Md. 49, 77 Am. -D. 323; ‘Nor-
thrup 2. Hale, 76 Me. 306, 49 Am. R. O15; Vill» 0. Smith, 8 R. I. 417;
Wright ». Hicks, supra.
ILLEGITIMATE CHILDREN 415

however, must sina be sale ante litem motam, 1, Sy
before any controversy in which’ the declarant was in-
terested has arisen over the fact, by one ‘who had no ‘ob-
vious or pronounced interest or motive to oe 1

459. Same—Husband and Wife as Watnssses in
Legitimacy Cases.

While husband and wife are usually competent wit-
nesses upon an issue of. legitimacy, reasons of decency
and morality are generally held to disqualify both from
testifying directly or indirectly to. the fact of non-access
of the husband, where such. testimony would tend to
bastardize a child born during wedlock, whether: it was.
‘conceived before or after marriage.?- Their declarations
that no lawful marriage existed, however, are competent. é

460. Status and Rights of Bastard—Inheritance by
and from.

Not only: has the illegitimate child to bear the ‘social
stigma of * its parents’ wrong, but, as compared with legiti-
‘mate children, its rights as a child are few, particularly
by the common law. Legal writers have termed him filitis
nullius, filius populi, and filius terre,‘ and it is held that
he is even without a surname until he has acquired one
‘by. reputation.® - He was deemed by the common-law-to
have no inheritable blood, and’ could inherit: real or -per-
sonal property from ‘neither his father, “his: mother, nor

1 Berkeley’s Peerage Case, supra; In re Hate Est., 68 Vt. 366,
35 L. R. A. 794; People #.. Fire Ins. Co., 25 Wend. (N. Y.) 215, 224.
See generally. on the subject. of this nacaarenll, 2. wie Eyv., secs. : 1480
et seq.

: 2 Goodright ». Moss, 2 Cowp. 592; Tioga Co. v. doutk Creek Pooniuhip,
75 Pa. 433; Mink v. State, 60 Wis. 583, 50 Am: R. 386; Bowles v. Bing-
ham, 2 Munf. (Va.) 442, 5 Am. D. 497; Wallace v. Wallace, 137’ Ia.
37,14 L. R.A. (N.S.) 544, 126 Am. St. R. 253, 260, and note.: For the
history. of this rule see 3 Wigm. Ev., sec: 2063. See also ante, sé¢.'165.
. § Haddock». Boston & Me.’R., 3: Allen (Mass.), 298, 81 Am. D. 656.

42 Kent’s ‘Com. 212, 1 BI: Com. 459; ie v. Smith, 94 Gas 809,
812; Appeal of Gibson; 154 Mass. 378.. N

5 Sharinon »v. People, 5 Mich, 71; 33 ‘Cent. L. Jour, 221, ©

 
416 ILLEGITIMATE CHILDREN

their lineal or collateral relatives, nor could they inherit
from him. He could have no heirs save of his own body.
In spite of these rules a bastard is deemed to have blood
relations for some purposes. Thus, he cannot marry blood
relatives within the prohibited degrees,” and illegitimacy
is no defense to a prosecution for incest.*

The just tendency of modern law is to deal more ten-
derly with bastards. Statutes in many of the states
permit them to inherit from or through the mother in
default of lawful issue, or, in most states, equally with
lawful issue, and in some states bastards of the same
mother, though by different fathers, may inherit from
each other, and the mother may inherit from her bastard
child. In a few states a bastard may inherit from the
father under certain circumstances.’ Statutes, however,
occasionally distinguish between incestuous or adulterine
and, other bastards, with respect to capacity to take or
tr: smit, under the intestate laws. When sufficiently
designated, however, a bastard may take by will.” Fur-
thermore, by the law of England and this country, no

 

» 12 Kent’s Com. 212, 1 Bl. Com. 459; Stoltz ». Doering, 112 Ill. 234;
Hicks v.. Smith, supra; Butler ». Elyton Land Co., 84 Ala. 384; Ross 2.
Ross, 129 Mass. 243, 37 Am. R. 321; Cooley v. Dewey, 4 Pick. (Mass.)
93, 16 Am. D. 326; Dickenson’s Appeal, 42 Conn. 491, 19 Am. R. 553.

2 See ante, sec. 56; Hains v. Jeffel, 1 Ld. Raym, 68.

3 People v. Lake, 110 N. Y. 61, 6 Am. St. R. 344.

4In re Wardell’s Est., 57 Cal. 484. Usually they are not permitted
to inherit directly from the ancestors or collateral kindred of the mother.
See Jackson v. Jackson, 78 Ky. 390, 39 Am. R. 246. Compare Jackson
v. Hocke, 171 Ind. 371.

5 See.Com. v. Rash, 82 Ind. 519; Hicks 7. Smith, 94 Ga. 809; Monson
v. Palmer, 8 Allen (Mass.),.551.

®See generally as to mento aks Stimp. Am. Stat. L., sees.
3150-et seq..

_7See ante, sec. 454; Williaraion v. Mase 1 Ves. & B. 422; Med-
worth: », Pope, 27 Beav. 73; Dunlap v. Robinson, 28 Ala. 100; Hughes
2. Knowlton, 37 Conn. 429. But see Gaines v. Hennan, 24 ‘How. (U.S.)
553. As restricting the amount that a bastard may take by. will as
against legitimates, see La. Rev. Civ. Code, art. 1483; S. Car. Rev.
Stat. (1893), sec. 1999.
ILLEGITIMATE CHILDREN A417

one is deprived of civil or political rights and capacities
by reason of illegitimacy alone, save as indicated in the
preceding sections. The utmost legal consequences of
bastardy have been the deprivation of such rights and
capacities as have their foundation in the monogamic
family, the sins of the parent, even at common law, being
visited upon the offspring to that extent, not in any
avowedly vindictive spirit toward illegitimates themselves,
but as a means, more or less doubtful in the minds of
many, of conserving public morals and social order.

461. Support and Maintenance of Bastards.

At common law a father is under no legal obligation
to support his bastard child.!| This duty devolved upon
the mother.?

By statutes, however, in England and in most of the
United States, upon complaint of the mother or of certain
other persons, inquiry may be had as to the paternity of
a bastard, born or likely to be born, the object of which
is to compel the putative father to support it or contribute
to its support, or at least to give security that it shall not
become a public charge.’

Express contracts by a father touching the maintenance
of his bastard child are usually upheld,* even in favor of
the child.®

462. Custody and Control—Domicile and Settlement
of Bastards.
In the absence of statute the mother and not the father

1 Simmons »v. Bull, 21 Ala. 501, 56 Am. D. 257; Marlett ». Wilson,
30 Ind. 240.

2 Wright v. Wright, 2 Mass. 109; Friesner ». Symonds, 46 N. J. Eq.
521; Nine ». Starr, 8 Oreg. 49.

«As to the object and nature of bastardy or filiation proceedings,
see Marston v. Jenness, 11 N. H. 156; Simmons ». Bull, 21 Ala. 501,
56 Am. D. 257. See generally 5 Cyc. 646 et seq.

4 Wiggins v. Keizer, 6 Ind. 252; Marlett v. Wilson, 30 Ind. 240;
Stumpf’s App. 116 Pa. 33; Benge v. Hyatt’s Admrs., 82 Ky. App. 666.

5 Marlett ». Wilson, supra; Todd ». Weber, 95 N. Y. 181, 47 Am. R.
20. Compare Mercer v. Mercer, 87 Ky. 30.
418 ILLEGITIMATE CHILDREN

of a bastard is its natural guardian,! though the father
may probably assert a right to it as against a stranger,’
or even against its maternal relatives after the death of
the mother.? The mother, however, is entitled to its
custody and control even against the father,‘ though her
rights in this respect, if she proves an unfit custodian,
are no more absolute than are those of the parent of a
legitimate child.® By custom a bastard usually takes
the surname of its mother and she, and not the father,
has the right to bestow a Christian name.* Its domicile
is that of its mother and changes with hers,’ unless it is
a foundling, when it seems that its domicile of origin is
at the place where it was found.’ Its settlement under
the poor laws, however, was at common law at the place
of its birth,® a rule that has been changed by statutes in
some states so that it takes whatever settlement its mother
had at its birth, and its settlement changes with hers.’°

463. Services and Earnings of Bastard—Death by
Wrongful Act.
So long as the illegitimate child is in the custody of the

1 Ramsay v. Thompson, 71 Md. 315, 6 L. R. A. 705, and note.

2 Rex v. Soper, 5 T. R. 278; Olson v. Johnson, 23 Minn. 301; In re
Doyle, 1 Clark Ch. (N. Y.) 154; Pate’s App., 106 Pa. 574, 51 Am. R.
540.

3 Aycock v. Hampton, 84 Miss. 204, 65 L. R. A. 689, 105 Am. St. R.
424.

4 Reg. ». Nash, 10 Q. B. D. 454; Marshall v. Reams, 32 Fla. 499, 37
Am. St. R. 118; Dalton ». State, 6 Blackf. (Ind.) 357.

5 See post, secs. 480 et seq.; Reg. ». Nash, supra; Marshall ». Reams,
supra. Generally as to the custody of illegitimates, see the extended
note to Aycock ». Hampton, in 65 L. R. A. 689.

6 Walford v. Powers, Admx., 85 Ind. 294, 44 Am. R. 16.

7Story’s Confl. Laws, sec. 46; Cook v. Hill, L. R. 3 Ch. Div. 773;
Van Matre ». Sankey, 148 Ill. 536, 39 Am. St. R. 196, 23 L. R. A. 665.

8 Dicey’s Confl. L. 103, 132; Washington v. Beaver, 3 W. & S. (Pa.)
548.

°1 Bl. Com. 362, 459; Reeve’s Dom. Rel. 406.

10 Inhabitants of Monson v. Palmer, 8 Allen (Mass.), 551. This is
the yule in Connecticut without the aid of statutes. Wyndham 2.
Lebanon, 51 Conn. 319,
ADOPTED CHILDREN 419

mother and is supported by her, she doubtless has a right
to its services and earnings. Notwithstanding this, it is
generally held that under statutes giving the parent
a right to recover for the death of a child by wrongful
act, the mother, and a fortiori the father, of a bastard
has no cause of action, save that in some states the mother
may sue where she is entitled by statute to inherit from
such child.!

ADOPTION AND STATUS OF CHILDREN BY ADOPTION

464. Definition and Nature of Adoption.

Adoption is usually employed to denote the act of proc-
ess by which the legal status of parent and child is estab-
lished between those who were not previously so legally
related, either because the child was the child of a stranger,
or because it was the illegitimate, though natural, child
of the adopting parent.’ It is sometimes used, however,
to designate legitimation of natural or bastard children,
a subject already discussed.* Adoption was unknown
to the common law, though expressly sanctioned by the
civil law whence it was derived by Texas and Louisiana.‘
In most states, therefore, adoption is strictly the creature
of statute, and the statutory requirements must be at
. least.substantially, if not strictly, complied with in order
to render the adoption valid.> In some states, however,

1See McDonald v. Southern Ry., 71 S. Car. 352, 2 L. R. A. (N. 8.)
640, and note, 110 Am. St. R. 576.

2 See Morrison v. Sessions, 70 Mich. 297, 14 Am. St. R. 500.

+See ante, sec. 456. Doubtless one may adopt his bastard child
even where he cannot legitimate it, provided the statutes permit adop-
tion, and do not forbid the adoption of bastards.

‘In re Thorne, 155 N. Y. 140, and cases cited. Eckford ». Knox,
67 Texas, 200; Vidal ». Commagere, 13 La. Ann. 516. See 31 Cent.
L. Jour. 66.

5 Abney v. DeLoach, 84 Ala. 393; Nugent v. Powell, 4 Wyo. 173, 62
Am. St. R. 17, 20 L. R. A. 199; Clarkson ». Hatton, 143 Mo. 47, 39
L. R. A. 748, 65 Am. St. R. 635; Bancroft ». Bancroft, 53 Vt. 9; In re
Williams’ Est., 102 Cal. 70, 41 Am. St. R. 163. -See‘also Parsons ».
Parsons, 101 Wis. 76, 70 Am. St. R. 894. That a strict and literal com-
420 ADOPTED CHILDREN

where an adoption was legally insufficient because not
in compliance with statute, the child has still been held
entitled in equity to inherit where there was an agreement
by the alleged adopting parent to leave his property to
the child, and the child has performed its duties as such
in reliance upon the supposed adoption.'

465. Statutory Requirements—Jurisdiction and Con-
flict of Laws.

The method of adoption pointed out by statute com-
monly requires a proceeding, usually by petition, in some
designated court, commonly a court of probate. The
proceeding is in the nature of a proceeding in rem, for it
involves a change in the status and relations of the adopt-
ing parent and the adopted child, and ordinarily in the
relations of the latter and his natural parents.? If all
these parties are domiciled where the proceeding takes
place, and the proceeding itself conforms to the statute,
there is no doubt as to the existence of the adoptive status
there and elsewhere. In other cases it seems that an
adoption taking place and valid under the law of the domi-
cile, either of the adopting parent or the adopted child
(which latter will usually be that of its natural parent)
will be valid everywhere, at least if the natural parents

pliance with the statutory formalities is required in some states, see
Watts v. Dull, 184 Ill. 86, 75 Am. St. R. 141; Ferguson ». Jones, 17
Oreg. 204, 11 Am. St. R. 808, 3 L. R. A. 620; Johnson ». Terry, 34
Conn. 259; Long v. Hewett, 44 Ia. 363; Lupie 7. Winans, 37 N. J. Eq.
245.

1 Wright v. Wright, 99 Mich. 170, 23 L. R. A. 196; Sharkey v. Mc-
Dermott, 91 Mo. 647, 60 Am. R. 270; Van Tine v. Van Tine (N. J. Ch.),
1L. R.A. 155; Lynn v. Hockaday, 162 Mo. 111, 85 Am. St. R. 480;
Durkee v. Durkee, 59 Vt. 70.

? Brown on Jurisdiction, sec. 80; Van Matre v. Sankey, 148 IIl. 536,
39 Am. St. R. 196, 23 L. R. A. 665, and cases cited below.

* Van Matre v. Sankey, supra; Keegan v. Geraghty, 101 Ill. 26; Ross
v. Ross, 129 Mass. 243, 37 Am. R. 321; Gray v. Holmes, 57 Kan. 217,
33 L. R. A. 207; Foster v. Waterman, 124 Mass. 592; Ferguson ».
Jones, 17 Oreg. 204, 11 Am. St. R. 803, 3 L. R. A. 620.
ADOPTED CHILDREN 421

consent or have abandoned their parental duties.' But
it is also doubtless true that a child by adoption in one
state is a child by adoption everywhere, as distinguished
from a natural child. Hence, if a child adopted in Wis-
consin claims an inheritance in Illinois, he must take
under the Illinois law of descent, and if that precludes
adopted children he cannot take, though the law of Wis-
consin recognizes the rights of adopted children in such
cases, for the policy of the forum must control.?

The further common statutory requisites of adoption
are usually: (1) consent of the child’s parents or the sur-
vivor of them, or the guardian or other person or institu-
tion having custody of the child, or due notice to them;
(2) consent of the child, if it be over a certain age, usually
fourteen; and (8) consent of the husband or wife of the
adopting party, unless the husband and wife are lawfully
separated.

466. Who May Adopt and Be Adopted.

Usually any adult resident of the state, or any adult
resident over some specified age, may adopt a child as
his or her own. In many states the statutes permit the
adoption of ‘‘any minor,” in which case the adoption of
an adult is void.* In others they sanction the adoption
of ‘‘any child,” and the courts are not agreed whether
the term child in such statutes is to be construed minor
child, or be held to include adults.* Some states sanction

1See Minor’s Confl. L., sec. 101; Van Matre ». Sankey, supra;
Ferguson v. Jones, supra; Foster ». Waterman, 124 Mass. 592.

2Van Maitre v. Sankey, supra; Keegan v. Geraghty, 101 IIl. 26;
Shick v. Howe, 137 Ia. 249, 14 L. R. A. (N. S.) 980; and note to Irving
v. Ford, 65 L. R. A. 186; Appeal of Atwood, 81 Conn. 152.

3 As to notice to and consent of parents see Schlitz ». Roenitz, 86
Wis. 31, 39 Am. St. R. 873, 21 L. R. A. 483; In re McCormick, 108
Wis. 234, 81 Am. St. R. 890; Long v. Hewett, 44 Ia. 363; Gibson’s Ap-
peal, 154 Mass. 378.

4 McCollister v. Yard, 90 Ia. 621. In some states the adoption must
be by husband and wife jointly unless the adopter is single. See
Watts v. Dull, 184 Il. 86, 75 Am. St. R. 141.

5 That “child” means minor child, see Moore ». Petitioner, 14 R. I.

»
422 ADOPTED CHILDREN

the adoption of adults, either ciently? or by necessary
intendment.’

467. Effect of Adoption—Inheritance by and from
Adopted Child.

Adoption makes the one adopted legally the child of
the person adopting him, and not of the adopter’s wife
or husband,’ unless the adoption was by both spouses
jointly. In this and some other respects an adopted
child differs from a child made legitimate by the inter-
marriage of its parents, or their intermarriage and the sub-
sequent acknowledgment of its father. Such child, it is
submitted, becomes and must be treated as a natural
child, legitimate as to the mother as well as to the father,
and their collateral relatives as well.§

In the absence of special statute to the contrary, an
adopted child inherits from the adoptive parent the same
as a natural child,® and the lineal descendants of an adopted
child inherit from him, though the property in question
was derived from the adopting parent.’ The policy of

38. Contra, Markover v. Kruss, 132 Ind. 294, 17 L. R. A. 806; In re
Moran, 151 Mo. 555; Sheffield v. Franklin (Ala., 1907), 12 L. R. A.
(N. 8.) 884.

1 Rev. Stat. Wis. (1898), sec. 4021.

2 See Pub. Stat. Mass., Chap. 148, secs. 1 and 2; Caldwell’s Succes-
sion, 114 La. 195, 108 Am. St. R. 341; Collamore ». Learned, 171 Mass.
99.

3 Carroll’s Est., 219 Pa. 440, 123 Am. St. R. 673; Webb ». Jackson,
6 Col. App. 211; Barnhizel v. Farrell, 47 Ind. 335.

4 Markover »v. Kruss, 132 Ind. 294, 17 L. R. A. 806.

* Jackson ». Moore, 8 Dana (Ky.), 170. The rule would doubtless
be otherwise as to the mother where there was acknowledgment by
the father but no intermarriage.

6 Warren v. Prescott, 84 Me. 483, 17 L. R. A. 435, and note, 30 Am.
St. R. 370. See also Gascott v. Bragg, 111 Wis. 605, 56 L. R. A. 258;
Sandon »v. Sandon, 123 Wis. 603, holding that the adoption of a child
has the same effect on the prior will of the parent as the birth of a
natural child. Compare Davis ». Fogle, 124 Ind. 41, 7 L. R. A. 485.

7 Paul v. Davis, 100 Ind. 422. That such descendants inherit from
the adopting parent see Bower v. Hafley, 85 Ky. 671.
ADOPTED CHILDREN 423

the statutes and decisions, however, is to confine the right
of succession and inheritance of such child to the adopting
parent as distinguished from his or her lineal or collateral
kin.1 But an adopted child, if its natural parents be living,
may sustain for purposes of inheritance the relation or
status of child to two families. It may usually inherit
from both its natural and its adopted parents,” and from
the kindred of the former, but not from the ancestors ?
or descendants of the latter + or from their collateral kin,
for to these it bears no relationship actual or conven-
tional.’ If it dies unmarried leaving no descendants,
however, there is much conflict as to the course of suc-
cession where statutes have not forestalled controversy.
Some courts hold generally that the parents by blood and
their kindred inherit to the exclusion of the adoptive
parents,® while others confine the succession of the natural
parents and their kindred to property derived from them
or one of them, or to property not derived from the adopt-

1 Phillips ». McConica, 59 Ohio St. 1, 69 Am. St. R. 753; Sutherland’s
Est., 60 Ia. 732; Moore v. Moore, 35 Vt. 98; Keegan v. Geraghty, 101
Ill. 26; Hole v. Robbins, 53 Wis. 514; Helms ». Elliott, 89 Tenn.
446, 10 L. R. A. 535; Delano ». Bruerton, 148 Mass. 619, 2 L. R. A.
698.

? Clarkson v. Hatton, 143 Mo. 47, 39 L. R. A. 748, 65 Am. St. R.
635; Patterson v. Browning, 146 Ind. 160; Humphries ». Davis, 100
Ind. 274, 50 Am. R. 788; Wagner ». Varner, 50 Ia. 532. In this last
case the child, legally adopted by its grandfather, inherited as his child
and also the share of its mother as grandchild by right of representa-
tion. Contra, that an adopted child cannot inherit from the adopting
parent in two capacities, Delano ». Bruerton, supra; Morgan ». Reel,
213 Pa. 81.

3 Meader »v. Archer, 65 N. H. 214; Phillips 1. McConica, 59 Ohio St.
1, 69 Am. St. R. 753; Quigley v. Mitchell, 41 Ohio St. 375.

4 Keegan v. Gerrity, 101 Ill. 26; Helms v. Elliott, 89 Tenn. 446, 10
L. R. A. 535, and cases cited in note.

* Van Matre v. Sankey, 148 Ill. 536, 39. Am. St. R. 196, 23 L. R. A.
665.

® Corn v. Powel, 16 W. N. C. (Pa.) 297; Hole v. Robbins, 53 Wis.
514; Reinders ». Koppelmann, 68 Mo. 482, 30 Am. R. 802; Upson ».
Noble, 35 Ohio St. 655.
424 ADOPTED CHILDREN

ive parents,! and there are other rulings doubtless in-
fluenced in many cases by particular statutes.”

Upon adoption, however, so far as the natural parents
are concerned, all personal rights and duties of a legal
nature incident to the relation of parent and child are
severed. The adopting parents, so far as concerns the
right to custody and control of the child, its services and
earnings and its maintenance and education, are clothed
with the rights and burdened with the duties of its natural
parents, who are in these respects thenceforth legally
strangers to it.?

468. Rights of Adoptive Parent and Child Under Will.

Whether a devise or bequest in favor of children as a
class includes an adopted child depends, apparently, upon
the intention of the testator as expressed in the will when
construed with reference to the facts and circumstances
of the case.‘

1 Paul v. Davis, 100 Ind. 422; Humphries v. Davis, 100 Ind. 274, 50
Am. R. 788; Stat. Wis. 1898, sec. 2272a, changing the rule of Hole ».
Robbins, supra. See also Spangenburg v. Guiney, 2 Ohio. N. P. 39, 3
Oh. D. 163, construing Rev. Stat. Ohio, sec. 3140.

28ee Humphries v. Davis, 100 Ind. 274, 50 Am. R. 788 and cases
cited. Compare White ». Dotter, 73 Ark. 130; Reinders v. Koppel-
mann, supra.

* Warren v. Prescott, 84 Me. 483, 30 Am. St. R. 370, 17 L. R. A. 435,
and note; Humphries ». Davis, supra; Markover v. Kruss, 132 Ind.
294, 17 L. R. A. 806; In re Newman, 75 Cal. 213, 7 Am. St. R. 146;
Hole v. Robbins, 53 Wis. 514; Lunay v. Vantyne, 40 Vt. 503. A parent
by adoption is no more civilly liable than a natural one for battery of
the child, Foley v. Foley, 61 Ill. App. 577.

‘See Lichter ». Thiers, 189 Wis. 481, reviewing authorities. See
also note in 17 L. R. A. 435. Compare Shafer ». Eneu, 54 Pa. 304;
Woodcock’s Appeal, 103 Me. 214, 125 Am. St. R. 291.
CHAPTER XXXVII

RIGHTS OF PARENT WITH RESPECT TO LEGITIMATE CHILD—
SERVICES AND EARNINGS-—EMANCIPATION

469. Parent Has no Right in Child’s General Property.

The parent has no right in the child’s general property
as distinguished from his services and earnings,! nor is
such property liable for the parent’s debts. Neither can
he interfere with or manage it as guardian, unless he is
a legally appointed guardian of the estate.?

Generally, whatever property comes to the child by
any lawful mode of acquisition is his, unless it is the fruit
of his industry while unemancipated. Even the earnings
of the infant may, as in the case of bounty money or his
pay as a soldier or sailor in the land or naval forces, belong
to him,? and so of his general earnings, if he is emanci-
pated. The ordinary wearing apparel of the child, how-
ever, and probably such things as schoolbooks and the
like supplied by the parent for support and education
belong prima facie to the parent and not to the child.®

470. Services and Earnings of Minor Child—In Gen-
eral.

The father of a legitimate minor child is entitled to its
services and earnings so long as it is unemancipated.®

12 Kent’s Com. 217; Banks v. Conant, 14 Allen (Mass.), 497; Linton
v. Walker, 8 Fla. 144, 71 Am. D. 105.

2 Linton v. Walker, supra; Miles ». Boyden, 3 Pick. (Mass.) 213.

3 Banks ». Conant, supra. See post, sec. 476.

4 See post, secs. 475 et seq.

5 Dickenson v. Winchester, 4 Cush. (Mass.) 114, 50 Am. D. 760.

¢ Jenness v. Emerson, 15 N. H. 488; Benson v. Remington, 2 Mass.
118; Nightingale ». Withington, 15 Mass. 272, 8 Am. D. 101.

425
426 CHILD’S SERVICES AND EARNINGS

This right is based both upon the duty of the parent to
furnish support, and the duty and necessity of parental
control for the good of the child.1_ Upon similar reasoning
a widow is entitled, by the weight of authority, to the
same right.2, Some cases, however, deny the widowed
mother’s right generally,* while others seem to recognize
it only while the child resides with and is supported by
her. But a widow, it seems, is not entitled to the earn-
ings of her minor children accruing after her remarriage.°

While there may be doubt as to the right of a deserted
wife at common law to sue and recover for the services of
minor children in her custody, statutes in most states de-
clare her rights in this regard.®

471. Same—Rights of Parent’s Creditors.

The rights of the parent’s creditors in the earnings of
minor children are practically coextensive with those of
the parent.’

472. Same—Payment of Child’s Earnings.
It follows from what has been said that where the child

1 Dodson v. McAdams, 96 N. Car. 149, 60 Am. R. 408; Canouar ».
Cooper, 3 Barb. (N. Y.) 117.

? Nightingale ». Withington, supra; Hammond »v. Corbett, 50 N. H.
501, 9 Am. R. 288; Furnam ». Van Sise, 56 N. Y. 435, 15 Am. R. 441;
Duffield v. Cross, 12 Ill. 397; Ballard v. St. Albans Advertiser Co., 52
Vt. 325. The mother, however, while she resides with the father,
cannot sue for the enticement of the child or for loss of its services.
Soper v. Igo, Walker & Co., 121 Ky. 550, 123 Am. St. R. 212, 1 L. R..
A. (N. 8.) 362. -

’ Fairmount, etc., Ry. Co. ». Sutler, 54 Pa. 375, 93 Am. D. 714;
Morris ». Low, 4 Stew. & P. (Ala.) 123; Gray ». Durland, 50 Barb.
(N. Y.) 100, 218, 219, 221.

‘Campbell v. Campbell, 11 N. J. Eq. 268; Pray ». Gorham, 31 Me.
240; Osborn v. Allen, 26 N. J. L. 388; Jenness ». Emerson, 15 N. H.
491.

5 Hollingsworth ». Swedenberg, 49 Ind. 378, 19 Am. R. 687.

6 See O’Brien v. Philadelphia, 215 Pa. 407, and statutes of the several
states.

7Schuster v. L. Bauman Jewelry Co., 79 Tex. 179, 23 Am. St. R.
327; post, sec. 478.
CHILD’S SERVICES AND EARNINGS 427

performs services for another under such circumstances
as to create an express or implied obligation to pay for
them, the parent may recover for them. Indeed the
parent is not necessarily limited to the amount of wages
stipulated to be paid his child, and unless he authorized
or ratified the contract of the child he may recover the
reasonable value of the services rendered regardless of
any contract made by it.!| Payment to the child, there-
fore, is no defense to an action by the parent unless the
child had been emancipated, or unless the employer was
in some way authorized by the parent to pay the child,?
or the parent led him to believe that the child has been
emancipated.®

473. Right of Others in Loco Parentis.

While the technical guardian of an infant is not ordi-
narily entitled to his services and earnings,‘ a stepfather
has a right to them, coextensive at least with the expense
that he incurs for maintenance; * and where the child is
a member of his household and is supported by him, it
would seem that he can claim them absolutely.® It is
otherwise where the child is not in his custody and is not
maintained by him.’ A grandparent who has the care
and custody of an infant and supports it in his household
has likewise been held entitled to its services and earnings.®
Indeed this would no doubt be the rule as to any person
who had lawfully assumed the custody and support of
an infant in exchange for its services, so far, at least,
as to relieve him from any liability to the child for

1 Bishop v. Shepherd, 23 Pick. (Mass.) 492.

2 Huntoon v. Hazleton, 20 N. H. 388.

* Whiting v. Earle, 3 Pick. (Mass.) 201, 15 Am. D. 207; Schoonover
v. Sparrow, 38 Minn. 393.

4See post, sec. 470.

§ Whitehead 2. St. Louis, etc., R. R. Co., 22 Mo. App. 60.

6 Stone v. Pulsipher, 16 Vt. 428.

‘1 Freto ». Brown, 4 Mass. 675.
8 Clark v. Bayer, 32 Ohio St. 299, 30 Am. R. 593.
428 CHILD’S SERVICES AND EARNINGS

wages, provided the duty of support was faithfully dis-
charged.!

474, Child of Age—Implied Contract.

Though a child is of age, if it continues a member of
its father’s household, receiving shelter and support, no
contract will ordinarily be implied to pay it for its serv-
ices, nor can it be charged with maintenance, in the
absence of an express contract or special circumstances
from which such contract may be implied.?_ Indeed the
rule is not confined to parent and child, and where there
is a close relationship between the parties and they live
under the same roof, the rule is almost universal that
services mutually rendered are presumed to be simply
acts of natural kindness and intended to be gratuitous,’
and this presumption prevails even though the parties live
apart, at least as to such acts of mutual service and assist-
ance as are commonly rendered without pay between
those nearly related by blood or marriage. Where rela-
tives live together in the same household, nothing short
of an express promise to pay for services rendered by one
to the other will ordinarily rebut the presumption that
they were gratuitous, and such a promise must be proved
by direct and positive evidence or by evidence of circum-
stances equivalent to direct and positive proof.®

It seems, however, that an express promise to pay for
such services rebuts the presumption that they were
gratuitous, even though such promise cannot be enforced

"Mountain v. Fisher, 22 Wis. 93.

? Bish. on Contr. (new Ed.), sec. 228, and cases cited; Dodson
v. McAdams, 96 N. Car. 149, 60 Am. R. 408; Munger v. Munger, 33
N. H. 581; Cantine v. Phillips, 5 Harr. (Del.) 428.

3 Bish. on Contr., supra; Williams v. Williams, 114 Wis. 79; Austin
v. Moe, 68 Wis. 458.

4See Williams v. Williams, supra.

5 Taylor v. Thieman, 132 Wis. 38, 122 Am. St. R. 943, and cases
cited. Compare Putnam v. Town, 34 Vt. 429; Hall ». Hall, 44 N. H.
393.
CHILD’S SERVICES AND EARNINGS 429

because it is void under the statute of frauds, and the
child or other relative may recover quantum meruit.!

EMANCIPATION OF CHILD

475. Emancipation Defined and Explained.

Emancipation in the law of infancy generally signifies
the release of the infant from parental dominance or con-
trol, so far, at least, as to legally entitle him to his own
time and earnings, and to sue for and recover such earnings
in his own name and right, and for wrongs interfering with
his earning capacity or opportunities.’

Emancipation may be complete and permanent or
temporary and partial. It may take place:

1. By operation of law.

2. By consent or agreement, express or umplied.

3. By estoppel of the parent as against third persons
dealing with the infant.

476. Emancipation by Operation of Law.

When a child arrives at the legal age of majority he is
fully emancipated by operation of law. If he remains
at home, however, receiving support and rendering serv-
ices as before, a special contract is usually necessary, as
we have seen, to entitle him to wages as against the parent
or to render him liable to the parent for necessaries sup-
plied.* When the child is non compos mentis, however,
emancipation is not implied from the fact of his coming
of age, so long as he remains at home or under parental
control.4

1 Taylor v. Thieman, supra, and cases cited therein at p. 45; Wallace
v. Long, 105 Ind. 522, 55 Am. R. 222; Reynolds ». Robinson, 64 N. Y.
589; Freeman v. Foss, 145 Mass. 361, 1 Am. St. R. 467; Schwab ».
Pierre, 43 Minn. 520.

2 See Vance v. Calhoun, 77 Ark. 35, 113 Am. St. R. 111, and note to
that case, p. 1138; Com. v. Graham, 157 Mass. 73, 34 Am. St. R. 255,
16 L. R. A. 578.

3 See ante, sec. 474; post, sec. 499.

‘Brown v. Ramsey, 29 N. J. L. 117, 120; Hahn v. Cooper, 84 Wis.
629.
430 CHILD’S SERVICES AND EARNINGS

The legal marriage of a female infant, whether with or
without the consent of the parent, works a complete
emancipation, as nothing short of this would be fairly
consistent with the discharge of the duties involved in
the new relation of wife.t The marriage of a male infant
with the consent of his parents has the same effect. If
such consent is wanting, however, it seems uncertain
whether he would be deemed emancipated further than
was necessary to enable him to support his wife and chil-
dren, though public policy would seem to require that
the emancipation be deemed complete.?

The enlistment of an infant in the army or navy is
likewise an emancipation so long as he remains in the
service, and entitles him not only to his pay,’ but to boun-
ties and prize money due him on account of such service.*

If the parent so conducts himself, whether by abandon-
ing the child or otherwise, that it is practically forced to
rely upon its own resources, emancipation will be implied,
or will be deemed to take place by operation of law.®

477. Emancipation by Agreement or Contract—Es-
toppel.
Where the parent, by agreement based upon a valuable

1 Aldrich v. Bennett, 63 N. H. 415, 56 Am. R. 529; Com. v. Graham,
157 Mass. 73, 16 L. R. A. 578, 34 Am. St. R. 255, and cases cited in
the opinion; Wilkinson »v. Dellinger, 126 N. Car. 462.

2 Taunton v. Plymouth, 15 Mass. 203; Com. v. Graham, ‘157 Mass.
73, 34 Am. St. R. 255, 16 L. R. A. 578; Burr v. Wilson, 18 Tex. 367;
Dick v. Grissom, Freem. Ch. (Miss.) 428. See, however, Halliday v.
Miller, 29 W. Va. 424, 6 Am. St. R. 653; White ». Henry, 24 Me. 531,
holding that marriage without the father’s consent does not emanci-
pate a minor son. In a few states by statute marriage of an infant of
either sex works an emancipation by removing all the disabilities of
infancy.

4 Baker v. Baker, 41 Vt. 55; Kelly ». Sprout, 97 Mass. 169; Halliday
v. Miller, supra.

4 Banks v. Conant, 14 Allen (Mass.), 497.

8’ McMorrow »v. Dowdell, 115 Mo. App. 289; Farrell v. Farrell, 3
Houst. (Del.) 633; Nightingale ». Withington, 15 Mass. 272, 8 Am. D.
101; Clay ». Shirley, 65 N. H. 644; Town of Tunbridge v. Town of
Eden, 39 Vt. 17.
\

CHILD’S SERVICES AND EARNINGS 431

consideration or under seal, gives the child the right to
his own labor and earnings, the agreement is irrevocable
in favor of the child and his employers and against the
parent and his creditors.! Even though the agreement
or consent is by parol and without consideration, it is
valid to the extent that it has been acted upon, and the
parent cannot claim what has been earned in reliance
upon it,? and his creditors are in no better position, nor
is it likely that he may claim such wages as the child
may afterward earn under a contract for future service
entered into before revocation took place. Of course a
parent who so conducts himself as to lead the employers
of the child to pay it its earnings in the belief that it is
emancipated or otherwise authorized to receive them
would be estopped from afterward recovering them.

478. Effect of Emancipation—Creditors of Parent.

A parent is under no obligation to work the child for
the benefit of his creditors, or to claim its future earnings
for them. He may even contract to employ the child
himself and to allow him wages beyond his board and
other maintenance, and such agreement will be valid both
as against the parent and his creditors.* Earnings accrued
before the emancipation, however, stand upon a different
footing, and a gift of them by the parent to the child,
while valid inter partes, is void as against the creditors
of the parent if it is intended as a fraud upon them, or
the parent is insolvent, or is rendered so by the gift.5

' Wilson ». McMillan, 62 Ga. 16, 35 Am. R. 115.

2 Wilson v. McMillan, supra; Cloud v. Hamilton, 11 Humph. (Tenn.)
104, 53 Am. D. 778; Torrens ». Campbell, 74 Pa. 470.

3 Atwood ». Holcomb, 39 Conn. 270, 12 Am. R. 386.

4 Hall v. Hall, 44 N. H. 293; Wilson ». McMillan, 62 Ga. 16, 35 Am.
R. 115, and note; Beaver v. Bare, 104 Pa. 58, 49 Am. R. 567; Atwood
». Holcomb, supra.

5 Beaver v. Bare, supra; Atwood v. Holcomb, supra.
CHAPTER XXXVIII

CUSTODY OF LEGITIMATE CHILDREN—-DOMICILE AND
SETTLEMENT

479. Custody in General—Rights of Parents Respec-
tively and of Strangers.

By the common law the husband is entitled primarily
to the custody and control of his legitimate minor children
as against the world. The right springs from his position
as head of the family, his natural affection for them, and
his duty to maintain, protect and educate them.? During
the life of the father, the mother’s custody and authority
are to a certain extent deemed lawful, but she is said to
act in this regard more in the nature of an agent of the
husband than in her own right.’ Practically all the cases
on this subject recognize this general rule. It was pushed
to such extremes in England for a time as to amount toa
virtual disregard of the just rights of the mother and the
welfare of the child itself,* until legislation enlarged the
power of chancery to award the custody of infants under
certain ages to the mother.’ The courts of this country, on

1 The rule as to bastards has already been stated. See ante, sec. 462.

2 Rex v. Greenhill, 4 Ad. & El. 624; U.S. »v. Green, 3 Mason (U. S.),
482; Johnson v. Terry, 34 Conn. 259; In re Scearrett, 76 Mo. 365.

3 Reeve’s Dom. Rel. 295. See dissenting opinion of Hogeboom, J.,
in Gray v. Durland, 50 Barb. (N. Y.) 218, and statutes in several
states.

4See Ex parte Hopkins, 3 P. Wms. 152; Rex v. Greenhill, supra;
Mercien ». People, 25 Wend. (N. Y.) 64, 35 Am. D. 653; People ».
Olmstead, 27 Barb. (N. Y.) 9, and cases cited. Compare the earlier
English cases of Creuze v. Hunter, 2 Cox Ch. Cas. 242; Rex v. Deleval,
3 Burr. 1434; Blissett’s Case, Lofft, 784.

5 See 23 Vict., Chap. 54 (Lord Talfourd’s Act) as to children under
seven; 36 & 37 Vict., Chap. 12 (Infants’ Custody Act) as to children

432
CUSTODY OF CHILDREN 433

the other hand, have always exercised a wide discretion,
both in favor of the mother, and in awarding the custody
of infants to more distant relatives or even to strangers,
as will shortly appear.!. Upon the death of the father,
however, the mother has the paramount right to the
custody and control of her minor children at common
law.? And even where the husband is living, the statutes
of some states very justly provide that the custody and
authority of the parents shall be joint and their rights
coequal, or nearly so.* It is held in a few states that if
a widow remarries, her absolute right as guardian of her
minor children ceases. But in any event her right to be
appointed guardian will no doubt everywhere be respected
if she is fit for the trust, and in most states her authority
as their natural guardian upon the death of the father
is recognized in spite of her remarriage.’ If, by reason of

under sixteen. By the Guardianship of Infants’ Act, 1886 (49 & 50
Vict., Chap. 27) the court may make such order as it sees fit regarding
the custody of infants and the access thereto of either parent, having
regard to the welfare of the infant, the conduct of parents, and to the
wishes as well of the mother as of the father. See the note to In re
Agar-Ellis, in 13 Eng. Ruling Cas. 51.

1 See post, next sec. As to the modern jurisdiction and control over
delinquent, incorrigible, abandoned and neglected children as often ex-
ercised through special tribunals known as juvenile or childrens’ courts,
see post, secs. 627, 628 et seq.

2 Villareal ». Mellish, 2 Swan. 536; Furman v. Van Sise, 56 N. Y.
435, 15 Am. R. 441; Osborne v. Allen, 26 N. J. L. 388; Moore »v. Chris-
tian, 56 Miss. 408, 31 Am. R. 375; Chapskey ». Wood, 26 Kan. 650,
40 Am. R. 321; State v. Reuff, 29 W. Va. 751, 6 Am. St. R. 676.

’See statutes in Iowa, Nebraska, New York, Kansas and possibly
some other states. See Rowe v. Rugg, 117 Ia. 606, 94 Am. St. R. 318.
A wife separated from the husband without legal or moral grounds
probably forfeits her rights as joint guardian under these statutes. See
People v. Brooks, 35 Barb. (N. Y.) 85; People’v. Sternberger, 12 N. Y.
App. Div. 398, 42 N. Y. Supp. 423.

‘See State v. Scott, 30 N. H. 274; Mears ». Sinclair, 1 W. Va. 185,
195; Ex parte Bailey, 6 Dowl. P. C. 311. In re Goodenough, 19 Wis.
274, and cases cited.

5 See Armstrong v. Stone, 9 Gratt. (Va.) 102; Cotton v. Wolf, 14
Bush. (Ky.) 238; State ». Reuff, 29 W. Va. 751, 6 Am. St. R. 676.

28
434 CUSTODY OF CHILDREN

her remarriage or otherwise, she has become an unfit cus-
todian in the interest of the child, chancery at least may
interfere.}

480. Same—Modern Chancery Rules.

It is quite generally settled in this country without the
aid of statutes, that courts of equity have power, in the
exercise of the authority of the state as parens patriz, to
take the custody of a minor child from the father and
award it to the mother, or take it from either or both par-
ents and award it to a stranger, wherever the parents
or either of them, due regard being had to the interests
of the child as the paramount consideration, have become
unfit to have its custody.? In such cases it is often said
that the welfare of the child is the guiding or paramount
consideration. While this is generally true, it must not
be taken literally and without qualification, for if it were,
a poor, ignorant parent, however able and willing to sup-
port his child in his own humble way, could seldom retain
it as against a person of wealth and social position who
was ready to assume its custody and provide for its main-
tenance and future.* Furthermore, the interests and wel-
fare of the child will be deemed prima facie to be best
promoted by continuing the parental guardianship, for
that is provided by natural, and recognized ex necessitate
by municipal law, so that the case must be a strong one
that will move the court to interfere with or deny parental
custody in favor of a stranger or a more distant relative.‘

1 Spears v. Snell, 74 N. Car. 210.

* See Schouler’s Dom. Rel. (5th Ed.), secs. 246-248, inclusive; Story’s
Eq. secs. 1840 et seq., and cases throughout this section; ante, secs.
446, 448,

? McKim v. McKim, 12 R. I. 462, 34 Am. R. 694; Verser ». Ford, 37
Ark. 27, and cases cited throughout this section; Hernandez ». Thomas,
50 Fla. 522, 111 Am. St. R. 137, 2 L. R.A. (N.S.) 208.

‘Inre Agar-Ellis, 10 Ch. D. 49; In re Finn, 2 De G. & 8. 457; Lovell
v. House of Good Shepherd, 9 Wash. 419, 43 Am. St. R. 839; Lerarin
v. Lorfield, 107 Wis. 264; In re Scarritt, 76 Mo. 565, 43 Am. R. 768;
Chapsky v. Wood, 26 Kan. 650, 40 Am. R. 321, and note.
CUSTODY OF CHILDREN 435

Indeed it seems to be the general, if not the univer-
sal, rule that there must be some unfitness aside from
mere poverty or want of culture or position to warrant
interference with parental rights. It may be a positive
or moral unfitness, as where the parent is lewd, profligate,
drunken, criminal or cruel, or plainly negligent or indiffer-
ent as to the child’s ordinary physical, moral or intellec-
tual welfare and needs; or it may be wholly or partly
relative, as arising from the peculiar position in which
the parent has suffered the child to be placed, or even
from the position in which it or the parent has been placed
by circumstances beyond parental control. Thus, if the
father has suffered the child to remain in the custody of
another until its affections have become seated and en-
gaged, he will commonly be denied its custody, where to
award it to him would involve serious injury to the child
through the moral shock of sundering the ties and in-
terests attaching to what it has come to regard as its
home, or where a change of physical environment involved
in a change of custody would seriously endanger its health
and welfare.? Nor in these cases are the feelings and
affections of the foster parents to be ignored, though they
will not be permitted to outweigh the interests of the
child and the paramount legal right of the parent.? Even
where the child is cast with strangers through accident
or misfortune, without the consent or positive dereliction
of the parent, its welfare must still be regarded, and the
considerations above stated may prevail as against the
parent. The age, sex and health of the child must be

1 In re Finn, supra; In re Agar-Ellis, supra; Clark v. Bayer, 32 Ohio
St. 299, 30 Am. R. 593; Markwell v. Pereles, 95 Wis. 406; Lovell v.
House of the Good Shepherd, supra.

2 Chapsky v. Wood, supra; Richards ». Collins, 45 N. J. Eq. 283, 14
Am. St. R. 726; In re O’Neal (Mass.), 3 Am. L. Rev. 578; Sm. Cas.
on Pers. 14; Clark v. Bayer, 32 Ohio St. 299, 30 Am. R. 593; In re
D’Anna, 117 N. Car. 462.

*In re Scarritt, 76 Mo. 565, 43 Am. R. 768; Clark v. Bayer, supra;

Chapsky v. Wood, supra.
«In re O’Neal, supra; In re D’Anna, supra.
436 CUSTODY OF CHILDREN

properly considered. Thus, as between parents who are
separated, young or sickly children who need the care
and ministrations of the mother may be awarded to her
even though the separation is by her fault, at least until
the special need for her personal care and nurture has
ceased.!_ Where the child has reached the age of discre-
tion, its wishes will always be considered, but its choice
will never be permitted to lead it into improper custody,’
nor to override the claims of its natural guardians and
protectors.*

Where, after proper hearing, the custody of an infant
has been finally awarded, the matter is res adjudicata,
and its custody cannot be changed save upon a changed.
state of facts.*

It should be noted here that there are cases of extreme
parental or juvenile delinquency, misfortune or necessity
that demand that the state as parens patris assume
custody and control of the child, or remand it to special
custody, or subject it or its parent to special supervision.
This is shown later on.®

The power and authority of guardians other than nat-
ural ones over infant wards is discussed under the title
Guardian and Ward.®

481. Same—Contracts as to Custody.

Except in the case of contracts of apprenticeship duly
entered into in accordance with statutes, all agreements
whereby the parent assumes to relinquish the custody
and control of his child to another are void on grounds of

12 Story’s Eq. sec. 1341a; McKim ». McKim, 12 R. I. 462, 34 Am.
R. 694, and note; ante, sec. 448.

? Marshall v. Reams, 32 Fla. 499, 37 Am. St. R. 118; Richards ».
Collins, 45 N. J. Eq. 283, 14 Am. St. R. 726.

* Marshall ». Reams, supra. Compare In re Goodenough, 19 Wis.
274.

‘State v. Bechdel, 37 Minn. 360, 5 Am. St. R. 854. See also ante,
sec. 446.

6 See post, secs. 627, 628 et seq.

* See post, secs. 739 et seq.
DOMICILE OF CHILD 437

public policy, and hence are usually disregarded.' But
such agreements are not in all cases entirely ignored, par-
ticularly where they have been acted upon and the custody
of the child has been transferred thereunder, and such
custody will not be disturbed if the child has become so
strongly attached to its new home and custodians, and
they to it, that its custody cannot be changed without
risking its permanent happiness and welfare and inflicting
suffering upon its foster parents; and agreements for
custody may doubtless be otherwise considered as throw-
ing light upon the feelings and relations toward it of the
parties contending for its custody.’

482. Custody in Actions for Divorce.
The custody of minor children pending and after divorce
is considered elsewhere.®

483. Domicile of Legitimate Child.

The domicile of a legitimate child at birth (its domicile
of origin) is that of the father, if he be living, otherwise
it is that of the mother, and its domicile ordinarily changes
with that of the father, or of the mother during her widow-
hood.‘ If she remarries, however, it is held by many

1In re Agar-Ellis, 10 Ch. D. 49; Brooks v. Logan, 112 Ind. 183, 2
Am. St. R. 177, and cases cited; Chapsky v. Wood, 26 Kan. 650, 40
Am. R, 321; Hibbette v. Bains, 78 Miss. 695, 51 L. R. A. 839; State v.
Libbee, 44 N. H. 321, 82 Am. D. 223; In re Scarritt, 76 Mo. 565, 43
Am. R. 768; People v. Mercein, 3 Hill (N. Y.), 510; Hernandez ».
Thomas, 50 Fla. 522, 111 Am. St. R. 187, 2 L. R. A. (N.S.) 203; James
v. Cleghorn, 54 Ga. 9; Bentley v. Terry, 59 Ga. 555, 27 Am. R. 399,
See Georgia Code, sec. 1793.

2 Weir v. Marley, 99 Mo. 484, 6 L. R. A. 672; Chapsky ». Wood,
supra; Clark ». Bayer, 32 Ohio St. 299, 30 Am. R. 593; In re Scarritt,
supra; Shaw v. Nachtwey, 43 Ia. 653.

+See ante, secs. 446 et seq.

4 Johnstone v. Beattie, 10 Cl. & F. 42; Sommerville ». Sommerville,
5 Ves. 750; Sharpe v. Crispin, L. R. I. P. D. 611; Pottinger ». Wight-
man, 3 Meriv. 67; Lamar v. Micou, 114 U.S. 218, affirming 112 U.S.
452; Taylor ». Jeter, 33 Ga. 195, 81 Am. D. 202. As to the power of
technical guardians to change the domicile of the ward, see post, sec.
743; Lamar »v. Micou, supra.
438 DOMICILE OF CHILD

authorities that the domicile of her children by a former
marriage no longer changes with hers, for their domicile
and its incidents would then be under the control of one
legally a stranger to it, as the domicile of the wife follows
that of the husband by operation of law.' Their legal
domicile therefore remains as it was when the father died
or the mother remarried.” It is held by some authorities,
however, that where the child lives with its mother and
stepfather in their common home, that its domicile changes
with theirs.*

It has been held in at least one case that where a child
went to live with its widowed grandmother, who was its
nearest surviving relative, that she was its natural guard-
ian and that it acquired her domicile.‘

Mere separation of husband and wife does not confer
upon the latter a right to fix or alter the domicile of her
minor children, even though they are permitted to remain
with her,’ unless, perhaps, the husband has expressly
relinquished his parental authority or has been judicially
deprived of it. It has been held, however, that where
the father has deserted his minor children, their domicile
no longer changes with his;’ and where an absolute di-
vorce has been granted the wife, together with the unre-
stricted custody of her infant children, her domicile fixes
that of the children. During infancy a child cannot

1 See ante, sec. 117.

?Cumnar ». Milton, 3 Salk. 259; School Directors v. James, 2 W. &
8. (Pa.) 568, 37 Am. D. 525; Lamar »v. Micou, 112 U. S. 452; Allen ».
Thomason, 11 Humph. (Tenn.) 536, 54 Am. D. 55; Mears ». Sinclair,
1 W. Va. 185.

4 See Succession of Lewis, 10 La. Ann. 789, 63 Am. D. 600; Wheeler
v. Hollis, 19 Tex. 522, 70 Am. D. 363, 367; Blythe ». Ayres, 96 Cal.
532, 19 L. R. A. 40.

‘Lamar v. Micou, 112 U. 8. 452, affirmed in 114 U. 8. 218.

*Van Hoffman ». Ward, 4 Redf. (N. Y.) 244; Cannon’s Estate, 15
Pa. Co. Ct. Rep. 312.

°See Hunt ». Hunt, 94 Ga. 257.

7In re Vance, 92 Cal. 195; People ». Dewey, 23 Misc. N. Y. 267, 50
N. Y. Supp. 1013.

® Fox v. Hicks, 81 Minn. 197, 50 L. R. A. 663.
CONTROL AND DISCIPLINE OF CHILD 439

acquire a domicile of choice, for it is deemed incapable of
intelligent choice. Even a male infant who has married
has no such power,” though upon marriage a female infant
takes the domicile of her husband.’ Upon arriving at
full age the infant has an absolute right to fix his own
domicile, provided he is compos mentis. If he is insane,
however, he can acquire no domicile of choice, though
it has been held that one insane when he reached the age
of majority, and who continued so afterward, would not be
deemed emancipated, and his domicile would follow that
of his father in whose charge he remained.‘

PARENTAL RIGHT OF CONTROL AND DISCIPLINE

484. In General.

Parents and those standing legally in loco parentis
have an undoubted right to control and discipline minor
children. This right exists for the benefit of the child
and the family to which it belongs and for the protection
of the public, which has an interest in its upbringing as
an orderly and useful member of society. For abuse of
this right, however, where it takes the form of corporal
punishment or restraint, the parent is liable criminally
for assault or false imprisonment, or,* if the child dies,
for manslaughter or murder, depending upon the circum-
stances of the case.° It seems settled, however, on grounds
of public policy for the peace of families, that a parent is
not civilly liable to a minor child for inflicting excessive
punishment upon it, nor for any other personal tort affect-
ing it while the relation of parent and child subsists,’

1 Marks v. Marks, 35 Fed. Rep. 321; Taylor v. Jeter, 33 Ga. 195, 81
Am. D. 202.

2 Trammell ». Trammell, 20 Tex. 406.

3 Trammell 7. Trammell, supra; Blumenthal v. Tannenholz, 31 N. J.
Eq. 194.

4Sharpe »v. Crispin, L. R. I. P. D. 611; Hahn ». Cooper, 84 Wis.
633.

5 Fletcher v. People, 52 Ill. 395.

* Fletcher v. People, supra; Reg. ». Griffin, 11 Cox C. C. 402.

7 McKelvy v. McKelvy, 111 Tenn. 388, 102 Am. St. R. 787, 64
440 CONTROL AND DISCIPLINE OF CHILD

though the rule is otherwise as to teachers,’ masters of
servants or apprentices,? and probably as to guardians,’
and others who stand toward the infant in loco parentis
merely.*

485. Limits of Right of Discipline.

The precise limits of parental right in inflicting punish-
ment are difficult to define. Certain it is that the law will
not interfere with it upon light or frivolous grounds, and
where the parental or quasi parental relation is once
shown, the general presumption is that the right was
properly and justifiably exercised.» The parent -or one
standing in loco parentis must proceed in good faith,
however, and not male animo from motives of cruelty,
wantonness, or revenge, and if he acts bona fide he is to
be treated in the main like a magistrate who acts within
his jurisdiction and is not liable for errors of judgment
upon doubtful questions of fact.6 The guilt or innocence
of the child, or the evidence of it, are therefore to be con-
sidered chiefly, if not wholly, as bearing upon the question
of good faith.

The age, health and sex of the child, the nature of its
offence, the instrument or agency of punishment used and
the manner in which it has been applied, are all proper
subjects for consideration, and if the jury finds that the
defendant proceeded from motives of wickedness, cruelty

L. R. A. 991; Hewlett v. George, 68 Miss. 703, 13 L. R. A. 682; Roller
v. Roller, 37 Wash. 242, 107 Am. St. R. 805, 68 L. R. A. 893; Foley ».
Foley, 61 Il. App. 577. That the cruelty of the parent is ground for
superceding his custody and guardianship. See ante, sec. 480.

1See post, sec. 534.

? See post, sec. 593; Gould v. Christianson, Blatchf. & H. (U. 8.) 507;
Matthews ». Terry, 10 Conn. 455; Cooper v. State, 8 Baxt. (Tenn.) 324,
35 Am. R. 704.

+See post, sec. 764.

4Clasen v. Pruhs, 69 Neb. 278, Sedgwick, J., dissenting.

* Anderson v. State, 3 Head (Tenn.), 455, 75 Am. D. 774; Van Vactor
v. State, 113 Ind. 276, 3 Am. St. R. 645.

* Hinkle v. State, 127 Ind. 490; State ». Koonse, 123 Mo. App. 655.
*
*s,
CONTROL AND DISCIPLINE OF CHILD. 441

or revenge, due allowance perhaps being made for such
feelings of sudden irritation as juvenile delinquencies are
apt to excite, they should convict. On the other hand,
they are bound to acquit, at least by the weight of au-
thority, even though the punishment was in their. judg-
ment excessive and unwarranted by the offense, unless
it was so manifestly beyond reason, whether it resulted
in permanent injuries or disfigurement or not, as to evince
wantonness or a malicious and depraved heart;! though
some authorities appear to hold that the parent should
be convicted if the punishment was, in their judgment,
unreasonable and excessive.? Doubtless, however, the in-
fliction of cruel and unusual punishments, particularly
where they result in the permanent injury or disfigure-
ment of the child, would everywhere be regarded. as in-
volving the parent in legal guilt.*

486. Right to Control the Education of Child.

The duty of parents to educate their children and their
right to have them admitted to the public or common
schools is elsewhere noticed.‘ It is the undoubted right
of the father, so long as the child is in his lawful custody,
to determine generally, due regard being had to the com-
pulsory education laws, the amount and character of the
training, intellectual, moral and religious, that such child
shall receive, nor can he debar himself of this right by
antenuptial agreement. The question particularly of

1 Schouler’s Dom. Rel. (4th Ed.), sec. 244; People v. Green, 155 Mich.
524, 21 L. R. A. (N. 8.) 216; Boyd ». State, 88 Ala. 169, 16 Am. St. R.
31; Dean ». State, 89 Ala. 46; Fletcher v. People, 52 Ill. 395; State v.
Koonse, supra; State v. Dickerson, 98 N. Car. 708. Compare State ».
Jones, 95 N. Car. 588, 59 Am. R. 282.

2 Johnson v. State, 2 Humph. (Tenn.) 283, 36 Am. D. 322; Patiter-
son v. Nutter, 78 Me. 509, 57 Am. R. 818; Hinkle »v. State, 127 Ind.
490; Neal v. State, 54 Ga. 281.

3 Hinkle v. State, supra; Boyd v. State, 88 Ala. 169, 16 Am. St. R. 31;
Neal v. State, 54 Ga. 281; State ». Long, 117 N. Car. 791; State ».
Pendergrass, 19 N. Car. 365, 31 Am. D. 416.

4 See post, secs. 497, 531.

+ In re Agar-Ellis, 10 Ch. D. 49, 24 Ch. D. 317.
5
7
442 CONTROL AND DISCIPLINE OF CHILD

religious education has been but little considered in this
country, where there is no established church.!. The
father’s right to control the education of his child can no
doubt be forfeited, and will usually be deemed so by what-
ever unfitness deprives him of the right to its custody.’
In any event, he will not be permitted to arbitrarily con-
trol the conscience of the child in religious matters after
it has reached the age of discretion,’ and more particularly
where he has permitted it to be reared or educated in a
faith different from his own, or has voluntarily relin-
quished it to the lawful custody of others.

1 The English cases are discussed in Schouler’s Dom. Rel. (5th Ed.),
sec. 235.

2 In re Agar-Ellis, supra.

3 Com. v. Armstrong, 1 Pa. L. J. R. 392; Com. v. Sigman, 2 Pa. L.
J. R. 36, 3 Pa. L. J. R. 252.

4 Whalen v. Olmstead, 61 Conn. 263, 15 L. R. A. 598.
CHAPTER XXXIX

MUTUAL RIGHTS AND DUTIES OF PARENT AND CHILD—PRO-
TECTION, MAINTENANCE AND EDUCATION OF CHILD

487. Duty of Parent to Protect Child.

It is said that ‘‘the duty of the parent to protect the
child is a natural one which is rather permitted than en-
joined by any municipal laws; nature in this respect,
working so strongly as to need rather a check than a
spur.” + A minor child cannot sue the parent civilly for
any default in this regard, nor, indeed, for any other
personal wrong unless, perhaps, it is inflicted after the child
has been fully emancipated from parental control,? though
the parent may be prosecuted criminally for gross delin-
quencies in this respect,? or for assaults upon the child.

But whether the child be a minor or an adult, the parent
is no doubt justified in using such force in its defense as
he might lawfully use for his own. In fact this is simply
a branch of the more general rule which justifies anyone
in the use of such force as the apparent exigencies of the
case demand in repelling assaults upon members of his
family or household.’ The parent, however, is clearly
liable for inflicting bodily injury upon another where
the only justification is a past injury to the child.®

The parent may uphold the child in its lawsuits with-
out being guilty of maintenance, though if the motive

+1 Bl. Com. 450.

2See Taubert v. Taubert, 103 Minn. 247.

3 See post, secs. 489, 490.

4See ante, secs. 484, 485.

5 Higgins ». Minagan, 76 Wis. 298; Commonwealth v. Malone, 114
Mass. 295; State v. Johnson, 75 N. Car. 174; State ». Melton, 102

Mo. 683.
6 Sowell ». McDonald, 58 Miss. 251.

443
444 MAINTENANCE OF CHILD

be direct profit to himself the transaction is champertous
and illegal.!

DUTY OF PARENT TO MAINTAIN AND EDUCATE CHILD

488. Parental Duty of Support—In General.

The duty of parents to supply support or maintenance
to their children is affirmed in some way in all civilized
legal systems. Its precise nature and extent, however,
at least at common law, and the remedies for its enforce-
ment seem to be rather vaguely and imperfectly defined.
Indeed some courts have even gone so far as to say that
the duty of the parent to support the child is a mere moral
one, a statement that can hardly be understood in its
broadest sense even in those jurisdictions where it has
been made,? for the parent cannot claim reimbursement
from the child or its estate for the expenses of its ordinary
support in accordance with parental means, nor would
an express contract by the child after reaching majority
to pay for support furnished during infancy be binding
upon it unless based upon a new and independent con-
sideration.

It should be understood at the outset, however, that
the child has no such right to support as entitles it to
bring an action against the parent to realize it, nor for
any injury it may have suffered through neglect of that
duty.> The child’s right to support, therefore, can only
be realized:

1 Barker v. Barker, 14 Wis. 142; Proctor v. Cole, 104 Ind. 380. This
rule applies generally between near relatives, and probably between
master and servant. In re Evans, 22 Utah, 366, 83 Am. St. R. 794, 53
L. R. A. 952.

2See Shelton v. Springet, 11 C. B. 452; Hunt ». Thompson, 4 II.
179, 36 Am. D. 540; Kelly v. Davis, 49 N. H. 187, 6 Am. R. 499; Free-
man v. Robinson, 38 N. J. L. 383, 20 Am. R. 399; post, sec. 493.

3 Compare post, sec. 495.

4 Perkins ». Westcoat, 3 Col. App. 338. As to adult children, see
post, sec. 499. As to criminal liability for parental neglect to supply
the wants of the helpless child, see post, sec. 490.

5 Huke v. Huke, 44 Mo. App. 308.
MAINTENANCE OF CHILD 445

1. Through the action of the state, as next explained.

2. Through the voluntary action of the parent or by
the child acting with his express or implied authority.

3. In some states through the intervention of third
persons who, having relieved the necessities of the child,
may recover quasi ex contractu against the delinquent
parent.

489. Through the Action of the State.

The policy of the common law, was said to be affirmed
and extended in England by the statute of 43 Eliz., Chap.
2, amended by 5 Geo. I, Chap. 8, which sets off its almost
brutal practicality regarding the support of children. This
statute provides that the father and mother, grandfather
and grandmother of poor, old, blind, lame and impotent
persons shall maintain them as their own charges, if of
sufficient ability; and if a parent runs away and leaves his
children, the parish authorities, by summary judicial proc-
ess, may seize upon his or her rents, goods and chattels.
and dispose of them toward their relief.

The child under this statute can claim support solely
on the ground, apparently, that its very youth renders it
an impotent person, unless it is otherwise so through
accident or disease, the penalty for parental neglect being
limited in any case to twenty shillings a month. The policy
of the common law as extended by the statutes is expressed
by Blackstone thus: ‘‘For the policy of our laws, which
are ever watchful to promote industry, did not mean to
compel a father to maintain his idle and lazy children in
ease and indolence, but thought it unjust to oblige the
parent, against his will, to provide them with superfluities
and other indulgences of fortune; imagining they might
trust to the impulse of nature, if the children were deserv-
ing of such favors.” !

The statute of Elizabeth has been substantially reén-
acted in some of our states, and in others it is regarded as
part of the common law.

:1 Bl. Com. 448; Stable v. Dixon, 6 East, 166; 2 Kent’s Com. 191.
446 MAINTENANCE OF CHILD

490. Same—Criminal Liability.

In a number of states abandonment of wife and children
and failure to support them, by a father capable of render-
ing them support, is a punishable offense.'

Even at common law if the parent, having ability, is
guilty of gross neglect in failing to supply his helpless
child with necessary food, shelter or medical attendance,
and it dies in consequence, he is guilty of manslaughter,?
and if such neglect is the result of deliberate malice, he is
guilty of murder.’

491. Same—Liability of Parent on Contract—Agency
of Child.

Except in those states where parental liability for neces-
saries is placed under certain circumstances upon the
broad ground of quasi contract, the liability of parents to
third persons who supply their infant children with nec-
essaries rests upon contract made in fact, either with the
parent directly or with the child or another as agent of
the parent, under an authority expressly or impliedly
conferred in fact, or by estoppel. Even though the
infant has bought necessaries on the credit of the parent
without his express or implied authority, it is said that
the moral obligation of the parent to support the child
is sufficient consideration for a subsequent promise to
pay for them,® though it is better, perhaps, to put the

1¥For an excellent statute of this kind, see Rev. Stat. Wis. (1898),
sec. 4587c.

2 Reg. v. Rugg, 12 Cox. C. C. 16; Reg. v. Senior, 19 Cox. C. C. 219.
As to failure to supply medical attendance through belief in Divine
Healing or in Christian Science, see Reg. ». Waggstaffe, 10 Cox. C. C.
580, holding the parent not liable. But see People v. Pierson, 81 N. Y:
Supp. 214; State ». Chinoweth, 163 Ind. (1904) 94.

3 Lewis v. State, 72 Ga. 164, 53 Am. R. 835.

4See Schouler’s Dom. Rel. (5th Ed.), sec. 241, and cases cited post,
sec. 493; Carney v. Barrett, 4 Oreg. 171, 174; Kelly ». Davis, 49 N. H.
187, 6 Am. R. 499.

5See Jordan v. Wright, 45 Ark. 237. Compare Freeman v. Robin-
son, 38 N. J. L. 383, 20 Am. R. 399.
MAINTENANCE OF CHILD 447

parent’s liability in such cases upon the ground of agency
or ratification. Upon principle and authority, however,
the parent is not bound by a promise to pay for goods or
services previously furnished on the credit of the child,
whether they were necessaries or not, save upon some
new consideration moving to the parent.’

While it is presumed that a child at home with the
parent is properly supplied with necessaries, and third
persons have no right to interfere save in case of plain
neglect of parental duty,? still, a contract on his part to
pay for necessaries, or an agency on the part of the child
to bind him for them, will be quite readily implied against
him; and it is usually for the jury to say when such a
contract exists or such an authority was conferred.* Thus,
the parent who has paid without dissent for similar articles
purchased by the child upon his credit will be liable,*
and so where he knowingly permits the child to retain
what he has purchased on his credit. And if the parent
permits another to support, or educate, or otherwise supply
necessaries to his infant child, knowing that he is expect-
ing to be paid, he will be liable upon an implied contract
to pay him.®

492. Same—Child Away From Home.

Where the child does not live with the parent, and par-
ticularly where it is apparently self supporting, or has
left home against the parent’s consent and not on account

1Freeman v. Robinson, supra; Dodge v. Adams, 19 Pick. .(Mass.)
429; Holt v. Baldwin, 46 Mo. 265, 2 Am. R. 515.

2 See post, sec. 493.

3Schouler’s Dom. Rel. (5th Ed.), sec. 241; Fowckes ». Baker, 29
Tex. 135, 94 Am. D. 270; Freeman ». Bonus supra; Neilson v.
Ray, 17 N. Y. Supp. 500; Jordan v. Wright, supra; Owen »v. White,
5 Port. (Ala.) 435, 30 Am. D. 572; Lamson ». Varnum, 171 Mass. 237.

4 McKenzie v. Stevens, 19 Ala. 691; Jordan v. Wright, supra; Plotts
v. Rosebury, 28 N. J. L. 146.

5 Swain v. Tyler, 26 Vt. 9; Conboy v. Howe, 59 Conn. 112.

° Clark v. Clark, 46 Conn. 586. And see McGoon ». Irvin, 1 Pinn.
(Wis.) 526, 44 Am. D, 409.
448 MAINTENANCE OF CHILD

of his cruelty or other fault, the father is not liable for its
necessaries except by virtue of contract or agency, express
or implied in fact.!| Agency or a contract in such cases
will not be readily implied, but must be shown by a fair
preponderance of the evidence at least. If the child is
away from home by the voluntary consent of the parent,
however, even though it may be in some measure self
supporting, the liability of the parent is pean the
same as if the infant had remained at home.’

493. Same—Liability on Quasi Contract.

In England and in a number of our states, the parent
is not liable for necessaries supplied an infant child save
on the basis of true contract entered into by him directly
or through the agency of a third person or the child, ex-
pressly or impliedly conferred in fact or by estoppel.’

By the weight of authority in this country, however,
the obligation of a parent to those who have supplied
necessaries to his needy minor children in cases of his
plain and palpable neglect of duty, is put squarely upon
the ground of quasi contract, or a so-called ‘contract
created by law,” independent of the will of the parent.
In these states, therefore, all that need be shown, ap-
parently, against the parent is his refusal or palpable
neglect to perform his duty of support, his ability to per-

1 Hunt v. Thompson, 4 Ill. 179, 36 Am. D. 538; Everett v. Sherfey,
1 Ia. 358, distinguished and reviewed in Porter v. Powell, 79 Ia. 151, 18
Am. St. R. 353, 7 L. R. A. 176; Bradley v. Keen, 101 Ill. App. 519.

2 Cooper v. McNamara, 92 Ia. 243, and so where the child is away
voluntarily against the consent of the parent if it is of tender years
and the parent makes no attempt to regain custody, Bradley v. Keen,
101 Til. App. 519.

* See ante, sec. 191; Bazely v. Forder, L. R. 3 Q. B. 559; Shelton v.
Springett, 11 C. B. 452: Mortimer ». Wright, 6 Mees. & W. 486; Kelly
v. Davis, 49 N. H. 187, 6 Am. R. 499, and authorities cited; Gordon 2.
Potter, 17 Vt. 348; Hunt ». Thompson, 4 Ill. 179, 36 Am. D. 538;
McMillen v. Lee, 78 Ill. 443; Holt ». Baldwin, 46 Mo. 265, 2 Am. R.
515; Freeman ». Robinson, 38 N. J. L. 383, 20 Am. R. 399; Jackson ».
Mull. 6 Wyo. 55.
MAINTENANCE OF CHILD 449

form it, its performance by the plaintiff, and the fact that
the child was without ability through youth, imbecility
or illness to provide for itself.1_ Furthermore, it seems
that the things supplied must be strictly necessaries, or
such as are essential to relieve the child’s actual wants
in accordance with the parent’s means, as to which the
party supplying them acts at his peril.2 A parent who is
willing to support his children at home is not bound to
provide for them elsewhere, unless he has wrongfully
driven them away;* nor is the parent liable where the
child from home has been emancipated otherwise than
by the misconduct of the parent,‘ unless through illness
or otherwise it becomes unable to provide for itself.

Generally a father is not liable for necessaries furnished
an adult child though it is a member of his household,
unless they were furnished at his request or on his au-
thority, express or implied.®

494. Liability of Mother—Stepfather.
Ordinarily the mother is under no obligation to support

1 Van Valkenburg v. Watson, 13 Johns. (N. Y.) 480, 7 Am. D. 395;
Gilley v. Gilley, 79 Me. 292, 1 Am. St. R. 307; Garland v. Dover, 19
Me. 441; Cromwell ». Benjamin, 41 Barb. (N. Y.) 558; Manning ».
Wells, 8 Misc. (N. Y.) 646, and cases cited; Porter v. Powell, 79 Ia.
151, 18 Am. St. R. 353, 7 L. R. A. 176; Owen v. White, 5 Port. (Ala.)
435, 30 Am. D. 572; Gatts v. Clark, 78 Ill. 229; "Dennis ». Clark, 2
Cush. (Mass.) 347, 48 Am. D. 671; Brow v. Brightman, 136 Mass. 187.
See also Zilley ». Dunwiddie, 98 Wis. 428, 67 Am. St. R. 820, 40 L.
R. A. 579; Pretzinger v. Pretzinger, 45 Ohio St. 452, 4 Am. St. R. 542.

2 Van Valkenburg 7. Watson, supra; Peacock ». Linton, 22 R. I. 328,
53 L. R. A. 192; Ketchem v. Marshland, 18 Misc. (N. Y.) 450, 42 N. Y.
Supp. 7. A reasonable amount of education is within this rule. Cory
v. Cook, 24 R. I. 421.

3 Owen v. White, 5 Port. (Ala.) 435, 30 Am. D. 572; Hunt v. Thomp-
son, 4 Ill, 179, 36 Am. D. 538; Angel v. McLellan, 16 Mass. 28, 8 Am.
D. 119; White ». Henry, 24 Me. 533.

‘ Kubic », Zemke, 105 Ia. 269; Nightingale ». Withington, 15 Mass,
272, 8 Am. D. 101; Varney v. Young, 11 Vt. 258; Hollingsworth »,
Swedenborg, 49 Ind. 378, 19 Am. R. 687; Porter v. Powell, 79 Ia. 151,
18 Am, St, R, 353, 7 L. R. A. 176.

5 Blachley v, Laba, 63 Ia. 22, 50 Am. R, 724, and cases cited,

29
450 MAINTENANCE OF CHILD

her minor children while the husband lives... A widow,
however, is bound to support them to the same extent
as the father, unless they have means or ability to support
themselves.? A stepfather is bound to support a stepchild
only when he receives it into his household on the footing
of a child.? But unlike the natural father, he may law-
fully bargain with its guardian for a reasonable allowance
for its support out of its estate,‘ though he is not entitled
to reimbursement for support voluntarily furnished °
unless, perhaps, the circumstances are such that a natural
parent would be so entitled under rules next considered.

495. Allowing Support out of Child’s Estate.

When the child has property of its own and the parent
is unable to-support it, or is unable to support and educate
it in a manner befitting its fortune, a court of equity may
make him suitable allowance for this purpose out of its
estate,® or even reimburse him for past expenditures in

1 Gilley v. Gilley, 79 Me. 292, 1 Am. St. R. 307; Finch ». Finch, 22
Conn. 411; Gleason v. Boston, 144 Mass. 25. Consult local statutes
on this point. See ante, sec. 255.

? Hammond ». Corbett, 50 N. H. 501, 9 Am. R. 288; Dedham ».
Natick, 16 Mass. 135; Fulton ». Fulton, 52 Ohio St. 238, 240, 49 Am.
St. R. 720, 29 L. R. A. 678; Mowbry ». Mowbry, 64 Ill. 383; Matter of
Besondy, 32 Minn. 385, 50 Am. R. 579. See also McGee v. McGee, 91
Ill. 548; Girls’ Ind. Home ». Fritchey, 10 Mo. App. 344; Jenness ».
Emerson, 15 N. H. 486.

*Stone v. Carr, 3 Esp. 1; St. Fernando, etc., Academy v. Bobb, 52
Mo. 357; Engelhart v. Young, 76 Ala. 534; Livingston ». Hammond,
162 Mass. 375. But see Stats. 4 & 5 Wm. IV, Chap. .76.

‘Matter of Ackerman, 116 N. Y. 654; Grosman »v. Lauher, 29 Ind.
618.

5 Smith v. Rogers, 24 Kan. 140, 36 Am. R. 254.

*3 Pomeroy’s Eq. Jur., sec. 1309; Watts v. Steele, 19 Ala. 656, 54
Am. D. 207; In re Besondy, 32 Minn. 385, 50 Am. R. 579. A trust fund .
for the support and education of a child, which has been created by
will or otherwise, may be applied to that purpose though the father is
able to support it from his own earnings or means. Myers v. Myers,
2 McCord Eq. (8. Car.) 214, 16 Am. D. 648; Freeman ». Coit, 27 Hun.
(N. Y.) 447; National Valley Bank », Hancock, 100 Va. 101, 57 L. Re
A. 728, 93 Am. St. R. 933, and note.
EDUCATION OF CHILD 451

excess of his reasonable abilities and in keeping with the
child’s means.! Courts of equity in such cases have a
broad discretion, and it is hardly possible to lay down
more explicit rules, either as to the circumstances that
warrant an allowance, or the amount that should be
allowed.?- The mothers’ claims in such cases are rather
more liberally viewed than the fathers’.*

496. Support of Children After Divorce.
This matter is discussed in connection with the subject
of divorce.*

497. Duty of Parent to Educate Child.

At common law the duty of the parent to educate his
children appears to have been a moral rather than a legal
one.® His right to educate them or to have them educated
in accordance with his own views has been discussed under
another head,® and his right to have them admitted to
the common or public schools will be noticed later on.”
It is enough to say here that probably in all our states
are laws directed toward parents, guardians and others
having control of the young and responsible for their
welfare, making it their duty to give children under their
charge a certain amount of schooling under proper con-
ditions and penalizing their failure to do so, and that such
laws are usually upheld as constitutional.®

1 Beardsley v. Hotchkiss, 96 N. Y. 201; In re Besondy, supra. No
allowance will be made where the value of its services equals the cost
of its support. Burha v. Richardson, 14 Ky. Law. 233; Com. v. Lee,
120 Ky. 433.

2 Jervoise v. Silk, Cooper’s Ch. Cas. 52; Com. v. Lee, supra.

3 Pierce v. Pierce, 64 Wis. 73, 54 Am. R. 581; Perkins v. Westcoat,
3 Col. App. 338.

4See ante, sec. 452.

5 See 1 Bl. Com. 450; 2 Kent’s Com. 195.

6 See.ante, sec. 486.

7 See post, sec. 531.

8 See State v. Jackson, 71 N. H. 552, 60 L. R. A. 739; State v. Bailey,
157 Ind. 324, 59 L. R. A. 435, and cases cited in the opinion; Freund’s
Police Power, secs. 264 et seq., and statutes cited.
452 SUPPORT OF PARENT BY CHILD

498. Duty of Parent to Bury Deceased Child.

The parent is bound to give decent burial to the re-
mains of his minor child if able to do so; and if, through
his absence, neglect or other cause than absolute poverty,
some one else discharges this duty with the expectation of
compensation, he could doubtless recover quasi ex con-
tractu from the parent the reasonable expense of so doing.
In fact it would seem that the rules applicable here would
be substantially those that define the duty of the husband
toward the wife. Doubtless, however, where the child
leaves adequate estate, an indigent parent, at least, would
be entitled to reimbursement therefrom.?

499. Duty of Child to Support Parent.

At common law the duty of a child to support its parents
is a purely moral one, and no obligation will be implied
against a child in favor of one who has relieved the ne-
cessities of its parents in the absence of facts warranting
an inference of a contract, either express or implied in
fact, to pay for necessaries supplied the parent.? Even an
express promise to pay for support voluntarily furnished
a parent is not binding on the child unless based upon a
new and valuable consideration. In England and most
of our states are statutes imposing an obligation upon
children to support their indigent and helpless parents.®
These statutes, however, are a part of the poor laws and
are usually enforcible by the public and not by individ-
uals, and hence work no change in the obligation of the
child toward private persons who have voluntarily re-
lieved a needy and helpless parent. That the child re-

1 See Matter of Igglesden, 3 Redf. (N. Y.) 375; Sullivan ». Horner,
41 N. J. Eq. 299; Rowe v. Raper, 23 Ind. App. 27, 77 Am. St. R. 411.

2 Rowe v. Raper, supra.

* Edwards v. Davis, 16 Johns. (N. Y.) 281; Belknap ». Whitmire, 43
Oreg. 75; Dawson v. Dawson, 12 Ia. 512.

‘Belknap o. Whitmire, supra.

5 See ante, sec. 489.

‘McCook County ». Kanmoss, 7 8. Dak. 558, 58 Am. St. R. 855,
SUPPORT OF PARENT BY CHILD 453

ceives and supports a parent in his household, however,
gives rise to no presumption of a contract by the parent
to pay for such support, or by the child to remunerate
the parent for labor or services in or about the common
home.! There must be an express contract or proof of
circumstances from which a contract to pay can be fairly
and reasonably deduced.’

500. Same—Contracts of Child to Support Parent.

Contracts whereby a parent conveys all, or substan-
tially all of his property to a child, in consideration of
an agreement by the child to support the parent dur-
ing the remainder of his life are sufficiently common
and important to call for notice here. Where the par-
ent is old and infirm, such contracts are of course care-
fully scanned for fraud and undue influence at their
inception, under principles elsewhere stated.? Even where
they are not affected by fraud at their inception, the
modern tendency is to afford the parent adequate pro-
tection. They are, as a rule, made by people well along
in years, and are intended to secure them proper and
suitable support and maintenance in their declining days,
while relieving them of the care and responsibilities inci-
dent to the management of their affairs. They part with
their property in the expectation and belief that their
future necessities and comforts are provided for, and in
the faith that natural affection and filial duty will secure
faithful discharge of the obligations assumed by the child.
In view of this element of confidence, the nature of the
contract and the circumstances under which it is made,
most courts discard technical refinements of construc-
tion, and take the broad view that an agreement for
support, whatever its form, is not a mere covenant for

31 L. R. A. 461; Belknap ». Whitmire, supra; Duffy v. Yorde, 149 Cal.
140, 4 L. R. A. (N.S.) 1159, 117 Am. St. R. 125.

1 Pritchard ». Pritchard, 69 Wis. 373.

2 See ante, sec. 474, and cases cited; Pritchard v. Pritchard, supra.

> See post, next section. :
454 SUPPORT OF PARENT BY CHILD

the breach of which damages may be awarded, but may
be treated as in the nature of a condition subsequent upon
breach of which the parent may have his property re-
stored to him, or the agreement made a lien thereon, or
such other relief as may be appropriate to the case.!

1 Abbott v. Sanders, 80 Vt. 179, 13 L. R. A. (N. 8.) 725, 180 Am. St.
R. 974; Bruer ». Bruer, 109 Minn. 260; Richter v. Richter, 111 Ind.
456; Dodge v. Dodge, 92 Mich. 109; Reader v. Reader, 89 Ky. 529;
Stebbins v. Petty, 209 Ill. 291, 101 Am. St. R. 243; Glocke »v. Glocke,
113 Wis. 303, 57 L. R. A. 458. See Hathaway v. Hathaway, 125 N. W.
(Mich., 1910) 683, and extended note to Abbott ». Sanders, supra, in
13 L. R. A. (N.S.) 725.
CHAPTER XL

CONTRACTS, GIFTS AND CONVEYANCES BETWEEN PARENT
AND CHILD—ADVANCEMENTS

501. General Rules as to Dealings Between Parent
and Child.

The gifts and conveyances of a child during its minority,
whether to a stranger or to its parent, are voidable by the
child on the ground of infancy, and the same is generally
true of most contracts that the child enters into during
infancy, either with its parent or third persons, as is later
explained.! Even though the child has attained full age
and capacity, parental influence may, and very often does,
continue for a considerable time. For this reason gifts,
conveyances and beneficial contracts by the child in favor
of the parent, or one in loco parentis, made shortly after
the child has attained majority, are presumed to have
been made under pressure of parental influence and au-
thority. While this presumption will naturally vary in
strength with the facts and circumstances of each particu-
lar case, the general doctrine has been well expressed as
follows: ‘‘The legal right of a person who has attained his
full twenty-one years to execute deeds and deal with his
property is undisputable. But where a son, recently after
attaining his majority, makes over property to his father
without consideration, or for an inadequate consideration,
a court of equity expects that the father shall be able to
justify what he has done; to show, at all events, that the
son was a free agent; that he had adequate independent
advice; that he was not taking an imprudent step under
parental influence; and that he perfectly understood the

1See post, sec. 541.
455
456 DEALINGS BETWEEN PARENT AND CHILD

nature and extent of the sacrifice he was making and was
desirous of making it.” ! After the child is mature, how-
ever, and the possibility of paternal pressure and influ-
ence is removed, the presumption ceases. Indeed the pre-
sumption of undue influence may even be reversed, as
where the transaction is beneficial to the child as against
a parent who, though still generally competent, is suffer-
ing from the weaknesses and aberrations of age, and more
particularly where the parent has become physically or
morally dependent upon the child, and the transaction,
if sustained, would disappoint the just expectations of
others naturally entitled to the parent’s bounty.’

602. Same—Gifts, Loans and Advancements from
Parent to Child.

The parent may make a simple loan to his child, in
which case repayment must ordinarily be made at all
events, either to the parent or his estate. The parent,
on the other hand, may make an absolute gift to the
child, when the child holds it absolutely free from any
future accountability to the parent or to his estate.*

To be distinguished from a strict gift or loan, however,
is what is technically termed an advancement. An ad-
vancement may be defined as an absolute gift by a parent
or one standing in loco parentis, to his child during the
lifetime of the parent, of a portion or all of the share that
would fall to the child under the statute of distributions
or descent, by way of anticipation.‘

1 Per the Lord Chancellor in Savery v. King, 5 H. L. Cas. 627, 655;
Hannah v. Hodgson, 30 Beav. 19. Further as to this principle, see
Noble v. Moses, 74 Ala. 604; Bergen v. Udall, 31 Barb. (N. Y.) 9;
Baldock ». Johnson, 14 Oreg. 542; Worrall’s Appeal, 110 Pa. 349. As
to the similar and perhaps stronger presumption in dealings between
guardian and ward, see post, secs. 763, 768.

* Towson v. Moore, 172 U. 8. 17; Whelan v. Whelan, 3 Cow. (N. Y.)
537; Highberger ». Stiffler, 21 Md. 338, 83 Am. D. 593; Stahl v. Stahl,
214 Ill. 131, 68 L. R. A. 617, 105 Am. St. R. 101.

3 See post, sec. 505; Smith v, Smith, 7 C. & P. 401.

‘For other definitions, see Rickenbacker ». Zimmerman, 10 8. Car.
GIFTS, LOANS AND ADVANCEMENTS TO CHILD 457

503. Origin and Nature of Advancements.

The doctrine of advancements is said to rest upon the
English statute of distributions, 22 and 23 Car. II, Chap.
10, which is generally recognized as part of the common
law in force here, except so far as it is modified by local
statutes. Its reason is found in the presumed intention
of the parent to deal equally with his children, unless a
contrary intention appears.1 The chief peculiarities of
an advancement are, that while the child who receives
it is never bound to refund it to the parent or to his estate,
even though other heirs or distributees suffer in conse-
quence, still, if the child would claim a share in the intes-
tate parent’s estate, he must suffer the value of the ad-
vancement to be brought into hotchpot, as next explained.’

504. Same—Determination of Share of Child Ad-
vanced—*“ Hotchpot.”’

In order to arrive at the share of the child advanced,
the advancement must be brought into “hotchpot.”’ In
other words, the value of the advancement is added to
that of the rest of the estate and the sum total is then
divided according to statute, and the child advanced is
entitled to his full share, under the statute, less the value
of the advancement.* If the value of the advancement
equals or exceeds his distributive share as thus ascertained,
the child advanced, though entitled to nothing, is not
bound to relinquish any part of the advancement.‘

110, 30 Am. R. 37; Darne »v. Lloyd, 82 Va. 859, 3 Am. St. R. 123; Hat-
tersly v. Bissett, 51 N. J. Eq. 597, 40 Am. St. R. 532; Grattan v. Grat-
tan, 18 Ill. 167, 65 Am. D. 726; 2 Woerner’s Am. L. of Administration,
sec. 552.

1See Thornton’s Gifts and Advancements, sec. 523.

2 Wilson v. Wilson, 18 Ala. 176; Sims v. Sims, 39 Ga. 108, 99 Am. D.
450; Walker ». Brooks, 99 N. Car. 207; Grattan 2. Grattan, 18 Ill. 167,
65 Am. D. 726.

3 Grattan v. Grattan, supra; Lindsley ». McIver, 57 Fla. 466. The
equivalent of hotchpot is in the civil law termed collation.

‘ Jackson v. Jackson, 28 Miss. 674, 64 Am. D. 114; In re Elliott’s

Est., 98 Mo. 384.

‘ .o8, eeu
458 GIrts, LOANS AND ADVANCEMENTS TO CHILD

In computing the value of an advancement, the general
rule, in the absence of statute, is to determine the actual
value of the property at the time the advancement took
effect, without allowing for subsequent shrinkage or in-
crease, or for interest or income prior to the death of the
parent,! though interest is usually chargeable for the
period between the donor’s death and the distribution
of his estate.?

By the English law, the doctrine of advancement and
hotchpot was practically confined to personalty, but in
this country it is quite generally extended to real estate.
Details on this subject, however, must be sought in local
statutes and decisions.®

505. What Deemed an Advancement.

Whether a transfer to a child constitutes a gift, a loan
or an advancement is, in general, a question of intention,
with the proof of which, in detail, it is not our purpose to
deal. The intention to make an advancement may be
shown by parol evidence, direct or circumstantial, unless
the statutes, as in a few states, provide that the advance-
ment must be evidenced or charged in writing.’ In the ab-

1 Osgood »v. Breed, 17 Mass. 287; Beckwith v. Butler, 1 Wash. (Va.)
224; Sims ». Sims, 39 Ga. 108, 99 Am. D. 450; Davis ». Garrett, 91
Tenn. 147; West v. Jones, 85 Va. 616; Comer v. Shehee, 129 Ala. 588,
87 Am. St. R. 78; Ball v. First Nat. Bank, 80 Ky. 501.

2 Sprague v. Moore, 130 Mich. 92; Steele ». Frierson, 85 Tenn. 430;
Kyle ». Conrad, 25 W. Va. 760. See also Taylor v. Everett, 52 So.
(Fla., 1910) 980, and note thereto in 71 Cent. L. Jour. 157. It seems
that where the relative advanced acknowledges the advancement as
in full of his or her distributive share, this is conclusive, the doctrine
of hotchpot does not apply, and no inquiry as to the actual value of
the advancement can be made. Hilton v. Hilton, 103 Me. 92.

’ See Terry v. Dayton, 31 Barb. (N. Y.) 522; Dwight’s Pers. & Pers.
Prop. 641.

‘See Thornton’s Gifts & Advancements, sec. 537; Jaques v. Swasey,
153 Mass. 596, 12 L. R. A. 566, and note.

5 See statutes in Ill, Me., Vt., Mass., N. H., R. I., Mich., and Wis.
See also Pomeroy v. Pomeroy, 93 Wis. 262, and cases cited. Elliott v.
Western Coal Co., 243 Ill. 614; Law ». Smith, 2 R. I. 244,
ADVANCEMENTS TO CHILD 459

sence of direct evidence the question depends largely upon
the facts and circumstances of the particular case, includ-
ing the nature and value of the property given, the ap-
parent purpose of the gift, the means and station of
the parties, and the like.!’ Generally, sums advanced for
support or education merely,” or even for pleasure, luxury
or travel, are prima facie gifts absolute and not advance-
ments.’ But where a considerable sum, or property of
considerable value, is made over to the child at one time,
particularly if the apparent purpose was to establish the
child in some business or profession, or otherwise to launch
him in life or provide for his future, it is prima facie an
advancement.‘ Ordinarily where a purchase is made by
the parent or one in loco parentis, who pays the purchase
money, but the legal title is taken in the name of a child,
no trust will be deemed a result in favor of the parent,
but the child will be deemed, prima facie at least, to take
the property by way of advancement.*®

506. Advancements in Cases of Testacy.
While the doctrine of advancement is quite strictly
confined to cases of complete intestacy, it is sometimes a

1 See Thorton’s Gifts and Advancements, secs. 565 et seq. Evidence
of absolute gifts of similar amounts to other children admissible to
rebut presumption of advancement. Gunn v. Thurston, 130 Mo. 339.
See also Grumley v. Grumley, 63 N. J. Eq. 568.

2 Taylor v. Taylor, L. R. 20 Eq. 155; Bowles v. Winchester, 13 Bush.
(Ky.) 1; Miller’s Appeal, 40 Pa. 57, 80 Am. D. 555; Bissell v. Bissell,
120 Ia. 127; King v. King, 107 La. 437; Crain v. Mallone, 180 Ky. 125,
132 Am. St. R. 355, 22 L. R. A. (N. 8.) 1165.

3 Taylor v. Taylor, supra.

4 Taylor v. Taylor, supra; Boyd v. Boyd, L. R. 4 Eq. 305; Fellows
». Little, 46 N. H. 27; Storey’s Appeal, 83 Pa. 89; Eastman v. Powell,
51 Ark. 530; Burnett ». Mobile Branch Bank, 22 Ala. 642; Sherwood
v. Wooster, 11 Paige (N. Y.), 441.

5 Dyer v. Dyer, 2 Cox. 92, 2 Ld. Cas. in Eq. (4th Eng. Ed.) 165;
Todd v. Morehouse, L. R. 19 Eq. 69; Thompson v. Thompson, 18 Ohio
St. 73; Culp ». Price, 107 Ia. 188; Mut. Fire Ins. Co. ». Deale, 18 Md
26, 79 Am. D. 678; Roberts’ Appeal, 4 Norris (Pa.), 84; Tucker ».
Burrow, 2 H. & M. 515; Bisph. Eq. (8th Ed.), sec. 84.
460 ADVANCEMENTS TO CHILD

question whether a gift inter vivos from parent to child
is not an ademption or satisfaction of a legacy. The
law does not favor double portions,! and hence it is the
general rule that where a testator, standing in loco paren-
tis, makes a gift to his legatee of a certain considerable
amount, substantially identical in kind with a prior be-
quest, the court will, without direction in the testament,
presume, unless a contrary intention be shown, that such
gift was intended to be applied as part of the legacy, and
that the latter will be treated as adeemed pro tanto or
in toto, according as it is less than the gift or equals or
exceeds it.?, Sometimes there is a clause in the will pro-
viding that children advanced shall collate, or, in other
words, bring whatever has been advanced them into
hotchpot as a condition of sharing the testator’s estate.®
In such cases the testator may fix the valuation at which
advancements are to be taken, and such valuation is
usually held conclusive on the beneficiary.*

1 Watson v. Lincoln, 1 Ambl. 325; Wallace v. Del Bois, 65 Md. 153.

21 Am. & Eng. Ency. L. (2d Ed.), 613.

3See Breckenridge v. Breckenridge, 98 Va. 561; In re Moore, 61
N. J. Eq. 616; Appeal of Mengel, 116 Pa. 292.

‘Ballinger v. Connable, 100 Ia. 121. The testator may provide that
debts due from the beneficiary shall be treated as advancements.
Ritch ». Hauxhurst, 114 N. Y. 512; In re Eichelberger’s Est. 135 Pa.
160.
CHAPTER XLI

THE RELATION OF PARENT AND CHILD AS AFFECTING LIA-
BILITY FOR TORTS

507. Torts Between Parent and Child.

Upon grounds of public policy for the sake of family
peace and discipline, a parent is not liable civilly for
personal wrongs to his child committed during its infancy,
whether the action is brought during infancy or not.!
The remedy is such cases is through the criminal courts,
or through proceedings to deprive the brutal or criminal
parent of the custody and control of the infant. Upon
similar principles it is doubtful if the parent can sue the
child for personal torts, at least if they were committed
while the latter was within the age of nurture.”

As stated in another place, however, a parent as such
has no rights in the child’s general property, and doubt-
less if the parent should be guilty of conversion, or perhaps
of any serious act of trespass or waste with respect to it,
he would be liable to an action by the child through its
guardian, general or special.

A parent who is appointed guardian of his child’s estate
is of course liable, together with his bondsmen, for any
breach of duty in the latter capacity.

508. Liability of Parent for Torts of Child.

Generally, by the common law, the parent is not liable
for the torts of his minor child, even though it resides
with him and is under his authority or control, save under
such circumstances as would render it in a legal sense the

1 See ante, sec. 484, and cases cited.
* Schouler’s Dom. Rel. (5th Ed.), 275.
461
462 TORTS OF CHILD

agent or servant of the parent.! But in cases of excep-
tional negligence and indifference in failing to restrain
the tortuous acts of the child, the parent has been held
liable, though he neither authorized nor directed them,
and they had nothing to do with his business or employ-
ment.2. And a parent or even a stranger who intrusts
young children with such articles or agencies as firearms,
poisons, or dangerous machinery whereby third persons
receive injury, may be liable, not upon any theory derived
from the relation of parent and child or master and serv-
ant, but on the ground of negligence simply, which im-
plies want of ordinary care.?- Whether the defendant was
negligent, however, must depend upon all the circum-
stances of the case, including the nature of the instru-
ment or agency by which the damage was done, the age
and experience of the child, and the like. Intrusting
a child with such implements or even arms, as children
of its age and experience usually handle with safety, is
not, as a rule, deemed negligence on the part of the parent.®

509. Liability of Third Persons for Injuries to Child—
In General.

Where a minor child has been injured by the wrong or
negligence of a third party, two causes of action commonly,
though not invariably, arise:

1 Moon v. Tower, 8 C. B. N.S. 611, 98 E. C. L. 611; Winkler ». Fisher,
95 Wis. 355; Kumba ». Gilliam, 103 Wis. 312; Teargarten ». McLaugh-
lin, 86 Ind. 476, 44 Am. R. 332; Tifft v. Tifft, 4 Denio (N. Y.), 175;
Paul ». Hummel, 43 Mo. 119, 97 Am. D. 381.

2 Johnson v. Glidden, 11 8. Dak. 237, 74 Am. St. R. 795; Hoverson
v. Noker, 60 Wis. 511, 50 Am. R. 381, and note; Kumba ». Gilliam,
supra, and cases cited.

3 Dixon v. Bell, 5 M. & 8. 198; Carter v. Towne, 98 Mass. 567, 96
Am. D. 682; Phillips v. Barnett, 2 N. Y. City Ct. 20.

4 Harris v. Cameron, 81 Wis. 239, 29 Am. St. R. 891; Palm ». Iver-
son, 117 Ill. App. 535; Hagerty v. Powers, 66 Cal. 368, 56 Am. R. 101.

5 See Harris ». Cameron, supra, and cases cited; In Hagerty ». Powers,
supra, it was held that a father was not liable for intrusting a boy of
nine with a loaded pistol and harm was done by his careless use of it.
The soundness of this decision may be doubted.
TORTS OF CHILD 463

1. A right of action in favor of the parent technically
based, not upon the parental relation, but upon the loss
of service due to the injury, and upon the labor and ex-
pense incident to its care and cure.

2. A right of action in favor of the child based upon
the injury to it.

It may be generally affirmed, however, so far as con-
cerns negligent injuries, that whatever of contributory
fault on the part of the child would be sufficient to bar
an action by it will likewise bar the parent,! though like
fault on the part of the parent will not, in most jurisdic-
tions, bar the child, though it will bar the parent.?

The distinct and independent nature of these two
actions is well illustrated by the fact that the child, rather
than the parent, is entitled to damages for mental and
physical suffering due to the injury,’ that the parent’s
recovery for loss of services is limited ordinarily to the
period of infancy,‘ and that in estimating the child’s loss
for prospective diminution of earning capacity, the period
of its infancy cannot be taken into account unless it was
emancipated.®

510. Same—Rights of Parent—In General.

Under the technical theory of the common law the
parent does not recover for injuries to the child by virtue
of the parental relation merely, but per quod servitum
amisit, or upon the ground of loss of the child’s service
due to the injury inflicted upon it.* So strictly has this

1 Burke v. Broadway, etc., R. R. Co., 49 Barb. (N. Y.) 529, 34 How.
Pr. 239. As to the action for seduction, however, see post, sec. 526.

2 See post, sec. 606.

3 Durkee v. Cent. Pac. Ry. Co., 56 Cal. 388, 38 Am. R. 59; Wilton
v. Middlesex R. Co., 125 Mass. 130.

‘Hussey ». Ryan, 64 Md. 426, 54 Am. R. 772; Fort Worth, etc.,
Ry. Co. ». Robinson, 14 L. R. A. (Tex.) 781; Texas, etc., Ry. Co. ».
Morin, 66 Tex. 133.

5 Peppercorn v. Black River Falls, 89 Wis. 38, 46 Am. St. R. 818;
Texas, etc., Ry. Co. v. Morin, supra.

6 Balnyre v. Haley, 6 Mees, & W. 55; Grinnell v. Wells, 7 M. & G.
464 TORTS OF CHILD

theory been adhered to in England that where the child
is too young to render service no action will lie. Whether
it would lie in such a case even for the expenses of care
and cure made necessary by the injury seems uncertain
to say the least, and it has been held that no recovery for
care and cure can be had unless loss of service appears.”

While the loss of service is generally regarded in this
country, as in England, as constituting the gist of the
parent’s action,? there are many cases that hold that the
parent may recover for the expenses of nursing and heal-
ing a minor child though it was incapable of rendering
any service in fact. It would seem, therefore, that to
this extent the action is not strictly per quod servitum
amisit, but is based upon the parental relation itself,
and the parental duty of nurture and support.*

511. Same—Nature of Injury.

The wrongs to a child for which a parent may sue
are various. Thus the child may be beaten or otherwise
wilfully hurt, it may be negligently injured, or it may,
if a female, be seduced. So, a father has a right of action
against any person who knowingly entices or abducts a
child from him, or harbors it away from the parent,
though these latter wrongs may be deemed to affect
the parent rather than the child.®

1033, 49 E. C. L. 1033; Louisville, etc., R. R. Co. ». Goodykoontz,
119 Ind. 111, 12 Am. St. R. 371.

1 Hall v. Hollender, 4 B. & C. 660, 10 E. C. L. 436.

2 Grinnell v. Wells, supra, Compare Hall v. Hollender, supra.

3 Cooley on Torts (2d Ed.), 268, 271; Arnold v. Norton, 25 Conn.
92; Rogers v. Smith, 17 Ind. 323, 79 Am. D. 483.

4 Dennis v. Clark, 10 Cush. (Mass.) 347; Sawyer v. Sauer, 10 Kan.
518; Sykes »v. Lalor, 49 Cal. 236; Connell ». Putnam, 58 N. H. 534;
Finley v. R. R. Co., 59 Fed. 419; Clark v. Bayer, 32 Ohio St. 299, 30
Am. R. 593; Cuming v. R. R. Co., 109 N. Y. 95; Whitaker v. Warren,
60 N. H. 20, 49 Am. R. 302. Contra, Matthews ». Ry. Co., 26 Mo.
App. 75; Allen v. Atlanta St. Ry. Co., 54 Ga. 503.

° See post, sec. 529; Kirkpatrick ». Lockhart, 2 Brev. (S. Car.) 276;
Grand Rapids, etc., Ry. Co. ». Showers, 71 Ind, 451.
TORTS OF CHILD 465

612. Nature and Extent of Service.

Whenever loss of service is the gist of the action, our
own courts are quite liberal in their treatment of the
parent, deeming it sufficient that the injured child was
capable of rendering some substantial service however
slight; and if the child were so capable, service in fact need
not be shown, provided it lives with the parent, for servicc
in such cases will be presumed. Even where the child
was in the actual service of another at the time of the
injury, the parent may recover if he still retains the
right to reclaim its services at will.! If the injured child
has been wholly emancipated, and is not in the actual
service of the parent, however, no action by the latter
will lie.2 These principles are further discussed in con-
nection with the parent’s action for seduction.’

513. Who May Sue.

The father may always sue for injuries to his child
under the rule stated above. The mother’s right has
been denied, even where she has been abandoned or
widowed, on the ground that even in those cases she
had no legal right to the child’s service at common
law. By statute in most states, however, the widowed,
abandoned or non-supported mother is given a legal
right to the services of her minor children,* and may.
bring her action wherever this right is thus conferred.
In fact many cases in this country recognize her right
to service and consequent right to sue for personal in-
juries to the child and expenses of its care and cure,
even in the absence of legislation,’ and the same right

1Q’Mara v. Hudson R. R. Co., 38 N. Y. 445, 98 Am. D. 61; Hare
v. Dean, 90 Me. 308.

2 McCarthy »v. Boston, etc., R. R., 148 Mass. 550, 2 L. R. A. 608.

* See post, secs. 522 et seq.

4 See ante, sec. 470.

5 Furman ». Van Sise, 56 N. Y. 435, 15 Am. R. 441; Horgan »v. Pacific
Mills, 158 Mass. 402, 35 Am. St. R. 504; Hammond ». Corbett, 50
N. H. 501, 9 Am. R. 288.

30
466 TORTS OF CHILD

of action is held to exist in favor of a stepfather, or
other person who actually stands in loco parentis toward
the injured minor.

514. Same—Damages.

Ordinarily in an action by the parent for injury to a
child, damages may be recovered:

1. For the loss of service.

2. For the expense of care and cure.

Under the first head courts allow damages with much
liberality, not only for the loss of service during the
child’s actual illness or period of healing,? but for the
reasonably certain diminution of its future earning
capacity during infancy. Damages for mental pain and
suffering, however, and those of a punitory nature are
never allowed to the parent save in an action for seduc-
tion,’ or for abducting, enticing or harboring the child,
though they may, of course, be recovered by the child.

Where the parent recovers, all necessary and reason-
able expenses of medical attendance, nursing and care
during actual illness are always given, whether actually
paid or legally incurred, and it would seem that pro-
spective damages ander this head may also be recovered,
though they must be confined to the period of the child’s
minority.*

515. Same—-Where Child Killed.

Where a child dies in consequence of a tort, before
there is any loss of service or any expense incurred for
care or cure, no action lies at common law, either by the

1 Whitaker v. Warren, 60 N. H. 20, 26, 49 Am. R. 302, and authorities
cited in the opinion.

2 Evidence of the parent’s pecuniary condition, his ability to labor,
and the size of his family, however, are not admissible to enhance the
damages. Holdridge 7. Mendenhall, 108 Wis. 1, 81 Am. St. R. 871.

3 Cowden v. Wright, 24 Wend. (N. Y.) 429, 35 Am. D. 633.

‘See Fink ». St. Louis, 75 Mo. 542; Hopkins 2. Atlantic, etc., R. R.,
36 N. H. 9, 72 Am. D. 287. Compare Cuming ». Railway, 109 N. Y.
95.
SEDUCTION OF CHILD 467

parent or by the representatives of the child, upon prin-
ciples already stated.!_ Whether the parent, or an admin-
istrator for his benefit, may recover for the death of the
child, therefore, depends wholly upon statute. Not only
must the statute give a right of action, but it must con-
fer it upon the parent expressly or by necessary con-
struction.’

Where a right of action is given for the death of a child
the contributory negligence of the parent will constitute
a valid defence to the extent that the latter is a benefi-
ciary under the statute.*

516. Same—Measure of Damages.
The damages recoverable by a parent for the death
of a child under statutes are strictly pecuniary. The only
element to be considered is prospective loss of the child’s
services. Nothing further can be awarded,‘ save funeral

expenses, which are allowed in most states.®

517. Seduction of Female Child.

Seduction in a general legal sense signifies the act of
inducing a woman to yield unlawful sexual intercourse
by means of some positive art or influence that over-
comes her scruples or natural reluctance. Seduction in
many states is, under certain circumstances, a crime by
statute.

Civilly it has in many,though not in all, jurisdictions
a double aspect involving:

1. The right of the woman seduced to bring an action
for damages.

2. The like right of a parent, or one standing in loco
parentis toward, or claiming service from, the female
seduced.

1 As to husband and wife, see ante, sec. 153.

2 Oates v. Union Pac. Ry. Co., 104 Mo. 514, 24 Am. St. R. 348.

* Feldman v. Detroit United Ry. Co., 127 N. W. (Mich., 1910) 687.

‘See Rouse v. Detroit Elec. Ry., 128 Mich. 149; North Chicago St.
Ry. v. Brodie, 156 Ill. 317; Tex. & Pac. Ry. Co. v, Morin, 66 Tex. 133.

® Owen v. Brockschmidt, 54 Mo. 285.
468 SEDUCTION OF CHILD

518. Civil Action by Woman Seduced.

By the common law a woman debauched by her own
actual consent has no right of action. In such cases
the common law judges applied the maxims volenti non
fit injuria, and in parti delicto, ruthlessly against her.’
Some courts, however, while recognizing the inconclu-
sive force of these maxims, have debarred the woman on
grounds of general public policy, unless the injury was
inflicted by force. In many states, as we have seen, a
woman may show her own seduction in aggravation of
damages for breach of promise, though she cannot sue
for seduction as an independent wrong.”

519. Same—Exceptions to Common-law Rule.

But it has been held as an exception to the common-
law rule that where one substantially in loco parentis
toward an infant makes use of his influence and the
ward’s ignorance and inexperience to ruin her, or to aid
another in ruining her, he will be civilly liable to the
ward.? In these cases, however, mere proof of sexual
intercourse is not sufficient. Technical seduction must
be shown, which consists, as a rule, in some artifice or
deception whereby the natural reluctance of a chaste
woman might well be overborne.‘

Statutes in several states permit an action by a woman
for her own seduction. Such statutes, however, have
no extraterritorial force.’ The statutes differ consider-
ably in their terms and it is not our intention to
discuss then in detail. Some of them require that the
plaintiff shall have been under a specified age at the
time of seduction, and usually that she be of previous
chaste character, and unmarried, though her marriage

1 Ellington v. Ellington, 47 Miss. 329.

2 See ante, sec. 29.

‘Graham v. Wallace, 50 N. Y. App. Div. 101; Brittain ». Carmady,
96 Ind. 266.

4 Becker v. Mason, 93 Mich. 336.

5 Buckles v. Ellers, 72 Ind. 220, 37 Am. R. 156,
SEDUCTION OF CHILD 469

before suit is brought is held not to bar her right,’ unless
she marries her seducer.? Generally under these stat-
utes, as well as under statutes making seduction a crime,
technical seduction as distinguished from simple de-
bauchment must be shown.’

In a few states the seduction must have been accom-
plished under promise of marriage in order to give a right
of action to the woman, or constitute a criminal offense.

520. Same—Previous Chastity of Woman.

The very term seduction implies chastity in the woman.
But by most authorities a woman may be chaste who
is neither widow nor maid. It is enough that she is
leading a chaste and moral life at the time, though her
previous indiscretions may doubtless mitigate the dam-
ages.

521. Same—Former Recovery by Parent.

A recovery by the woman seduced does not bar an
action by her parent or guardian. And, on principle,
recovery by him should not bar her unless the statute
shows a fair intent to subordinate her cause of action
to his.®

522. Action by Parent.

Under the common law the parent did not recover
for seduction of his daughter as parent, but as a master
to whom service was due. And while the parent’s action

1 Dowling v. Crapo, 65 Ind. 209; Rabeke v. Baer, 115 Mich. 328, 69
Am. St. R. 567.

2 Hennegar v. Lomas, 145 Ind. 287, 32 L. R. A. 848. See also Bishop
». Redmond, 83 Ind. 157.

: Delvee v. Boardman, 20 Ia. 446; Rabeke v. Baer, supra; Breon 2.
Henkle, 14 Oreg. 494.

4 Franklin v. McCorkle, 16 Lea (Tenn), 609, 57 Am. R. 244; Baird
». Boehner, 72 Ia. 318; Smith v. Milburn, 17 Ia. 30; Love v. Masoner,
6 Baxt. (Tenn.) 24, 32 Am. R. 522. As to rule where parent is plain-
tiff, see post, sec. 526.

’Breon ». Henkle, supra; Franklin 7. McCorkle supra.
470 SEDUCTION OF CHILD

is still based, in most states, upon the theory of loss of
service, the value of such service is no longer the measure
of damages, and the plaintiff may recover for his shame
and mortification and the dishonor of his family. The
action is therefore anomalous, for the plaintiff sues as
master, but recovers as parent.! In a number of states
statutes have made the seduction and not the loss of
service the gist of the parent’s action,? and in a few
others the adoption of the code of reformed procedure
has been held to have the same effect.*

523. Same—What Constitutes Loss of Service.

The gist of the parent’s action at common law for
seduction of his daughter is loss of service. This theory
of the law is highly technical, and had its origin, doubt-
less, in iron rules of early procedure. While courts still
generally recognize service, or the right to it, as the basis
of the action, it has naturally become largely a mere tech-
nical requirement. It is therefore held that any loss of
service, however slight, will support the action, and that
where the daughter seduced was at the time a member of
the plaintiff’s household, actual loss of service and conse-
quent damage will be conclusively presumed.* Further-
more, it is generally held in this country that the parent
may sue even where the daughter lived away from home,

1 Terry v. Hutchinson, L. R. 3 Q. B. 602; South ». Dennison, 2 Watts
(Pa.), 474; Simpson v. Grayson, 54 Ark. 404, 26 Am. St. R. 52; Hud-
kins v. Haskins, 22 W. Va. 645. See notes to Bradshaw ». Jones, 76
Am. St. R. 659.

2See Cal. Code of Civ. Proc., sec. 375; Patterson »v. Hayden, 17
Oreg. 238, 11 Am. St. R. 822, 3 L. R. A. 529, and statutes and decisions
in Iowa, Ind., Ky., Tenn., Mich. and Va.

3 Anthony v. Norton, 60 Kan. 341, 72 Am. St. R. 360, 44 L. R. A.
757.

4 See ante, secs. 510 et seq.; post, sec. 527.

5 Maunder v. Venn, Moo. & M. 323; Simpson v. Grayson, 54 Ark.
404, 26 Am. St. R. 52; Briggs ». Evans, 5 Ired. L. (N. Car.) 16;
Cooley on Torts (2d Ed.), 231, and cases cited; Blagge ». Ilsley, 127
Mass. 199, 34 Am. R. 361,
SEDUCTION OF CHILD 471

and was actually in the service of another when the
seduction occurred, provided he had a legal right to
command her services at any time.!

If at the time of seduction, however, the daughter was
away from home in the actual service of another, and
the parent had no present right to reclaim her services,
either because she was of age or was otherwise emanci-
pated, no action by him will lie against her seducer. This
rule presents the most serious obstacle to substantial
justice that is due to the technical service theory of the
common law.? As an exception to it, however, a de-
fendant who procures a woman to leave the service of
her parent and enter into his own service with intent to
seduce her, is liable to the latter upon the case for fraud.’
And it has been held that if a minor daughter is seduced
abroad, even while in the service of a stranger, and
returns in her shame to the home of her parent, there
may be such a loss of service on his part as will support
an action.‘

624. Same—Where Daughter of Age.
Where the daughter seduced is over age, the parent
may still sue for her seduction if she resides with him

1 Simpson v. Grayson, 54 Ark. 404, 26 Am. St. R. 52; Greenwood »v.
Greenwood, 28 Md. 370; Martin v. Payne, 9 Johns. (N. Y.) 387, 6 Am.
D. 288; Mulvehall v. Millward, 11 N. Y. 343; Lavery v. Cooke, 52
Wis. 612, 38 Am. R. 768; Boyd v. Byrd, 8 Blackf. (Ind.) 113, 44 Am.
D. 740; White ». Murtland, 71 Ill. 250, 22 Am. R. 100. For the Eng-
lish rule, see Terry ». Hutchinson, L. R. 3 Q. B. 599; Furman ». Van
Sise, 56 N. Y. 435, 15 Am. R. 441.

2 Grinnell v. Wells, 7 Man. & Gr. 1033, 49 E. C. L. 1033; Ellington v.
Ellington, 47 Miss. 329; Mulvehall ». Millward, supra; Dain 2. Wyckoff,
7N. Y. 191. See post, next section.

3 Dain v. Wyckoff, 18 N. Y. 45, 72 Am. D. 493; Ball ». Bruce, 21
Til. 161.

4 Mulvehall ». Millward, supra; Parker v. Meek, 3 Sneed (Tenn.), 29;
Ellington v. Ellington, 47 Miss. 329; Coon v. Moffett, 3 N. L. J. 583,
4 Am. D. 392. Compare South v. Dennison, 2 Watts (Pa.), 474; Dean

v. Peel, 5 East, 45.
472 SEDUCTION OF CHILD

and renders service.! It is otherwise, however, where she
has left her father’s home and is actually in the service
of another when the injury takes place.? But though
she resides with or is in the employ of another, the parent
may sue, if the relation of master and servant still sub-
sists, as where the daughter, though of age, is non compos
mentis and hence has never been emancipated,*® or the
father, for any other reason, has a right to the benefit
of her services or may reclaim them at will.t| And where
at the time of the seduction the adult daughter was
living with the parent, it seems that service will be
presumed.§

525. Who May Sue.

The right of action of the woman seduced has already
been considered. The right of the father to sue, sub-
ject to rules previously stated, is unquestioned. But
the mother, if the father be dead, or probably if she be
divorced, has a right of action, so long as she has a right
to the custody and services of the child.’ A stepfather

1 Applegate v. Ruble, 2 A. K. Marsh (Ky.), 563; Badgeley v. Decker,
44 Barb. (N. Y.) 577; Moran v. Dawes, 4 Cow. (N. Y.) 412; Leipe ».
Eisenlerd, 32 N. Y. 229; Beaudette ». Gagne, 87 Me. 534; Lamb ».
Taylor, 67 Md. 85.

2 Postelthwait v. Parks, 3 Burr, 1878; Mercer v. Walmsley, 5 Har.
& J. (Md.) 27, 9 Am. D. 486; Beaudette ». Gagne, supra.

* Hahn ». Cooper, 84 Wis. 633; Brown v. Ramsay, 29 N. J. L. 117,
120.

‘Hartman ». McCrary, 59 Mo. App. 571, 574; Sutton ». Huffman,
3 Vroom (N. J.), 58; McDaniel 7. Edwards, 7 Ired. L. (N. Car.) 408,
47 Am. D. 381.

5 Leipe v. Eisenlerd, 32 N. Y. 229; Briggs v. Evans, 5 Ired. L. (N. Car.)
16, 20; Wilhoit ». Hancock, 5 Bush. (Ky.) 567; Brown v. Ramsey, 29
N. J. L. 117.

6 See ante, sec. 518.

7 Davidson ». Abbott, 52 Vt. 570, 36 Am. R. 767; Hogan ». Pacific
Mills, 158 Mass. 402, 35 Am. St. R. 504; Furman ». Van Sise, 56 N. Y.
435, 15 Am. R. 441; Abrahams ». Kidney, 104 Mass. 222, 6 Am. R.
220. It has even been held that the widowed mother may sue though
the father was living when the seduction was accomplished. Coon 2.
SEDUCTION OF CHILD 473

may sue if the child is received and supported by him
as a member of his family,! but it is otherwise where
she is in the actual service of another, for, unlike a nat-
ural parent, he has no right to reclaim her services.”
Furthermore it seems that any other person standing
in loco parentis toward a female infant and receiving
service at her hands can maintain an action for her
seduction, though in such cases service in fact must
doubtless be shown.?

526. The Defenses.

That the woman consented to sexual intercourse
without the use of arts or wiles is usually no defense to
the action by the parent which proceeds upon her de-
bauchment and the consequent injury to the parent.‘
In this respect the action by the parent differs from
an action by the woman herself,* though the ready com-
pliance of the daughter may well be held to mitigate
the severity of the injury to the parent.® If the parent
actually consented to his daughter’s defilement, how-
ever, his action is wholly barred pursuant to the maxim,
volenti non fit injuria.?’ This was held where the father
Moffett, 3 N. J. L. 583, 4 Am. D. 392. Contra, Vossel v. Cole, 10 Mo.
634, 47 Am. D. 186. See also South v. Dennison, 2 Watts (Pa.), 474.

1 Kinney v. Laughenour, 89 N. Car. 365.

2 Bartley v. Richtmyer, 4 N. Y. 38, 53 Am. D. 338, reversing 2 Barb.
182.

§ Ingersoll v. Jones, 5 Barb. (N. Y.) 661; Bartley v. Richtmyer, supra.

4Stoudt ». Shepherd, 73 Mich. 588; Leucker v. Steileu, 89 Ill. 545,
31 Am. R. 104; Reed v. Williams, 5 Sneed (Tenn.), 580, 73 Am. D. 157.
See, however, Hill ». Wilson, 8 Blackf. (Ind.) 128, and other cases
cited in note to Weaver v. Bachert, 44 Am. D. 159; Patterson ». Hay-
den, 17 Oreg. 238, 11 Am. St. R. 822, 3 L. R. A. 529.

5 See ante, sec. 520.

6 Simpson v. Grayson, 54 Ark. 404, 26 Am. St. R. 52; Hogan v. Cregan,
6 Robt. (N. Y.) 138; White 2. Murtland, 71 Ill. 250, 22 Am. R. 100.

7 Travis v. Barger, 24 Barb. (N. Y.) 614. Consent obtained by fraud
is no defense, as where the defendant falsely represented himself sin-
gle and thus obtained the parent’s consent to his marriage with the
daughter. Lawyer ». Fritcher, 130 N. Y. 239, 27 Am. St. R. 521, 14
L. R. A. 700. See also Dain ». Wyckoff, 18 N. Y. 45, 72 Am. D. 493.

tae
474 SEDUCTION OF CHILD

knowingly permitted his daughter to receive the ad-
dresses of a married man,’ and so where he permitted
her to sleep with her suitor for one night, even though
such a proceeding was sanctioned by local custom.’
It is no defense to the parent’s action, however, that
the daughter’s debauchment was due to violence rather
than to arts or persuasion.’ The parent may of course
compromise and release his claim against the. seducer
of his daughter, but her release without his consent is a
nullity as to him. ,

527. Damages—lIn General.

Where the parent sues for the seduction of a daughter,
the damages were originally confined to the loss of serv-
ice which was the foundation of the action. But for a
long time back the damages awarded him have by no
means been limited to the value of the service lost, but
are awarded upon the just basis of the parental relation,®
and include not only the value of the service lost, but
the expense to which the parent is put by pregnancy
and confinement, or other illness of the daughter directly
due to the seduction, and compensation for his own men-
tal suffering and anxiety due to the daughter’s downfall,
its corrupting influence upon his other children, and the
disgrace and dishonor of his family.6 It is said that the

1 Reddie v. Scoolt, Peake N. P. 240. See also Richardson ». Foults,
11 Ind. 466.

2Seagar v. Slingerland, 2 Cai. (N. Y.) 219; Hollis ». Wells, 3 Pa.
L. J. Rep. 169, Pa. L. J. 30. ,

* Kennedy v. Shea, 110 Mass. 147, 14 Am. R. 584; Lavery v. Crooke,
52 Wis. 612, 38 Am. R. 768.

4 Gimbel v. Smidth, 7 Ind. 627.

5 Terry v. Hutchinson, L. R. 3 Q. B. 599; Clem v. Holmes, 33 Gratt.
(Va.) 722, 36 Am. R. 793; Anthony v. Norton, 60 Kan. 341, 72 Am. St.
R. 360, 44 L. R. A. 757; note to Bradshaw »v. Jones, 103 Tenn. 331, 76
Am. St. R. 659.

6 See ante, sec. 522, and cases cited; Leucker v. Stetleu, 89 Ill. 545,
31 Am. R. 104; Simpson ». Grayson, 54 Ark. 404, 26 Am. St. R. 52.
Compare Comer v. Taylor, 82 Mo. 341.
SEDUCTION OF CHILD 475

illness of the daughter, and the consequent loss of serv-
ice must be due to the seduction and not to some sub-
sequent intervening cause. Under this rule illness due
to grief at her abandonment by the seducer, shame re-
sulting from exposure, or fear due to threats of exposure,
or other similar causes, has been held too remote a con-
sequence of the criminal act, and the action cannot be
maintained.'! It is clearly otherwise as to illness that is
the direct result of her feelings of shame, humiliation and
disgrace due to the loss of her virtue, for such illness,
in the absence of venereal disease or pregnancy, is com-
monly the cause of the loss of service which is the basis
or gist of the action.’

Though the daughter’s previous unchastity is no de-
fense to an action by the parent for her debauchment,
the defendant is nevertheless entitled to show it in miti-
gation of damages, and may give evidence, not only of her
general reputation in this respect, but of specific acts of
intercourse with other men and her impure conversations
and familiar associations with them.? Evidence of her
character or conduct subsequent to the seduction, how-

1 Boyle v. Brandon, 13 M. & W. 738; Abrahams v. Kidney, 104
Mass. 222, 6 Am. R. 220; Knight v. Wilcor, 14 N. Y. 413. In this last
case the fear of exposure due to parental threats to sue the seducer
was the cause of the daughter’s illness.

These cases would seem to exhibit again the anomalous results that
flow from the common-law theory of the action, for it would seem to
follow that where neither pregnancy, venereal disease or other distinct
physical ailment ensued upon the seduction, and the daughter was so
callous or even imbecile as not to have suffered in mind sufficiently to
impair her bodily health or capacity to labor, the parent would-be with-
out remedy for his own mortification and disgrace at the dishonor of
his family and the corrupting example to his other children.

2 Abrahams v. Kidney, supra; Russel ». Chambers, 31 Minn. 54;
White v. Nellis, 31 Barb. (N. Y.) 279, 88 Am. D. 282; Van Horn ».
Freeman, 1 Halst. (N. J.) 322.

3 Love v. Masoner, 6 Baxt. (Tenn.) 24, 32 Am. R. 522; West ». Duff,
55 Ia. 335; Stewart v. Smith, 92 Wis. 76; White v. Murtland, 71 Ill.
250, 22 Am. R. 100; Reed »v. Williams, 37 Tenn. 580, 73 Am. D. 157,
See also the elaborate note in 14 L. R. A. (N. 8.) 750.
‘476 SEDUCTION OF CHILD

ever, is inadmissible,’ and the same has been held of the
character of other members of the family,’ or even the
plaintiff parent. That the defendant after suit brought
offered to marry the woman seduced is not admissible
in mitigation,‘ though his prior marriage to her may
be shown.°®

Various other facts may be shown as bearing upon the
question of damages, as the wealth and social stand-
ing of the defendant and the poverty of the plaintiff.®

Courts are particularly reluctant to set aside verdicts
in seduction cases upon the mere ground that they are
excessive, and only do so where they are plainly the
result of passion, partiality, prejudice or corruption.’

528. Same—Exemplary Damages.

In all jurisdictions where exemplary or punitory dam-
ages are recoverable, they are deemed peculiarly appro-
priate in actions of seduction, and may always be awarded
in the discretion of the jury,’ unless the circumstances
are such as to substract from the technical wrong the
elements of disgrace, perfidy and fraud that are its
usual concomitants and which are the very basis of this

1 White ». Murtland, supra; Showalter ». Bergman, 123 Ind. 155.

2 Thompson »v. Clendening, 1 Head (Tenn.), 287; Lewis v. State, 89
Ga. 396.

3 Dain v. Wyckoff, 18 N. Y. 45, 72 Am. D. 493. The character of
the parent at the time of the seduction, however, is always in issue
on the subject of damages. See and compare Robinson »v. Burton, 5
Harr. (Del.) 335; Reed ». Williams, 5 Sneed (Tenn.), 580, 73 Am. D.
157.

4 White ». Murtland, 71 Ill. 250, 22 Am. R. 100.

5 Hichar v. Kistler, 14 Pa. 282, 53 Am. D. 551.

6 Clem v. Holmes, 33 Gratt. (Va.) 722, 36 Am. R. 793; Lavery v.
Crooke, 52 Wis. 612, 38 Am. R. 768; White ». Murtland, 71 Ill. 250, 22
Am. R. 100; Parker ». Monteith, 7 Oregon, 277.

7 Bennett v. Beam, 42 Mich. 346, 36 Am. R. 442, and note; Steven-
son v. Belknap, 6 Ia. 97, 71 Am. D. 392.

§ Knight v. Wilcox, 18 Barb. (N. Y.) 212; Bartley ». Richtmyer, 4
N. Y. 38, 53 Am. D. 338; Lavery v. Crooke, 52 Wis. 612, 38 Am. R.
768; Stevenson v. Belknap, supra.
ABDUCTING, ENTICING OR HARBORING CHILD 477

sort of damages in other actions of tort.! Thus, exem-
plary damages should not be awarded where the daughter
was willingly debauched,’ or where the parent was guilty
of positive negligence, though it did not amount to con-
sent.? But the fact that she was ruined by force makes
for, rather than against, the right to punitory damages,
and if the circumstances are such that the action can be
maintained at all, they are not restricted by the fact
that the daughter is over age.®

529. Abducting, Enticing or Harboring Child.

One who abducts, entices or harbors a minor child
away from its parent, whereby the latter is deprived of
its services, is liable in damages to the parent, and may
be criminally responsible under statutes in the various
states, if not at common law. Criminal prosecutions are
particularly sanctioned where the abduction, entice-
ment or harboring is of a female child for immoral pur-
poses.° It seems, however, that to constitute the civil '
wrong of enticing, abducting or harboring, the defend-
ant’s conduct should constitute a conscious and inten-
tional interference with parental rights.’ Thus, one is
not liable as for an enticement or harboring who employs
a child believing it to be over age or otherwise eman-
cipated.2 But one who continues an infant in his employ
after knowledge of parental dissent, thus aiding and

1 See cases supra and Molensky v. Hartmeister, 68 Mo. App. 318.

2 Comer v. Taylor, 82 Mo. 341, 346.

?Stoudt ». Shepherd, 73 Mich. 588; Richardson v. Fouts, 11 Ind.
466.
“Molensky ». Hartmeister, supra.

* Leipe v. Hisenlerd, 32 N. Y. 229.

6 See 38 Cent. L. Jour. 184.

7 Kenney »v. Baltimore & Ohio Ry. Co., 101 Md. 490, 1 L. R. A.
(N. 8S.) 205, and note; Schouler’s Dom. Rel. (5th Ed.), sec. 260.

8 Butterfield v. Ashley, 6 Cush. (Mass.) 249; Kenney v. Baltimore &
Ohio Ry., supra; Gulf, etc., R. Co. v. Redecker, 67 Tex. 190, 60 Am.
R. 20; Stuart v. Simpson, 1 Wend. (N. Y.), 376.
478 ABDUCTING, ENTICING OR HARBORING CHILD

encouraging him to remain away from the parent, is
guilty of harboring.?

If the parent has abandoned the child, or by neglect
or abuse has thrown it upon its own resources, those
who relieve its necessities by giving it shelter or employ-
ment are in no wise liable for so doing.? Taking or entic-
ing an infant of marriageable age for the purpose of mar-
riage, is not an actionable wrong by the common law of
this country, provided a valid marriage with such infant
is entered into, for the law and public policy as to mar-
riage override parental rights.’

While service or the right to service is usually regarded
as the gist of the action for abducting, enticing or harbor-
ing a child,* the parent is not restricted in his recovery
to the value of the child’s service simply as servant,
but may recover for the loss of its companionship and
the comfort of its society, and for the anxiety and mental
suffering due to the wrong. In fact the parent, as in
cases of seduction, sues as master but recovers as parent.®
The expenses reasonably incurred in recovering the child
are a proper element of recovery.®

1 Butterfield ». Ashley, supra; Everett v. Serfey, 1 Ia. 356.

2 Woodell v. Coggeshall, 2 Met. (Mass.) 89, 35 Am. D. 391; Sargent
v. Matthewson, 38 N. H. 54.

3 See post, sec. 742; Cooley on Torts (2d Ed.), 270, and cases cited;
Aldrich v. Bennett, 63 N. H. 415, 56 Am. R. 529. If damages can be
recovered at all in such a case they must be restricted to such as accrue
intervening the enticement and the marriage. Jones v. Tevis, 4 Litt.
(Ky.) 25, 14 Am. D. 98.

4 See Soper v. Igo, 121 Ky. 550, 123 Am. St. R. 212, 1 L. R. A. (N.S.)
362, and note. :

5 Washburn v. Abraham, 28 Ky. Law, 985, 122 Ky. 54, 57; Stowe ».
Haywood, 7 Allen (Mass.), 118; Magee v. Holland, 27 N. J. L. 86, 72
Am. D. 341; Soper v. Igo, supra.

6 Rice v. Nickerson, 9 Allen (Mass.), 478, 84 Am. D. 777.
CHAPTER XLII

TEACHER AND PUPIL

530. In General.

The duty of the parent to educate the child has been
already considered, including the compulsory nature of
modern statutes.1_ It only remains to consider the per-
sonal relations of teacher and pupil, with incidental ref-
erence to the conflicts that sometimes arise between
school and parental authority.

The term “‘teacher” will ordinarily include the prin-
cipal of a public school or the principal, managers, or
proprietors of a private one. It may be stated generally
at the outset that the teacher stands toward his pupil,
to a certain extent, in loco parentis, and may ‘be regarded
as having delegated to him analogous powers of discipline,
restraint and correction, so far as these may be necessary
to the proper discharge of his duties, unless restrained
by law or by some regulation of the superior school
authorities having the force of law.?

531. Who May Become Pupils—Right of Admission
to Public Schools.

Private schools may, of course, choose their pupils,
and their proprietors are not liable to any action for re-
fusal to receive and instruct unless they have contracted
in advance to do so, when the remedy would doubtless
be confined to an action for damages for breach of con-

tract.’
Under the statutes of the several states, residents

1 See ante, sec. 497.
2 See post, secs. 534 et seq.
* State v. Maryland Institute, 87 Md. 643.
479
480 TEACHER AND PUPIL

of a prescribed age are entitled to attend the public
or common schools subject to conditions prescribed by
law. When a child comes within the qualifications of
the statute he is entitled to admission to such schools,
and his exclusion without legal cause is ground for a
common-law action for damages, at least if his exclusion
is malicious,! and mandamus will lie either by the pupil
or his parents against the public school authorities to
compel his admission, or his readmission if he is wrong-
fully excluded or expelled.?

The right of colored children to attend the same
schools with whites has been before the courts. Their
absolute exclusion from the common schools would be
denial of the equal protection of the laws; but where
separate schools are established for them, a state law con-
fining their attendance to such schools, provided the same
advantages are afforded the children of both races, has
been held not in conflict with the fourteenth amendment
to the federal constitution,’ and it is immaterial that the
colored child is required to go further to reach the school
set apart for his race, if it is reasonably accessible.‘
When statutes, as in several states, prohibit the exclusion
of any child from a public school on account of race or
color, it is held that no power exists in the school au-
thorities to establish separate schools for colored children.*

1The cause of action in such cases is in the child and not the
parent, for the latter is not deemed injured by any diminution or
loss of service. Donahoe v. Richards, 38 Me. 379, 61 Am D. 256.

2 State ex rel. Bowe v. Board, 63 Wis. 234; 53 Am. R. 282; Cartright
v. Board, 73 Kan. 32; People v. Board, 18 Mich. 400; Perkins ». Board,
56 Ia. 476.

3 People v. School Board, 161 N. Y. 598, 48 L. R. A. 113; Richardson
v. Board of Education, 72 Kan. 629; Reynolds v. Board of Education,
66 Kan. 672; Cumming »v. Board of Education, 175 U.S. 528; Ward v.
Flood, 48 Cal. 36, 17 Am. R. 405.

‘State » McCann, 21 Ohio St. 198; Cory v. Carter, 48 Ind. 327, 17
Am. R. 738; People v. Gallagher, 93 N. Y. 451, 45 Am. R. 232.

’ People v. Board of Education, 18 Mich. 400; People v. Board of
Education, 101 Tl. 308, 40 Am. R. 196.
TEACHER AND PUPIL 481

Indeed it has been held by most courts that school boards
have no power in any case to establish separate colored
schools unless expressly authorized by the legislature.!

632. Vaccination of Pupils.

Question has also arisen as to the constitutionality
of laws requiring vaccination of pupils as a condition of
their attendance in the public schools. Such statutes
have generally been upheld.”

In the absence of statute, however, neither school
boards nor boards of health authorized to exercise general
supervision over the public health can make vaccination a
condition precedent to attendance upon the public schools,
at least in the absence of an epidemic in the community,
reasonably feared or actually existing.’

533. Course of Study—Religious Exercises and In-
struction.

The legislature has power to prescribe courses of study,
and to make them obligatory upon those attending the
state or public schools, and may delegate such power to
local boards or committees.‘

While it is practically agreed that the public schools

_ 1Clark ». Board of Directors, 24 Ia. 266; Board of Directors ».
Tinnon, 26 Kan. 1; Cory v. Carter, 48 Ind. 327, 17 Am. R. 738.

2 Bissell ». Davison, 65 Conn. 183, 29 L. R. A. 251; Matter of
Walters, 84 Hun. (N. Y.) 457; Abeel v. Clark, 84 Cal. 226. See
Freund’s Police Power, sec. 447.

3 State v. Burdge, 95 Wis. 390, 60 Am. St. R. 123, 37 L. R. A. 157;
Potts v. Breen, 167 Ill. 67, 39 L. R. A. 152, 59 Am. St. R. 262; Jenkins
». Board of Education, 234 Ill. 422,17 L. R. A. (N. 8.) 709, and note;
Blue v. Beach, 155 Ind. 121, 80 Am. St. R. 195, and note, 50 L. R. A.
64; Duffield v. Williamsport School Dist., 162 Pa. 476, 25 L. R. A.
152 and note. See also, State ». Board of Education, 21 Utah, 401;
State v. Zimmerman, 86 Minn. 353, 91 Am. St. R. 351, 58 L. R. A. 78.

4 State ». Webber, 108 Ind. 31, 58 Am. R. 30. As to the power of
the legislature or state or local boards to adopt text-books of a uni-
form series and make their use obligatory, Campana y, Scalderhead,
17 Mont. 548, 36 L. R. A. 277.

31
482 TEACHER AND PUPIL

cannot be a medium for religious or doctrinal instruction
per se under the constitutional provision of the several
states, the courts do not altogether agree as to what
constitutes such instruction. It has been held that the
mere reading of the Protestant version of the Bible
is not forbidden, though practised regularly as a class
exercise, and pupils regardless of creed were required to
participate. So it has been held that a rule requiring
Bible reading and prayer, and requiring pupils to bow
the head in prayer, unless requested to be excused by
parents, was not unconstitutional, nor was it unreason-
able; ? and a statute has been upheld that declared that
“the Bible shall not be excluded from any school or
institution in the State, nor shall any pupil be required
to read it contrary to the wishes of his parent or guard-
ian.” * In several states, on the other hand, the stated
reading of a particular version of the Bible as a school
exercise, even though attendance at such exercise was
optional with the pupil, has been held sectarian instruc-
tion, and in violation of constitutional provisions for-
bidding such instruction and of other provisions designed
for the secularization of the public schools. It has
likewise been held that the employment of teachers in
the distinctive garb of a given religion or order was
forbidden as tending to inculcate sectarian ideas.®

1 Donahoe v. Richards, 38 Me. 379, 61 Am. D. 256.

2 Spiller ». Woburn, 12 Allen (Mass.), 127; Hackett ». Brooksville
Graded School Dist., 120 Ky. 608, 117 Am. St. R. 599, 69 L. R. A. 592.

3 Moore v. Monroe, 64 Ia. 367, 52 Am. R. 444.

4 State ex rel. Weiss v. Dist. School Board, 76 Wis. 177, 20 Am. St. R.
41, 7 L. R. A. 330; Board of Education v. Minor, 23 Ohio St. 211.
See also State v. Sheve, 65 Neb. 853, 59 L. R. A. 927; People v. Board
of Education, 92 N. E. 251 (Ill., 1910). Contra, Pfeiffer », Board, 118
Mich. 560, 42 L. R. A. 536; Hackett ». Brooksville Graded School Dist.,
supra, reviewing many cases; Church v. Bullock (Tex. Civ. App., 1907),
16 L. R. A. (N. 8.) 860.

6O’Connor v. Hendrick, 184 N. Y. 421, 7 L. R. A. (N. 8S.) 402.
Contra, Hysong v. School Dist., 164 Pa. 629, 44 Am. St. R. 632,
26 L. R. A. 203,
TEACHER AND PUPIL 483

534. Teacher’s Right of Control and Discipline.

The teacher stands toward the pupil, at least in some
respects, in loco parentis, and has similar powers of con-
trol and discipline. In fact he is said to have delegated
to him such powers of the parent as are necessary to
the fulfillment of the purposes of his office. While it may
be doubted whether a teacher in the public schools, par-
ticularly where compulsory education laws exist, is the
mere agent of the parent in any proper sense, his powers in
this respect are certainly analogous to those of the parent
and are subject to similar limitations. Thus, in the ab-
sence of statute or rule of the superior school authorities
forbidding, the teacher has a right to inflict corporal pun-
ishment upon the pupil,! being liable criminally, like the
parent, for malice, wantonness or excess. Unlike the
parent, however, he is civilly liable for assault if he tran-
scends the limits of lawful punishment.? But what con-
stitutes lawful punishment? As in the case of the parent,
it must not be malicious,’ and whether it is so or not, is
ordinarily for the jury, due regard being had to all the facts
and circumstances of the case.* In the second place it
must not be excessive. As to what constitutes excessive
punishment, however, the courts are not entirely agreed.
Here, as in the case of a parent, liability seldom follows
upon honest errors of judgment. If any general rule can
‘be formulated upon this subject it would seem to be
that any punishment, though inflicted in good faith,
will be deemed excessive if it is manifestly so in the
judgment of reasonable men in the light of all the facts
and circumstances of the particular case, including the
age, sex and manifest endurance of the pupil and the

1 Cooley on Torts (2d Ed.),. 198.

2 Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156; Patterson v. Nutter,
78 Me. 509, 57 Am. R. 818; Cooper v. McJunken, 4 Ind. 290.

2State v Pendergrass, 19 N. Car. 365, 31 Am. D. 416; ante, sec.
485.

4Vanvactor v. State, 113 Ind. 276, 3 Am. St. R. 645; Boyd ». State,
88 Ala, 169, 16 Am. St. R. 31.
484 TEACHER AND PUPIL

nature of the offense committed.! All reasonable doubts,
however, should be solved in favor of the teacher.”

535. Suspension and Expulsion.

While the power to suspend or expel a pupil for just
cause inheres in school boards or other superior school
authorities, in the absence of statute forbidding its
exercise,’ the power of suspension as distinguished from
permanent expulsion, may be exercised by the teacher,
unless the statute or some other rule of high authority
forbids, subject to the duty to report such expulsion,
together with its reasons, to the board.‘ In fact it has
been held that where a teacher has expelled a pupil for
good cause, he is justified in leaving, where the board,
regardless of the effect of its action upon the discipline
of the school, insists upon reinstating such pupil.®

536. Grounds of Expulsion or Suspension.

It is not necessary that the pupil expelled should
have violated any express rule of the school, or of the
school authorities, or of statute. It is enough that his
conduct is such that his presence in the school is fairly
subversive of its good order and discipline.®

537. Conduct out of School, or Sanctioned by Parent.
The power of the teacher to chastise or expel a pupil
for misconduct out of school seems well established,
subject to the limitation that the misconduct must be
of such character as to directly and immediately affect
the good order and discipline of the school itself, or the

'Vanvactor v. State, supra. See and compare ante, sec. 485 and
cases cited.

2 Lander v. Seaver, 32 Vt. 114, 76 Am. D. 156.

+Spear v. Cumings, 23 Pick. (Mass.) 226, 34 Am. D. 53; Ferritcr
v. Taylor, 48 Vt. 444, 21 Am. R. 138.

‘State v. Burton, 45 Wis. 150; Sewall ». Defiance Union School
Board, 29 Ohio St. 89; Vermillion ». State, 78 Neb. 107.

6 Scott v. School Dist., 46 Vt. 452.

* State ex rel. Burpee v. Burton, 45 Wis. 150, 30 Am. R. 706.
THACHER AND PUPIL 485

morals of others in attendance, or constitutes a viola-
tion of some reasonable regulation of the school author-
ities.| Where the conduct for which punishment is
inflicted was sanctioned by the parent, more difficulty
arises. Doubtless in such cases the punishment should
be confined to suspension or expulsion; ? nor would the
power to expel or otherwise punish exist in such cases
unless the conduct authorized by the parent was in it-
self unlawful, or immoral, or subversive of school discipline,
or in violation of some lawful and reasonable regulation
of the school authorities.’

1 State v. Dist. Board, 135 Wis. 619, 128 Am. St. R. 1050, 16 L. R. A.
(N. 8.) 730; Hutton v. State, 23 Tex. App. 386, 59 Am. R. 776; Deskins
v. Gose, 85 Mo. 485, 55 Am. R. 387; Jones v. Cody, 182 Mich. 18, 62
L. R. A. 160. Compare Murphy ». Board of Directors, 30 Ia. 429.

2 Morrow v. Wood, 35 Wis. 59, 17 Am. R. 471; State v. Mizner, 50
Ta. 145, 32 Am. R. 128. As to expulsion of child for misconduct of
parent, see Board of Education v. Purse, 101 Ga. 422, 65 Am. St. R.
312, 41 L. R. A. 593.

3 State ». Webber, 108 Ind. 31, 58 Am. R. 30. See Dritt », Snod-
grass, 66 Mo. 286, 27 Am. R. 348, holding a pupil not liable to pun-
ishment who attended a social party by permission of its parents, in
the face of a rule of the school authorities, on the ground that such a
rule was an invasion of the right of the parent and hence unreasonable
and void.

As to the right of public school authorities to forbid or visit with
penalties short of exclusion, membership in, or affiliation of pupils
with, secret societies, see Wyland v. Board, 43 Wash. 441, 7 L. R. A.
(N. 8.) 352, distinguishing Stallard v. White, 82 Ind. 278, 42 Am. R.
496.
CHAPTER XLIIT
INFANCY IN GENERAL—CONTRACTS OF INFANTS

588. Definitions—Infancy in General.

By the common law all persons under twenty-one
years of age are termed infants or minors, and their
condition or status is termed infancy.

In some states, by statute, women are of age at eight-
een, and in several a married woman of whatever age
has all the rights and powers of married women of full
age. In at least three states all minors, male or female,
attain their majority at marriage.”

At common law a person comes of age on the first
moment of the day preceding his twenty-first birthday,
upon the ground that the law does not ordinarily notice
fractions of a day.* By statute in a few states, however,
an infant becomes of age on the first moment of his
twenty-first birthday proper, and under statutes in a few
others he may obtain a decree of court declaring him
of full age for purposes of property and contract,‘ and
there are doubtless statutes in other states conferring
certain powers and capacities upon infants enjoyed only
by adults at common law.

539. Of the Status of Infancy in General.
The status of infancy involves various stages of civil

1 2 Bouvier’s Law Dict. (Rawle’s Ed.) 1209; 2 Pol. & Mait. (2d Ed.)
438.

2 Stimp. Am. Stat. Law, sec. 6601. As to testamentary capacity see
post, sec. 609.

3 Anon., 1 Salk. 44; Matter of Richardson, 2 Story (U. S.), 571, 577;
Ross v. Morrow, 85 Tex. 172, 16 L. R. A. 542; State ». Clark, 3 Harr.
(Del.) 557.

“Cox v. Johnson, 80 Ala. 22; Doles v. Hilton, 48 Ark. 305; Emanci-
pation of Pochelu, 41 Ia. 331; Brown v. Wheelock, 75 Tex. 385; S. Dak.
Civ. Code, sec. 3408; Cal. Civ. Code (1901), sec. 26.

486
INFANCY IN GENERAL 487

and criminal capacity and incapacity. Thus, an infant
of any age may take by gift, devise or inheritance and
enjoy rights of property, though he cannot bind him-
self by contract any more effectually at twenty than he
can at twelve or two. An infant, however, is generally
liable for his torts at any age,! but cannot be guilty of
crime until the age of seven, after which, until fourteen,
he is only prima facie incapable of a public offense, and
after fourteen, prima facie capable.2 Usually he may
testify in a court of law,* but he cannot act as a juror,
nor is he generally competent to hold public office. His
capacity to marry depends upon rules peculiar to matri-
monial law already discussed.°®

540. Conflict of Laws with Respect to Infants.

Usually, and so far as concerns capacity in general,
aside from mere capacity to contract or to marry, the
question of infancy or majority is determined by the
law of the domicile of the individual. Thus, a ward of
eighteen, domiciled in Louisiana and of full age there,
was held entitled to sue her guardian in Tennessee to
compel him to turn over her personalty, though she
would still have been deemed an infant had she been
domiciled in Tennessee.*®

With respect to contracts, however, the capacity of
an infant is determined, save as to immovables, by the
law of the place where his contract is made (lex celebra-
tionis), and not by the law of his domicile, and this rule
applies though it is sued upon in the latter place.”

1 See post, secs. 593 et seq.

2 See post, secs. 622 et seq.

3 See post, sec. 612.

4 See post, sec. 610.

5 See ante, secs. 39 et seq.

® Woodward v. Woodward, 87 Tenn. 644; Heistand ». Kunz, 8
Blackf. (Ind.) 345, 46 Am. D. 481. See and compare Barrera v. Al-
puente, 6 Mart. (La., N.S.) 69, 17 Am. D. 179.

7 Male v. Roberts, 3 Esp. 163; Saul ». His Creditors, 5 Mart. (La.,
N. 8S.) 569, 16 Am. D. 212; Sell v. Miller, 11 Ohio St. 331; Ross ».

-
488 CONTRACTS OF INFANTS

If the contract is void or voidable by the law of an
infant’s domicile which is also the place of contracting,
it will be void or voidable though it is by its terms to be
performed in another place where such a contract would
be valid, even though it is sued upon there.?

Capacity to contract with reference to real estate,
or to devise, convey or incumber it, however, is governed
by the lex loci rei sitz.? The rule as to the testamentary
capacity of infants is elsewhere stated.’

CONTRACTS OF INFANTS

541. Contracts of Infants—In General.
By the common law, infants were incapable of binding

’ themselves by contract save in a few exceptional cases.

The law in this regard was meant for the protection of
infants against the consequences of their own natural
improvidence and lack of judgment and discretion, and
the overreaching of persons of maturer years. By some
of the earlier decisions the contracts of infants were
divided into three classes:
1. Void contracts, or those that the courts could pro-
nounce clearly or necessarily prejudicial to the infant.®
2. Voidable contracts, or those of a doubtful nature,
or which the courts could not pronounce to be clearly
against the interests of the minor.
3. Binding contracts, including,
(a) Contracts for necessaries,
(b) Contracts especially authorized by law, and
(c) Those made in performance of well-defined
legal duties.
At present, however, the rule is well established in most

Ross, 129 Mass. 248, 37 Am. R. 321. As to capacity to marry, see
ante, sec. 97. As to the disability of coverture, see ante, sec. 301.

1 Bell ». Packard, 69 Me. 105, 31 Am. R. 251.

2 Sell v. Miller, 11 Ohio St. 331.

5 See post, sec. 609.

‘Baker ». Lovett, 6 Mass. 78, 80, 4 Am. D. 88.

» See Oliver v. Houdlet, 13 Mass. 237, 7 Am. D. 134, and note.
CONTRACTS OF INFANTS 489

jurisdictions that none of an infant’s contracts, not il-
legal in themselves, are absolutely void, but are void-
able merely, at his option. This rule affords full protec-
tion to the minor by giving him the right to determine
when he reaches full age, and frequently before, whether
he will avoid his contract or not, and relieves the courts
of the burden of determining in advance, either on the
face of the transaction or from collateral inquiry, whether
any contract is clearly prejudicial to the infant or whether
it might possibly inure to his benefit.!_ An infant’s power
of attorney, however, is by the older and many modern
decisions absolutely void:?

542. Contracts Binding upon Infants—Contracts Au-
thorized by Statute—Quasi Contracts.

Before discussing the precise effect of the voidable
contracts of infants and the mode of ratifying or avoid-
ing them, it will clear the way to consider first such
contracts or obligations of a contractual nature as are
binding upon him.

Where a statute expressly or by reasonable intendment
authorizes or directs an infant to make a contract, it
will bind him, at least if entered into in substantial
compliance with the statutory terms. And where the
statute is couched in general terms, as when it says “any

* Fonda v. Van Horne, 15 Wend. (N. Y.) 631, 30 Am. D. 77; Weaver
». Jones, 24 Ala. 420; Askey v. Williams, 74 Tex. 294, 5 L. R. A.
176, and note; Logan »v. Gardner, 136 Pa. 588, 20 Am. St. R. 939;
Monumental Building Assn. ». Herman, 33 Md. 128; Baker ». Kennett,
54 Mo. 82; Union Life Ins. Co. v. Hillard, 63 Ohio St. 478, 53 L. R. A.
462, 81 Am. St. R. 644; Cole v. Pennoyer, 14 Ill. 158; Mustard v. Wohl-
ford’s Heirs, 15 Gratt. (Va.) 329, 76 Am. D. 209. As to conveyances
see post, sec. 579. If any of an infant’s contracts are void anywhere
at the present time, they must be such as the court can pronounce
clearly to his prejudice. Zouch v. Parsons, 3 Burr. 1794, 1 W. BI. 575;
note to Craig ». Van Bebber, 18 Am. St. R. 573, 724; Owen v. Long,
112 Mass. 403; Tucker v. Moreland, 10 Pet. (U. S.) 58; Robinson ».
Coulter, 90 Tenn. 705, 25 Am. St. R. 708.

2See post, sec. 607; Fonda v. Van Horne, supra.
490 CONTRACTS OF INFANTS

person,” it will be construed to include infants unless,
upon the reading of the whole statute and in view of
its apparent purpose, the inclusion of infants is not rea-
sonably within the legislative intent.1_ So, an infant is
liable upon his own recognizance to secure his release from
imprisonment on a criminal or quasi criminal charge, the
statute making no distinction between minor defendants
and others, not only because the statute authorizes the
obligation, but because his enlargement is in the nature
of a necessary.2, A minor may make a valid assignment
for the benefit of creditors under a statute authorizing
“every person” to so assign,’ and is liable upon a bas-
tardy bond given under a similar statute.‘ An infant’s
contract of enlistment in the army is valid upon similar
grounds.’ Contracts of apprenticeship entered into pur-
suant to modern statutes are likewise binding to some ex-
tent upon the infant apprentice.*®

So a minor, independent of statute, may be sued in form
of contract in certain cases where pure tort is the founda-
tion of liability. Thus, where he converts the goods of the
plaintiff and sells them to a third person, he has been held
liable like an adult, in assumpsit for the price received
upon the resale.”

543. Contracts in Performance of Legal Obligations.
Contracts to do, or in performance of what he is legally

Earl of Bucks ». Drury, Wilmot, 194; People ». Mullen, 25 Wend.
(N. Y.) 698.

2State v. Weathermore, 12 Kan. 463; McCall v. Parker, 13 Met.
(Mass.) 372, 46 Am. D. 735.

3 People v. Mullen, supra.

4 People v. Moores, 4 Denio (N. Y.), 518, 47 Am. Dec. 272; Stowers
v. Hollis, 83 Ky. 544.

5 See Morrisey v. Perry, 187 U.S. 157.

® See post, sec. 590.

7 Shaw v. Coffin, 58 Me. 254, 4 Am. R. 290; Elwell ». Martin, 32 Vt.
217. See Munger v. Hess, 28 Barb. (N. Y.) 75. So as to money em-
bezzled. Bristow v. Eastman, 1 Esp. N. P. C. 172. See and compare
post, sec. 577.
CONTRACTS OF INFANTS 491

or equitably bound to do, and would be legally compel-
lable to do, are binding on the infant. Indeed, some of
the transactions noticed in the preceding section may be
regarded as valid under this head.! So, an infant trustee
is bound by his conveyance of the trust estate in which
he has no beneficial interest, and cannot avoid it where
it is a disposition which equity would have compelled.’

544, Infant Bound for Antenuptial Debts of Wife.

As a common-law incident of marriage, an infant is
bound for the antenuptial debts of his wife to the same
extent that she was liable thereon.’

545. Contracts for Necessaries—In General.

An infant is bound by his contracts for necessaries.
Not only is this a rule of justice, but to hold the contrary
would often involve him in embarrassment and suffering
by reason of the natural disinclination of third persons
to trust him, whatever might be his present or ultimate
means, ability or prospects. Indeed it is sometimes
said that an infant’s liability to pay for necessaries does
not rest upon the theory of contract made in fact, but
rather upon that of quasi contract, for he is deemed
incapable in law of giving such assent as is a necessary
and constant element in true contract. This view is
further supported by the fact that he is bound to pay
for necessaries, not what he expressly agrees to pay, but

1See People v. Moores, supra.

2 Zouch v. Parsons, 3 Burr. 1794, W. Bl. 575; Trader v. Jarvis, 23
W. Va. 100; Elliott » Horn, 10 Ala. 348, 44 Am. Dec. 488; Starr v.
Wright, 20 Ohio, 97; Prouty v. Edgar, 6 Ia. 353; Bridges v. Bidwell,
20 Neb. 185. See Selden’s Lessee v. Newton, 3 Ohio, 494, as to vol-
untary partition where one party is an infant. Amey ». Cockey, 73
Md. 297.

3 Roach & McLean v. Quick, 9 Wend. (N. Y.) 2388; Anderson ».
Smith, 33 Md. 465; ante, sec. 180.

‘Zouch »v. Parsons, supra; Hyman v. Cain, 3 Jones’s L. (N. Car.)
111,
492 CONTRACTS OF INFANTS

what they are reasonably worth,! and in the rule that
an infant is not bound by his contract for necessaries
to be supplied in the future, but may repudiate it at any
time, whereupon he is liable only for such necessaries as
he had actually received or enjoyed.’

546. What Are Necessaries—Functions of Court and
Jury.

Within the general doctrine of necessaries are food
and lodging, apparel, medical attendance and nursing in
illness, and a common school education, at least.’

Before considering in detail what articles are necessaries,
it is well to note that in controversies involving neces-
saries it is for the court to say as a matter of law whether
the articles supplied the minor are necessaries in their
nature. It is then for the jury to determine whether
they are necessaries in the particular case, in view of the
collateral facts and circumstances in evidence.‘

547. Necessaries Concern the Person and Not the
Estate.

It is generally laid down that necessaries for an infant
concern his person and not his estate, and that one who
would deal concerning the latter should deal with his
guardian. It is therefore held that an infant is not

1 Keener on Quasi Contracts, 20; Bishop on Contracts, sec. 908;
Trainer v. Trumbull, 141 Mass. 527; Locke v. Smith, 41 N. H. 346.

2 Gregory v. Lee, 64 Conn. 407, 25 L. R. A. 618; Wallin v. Park Co.,
127 Ia. 131; Jones v. Valentine’s School of Telegraphy, 122 Wis. 318;
Peck v. Cain, 27 Tex. Civ. App. 38.

’ Coke on Lit. 172a; Kilgore ». Rich, 83 Me. 305, 23 Am. St. R. 780,
12 L. R. A. 859.

‘ Beeler v. Young, 1 Bibb. (Ky.) 519; Decell ». Lewenthal, 57 Miss.
531; Tupper ». Caldwell, 12 Met. (Mass.) 559, 46 Am. D. 704; Bent ».
Manning, 10 Vt. 230; Johnson v. Line, 6 Watts & S. (Pa.) 80, 40 Am.
D. 542; Jordan v. Coffield, 70 N. Car. 110. The English rule, which
amounts to practically the same thing, permits the court to submit
the question to the jury only where there is some evidence upon which
the jury might reasonably find that the things supplied were neces-
saries. Ryder ». Wombwell, L. R. 4 Exch. 82, 40.
CONTRACTS OF INFANTS 493

bound to pay for repairs to his property, though without
them it would have fallen into decay.! Neither is he
liable for materials purchased and used in the erection
of a house upon his land,? nor is his property subject to
a mechanic’s lien for labor or materials furnished under
a contract with him,’ unless the statute confers a right of
lien in such cases.‘ Upon the same principle it has been
held that he is not liable for the fees of an attorney em-
ployed by him in a suit respecting his property,® nor for
insurance thereon.* But the infant is liable for attorney’s
fees reasonably incurred in protecting his personal rights.’

While a contract of life insurance is voidable at any
time at the option of the infant, there is a tendency to
hold that he cannot recover premiums already earned
and paid if the contract was reasonable and provident
in view of his circumstances.®

548. Education.
A common school education would doubtless be held a
necessary in all cases, but a college education has been

1 Tupper v. Caldwell, 12 Met. (Mass.) 559, 46 Am. D. 704; Phil-
lips v. Lloyd, 18 R. I. 99; Wallace ». Bardwell, 126 Mass. 366; West »v.
Gregg’s Admr., 1 Grant’s Cas. (Pa.) 53.

2 Freeman ». Bridger, 49 N. Car. 1, 67 Am. D. 258; Price v. Jennings,
62 Ind. 111.

4 McCarty v. Carter, 49 Ill. 53, 95 Am. D. 572; Alvey v. Reed, 115
Ind. 148, 7 Am. St. R. 418.

4 Tucker v. Gest, 46 Mo. 339.

5 Munson v. Washband, 31 Conn. 303, 83 Am. D. 151; Phelps ».
Worcester, 11 N. H. 51. Contra, Eperson v. Nugent, 57 Miss. 45,
34 Am. R. 434; Searcy v. Hunter, 81 Tex. 644, 26 Am. St. R. 837,
where the services of the attorney were beneficial in protecting or
recovering it.

6 New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345; Simp-
son v. Ins. Co., 184 Mass. 348, 100 Am. St. R. 560, 63 L. R. A. 741.

7 Munson v. Washband, 31 Conn. 303, 83 Am. D. 151; Barker ».
Hubbard, 54 N. H. 539, 20 Am. R. 160; Engelbert v. Troxell, 40 Neb.
195, 26 L. R. A. 177, 42 Am. St: R. 665; Askey v. Williams, 74 Tex.
294, 5 L. R. A. 176, and note.

8 See Elliott on Ins., sec. 11; Johnson ». Northwestern Mut. Life
Ins. Co., 56 Minn. 365, 26 L. R. A. 187, 45 Am. St. R. 473, and note.
494 CONTRACTS OF INFANTS

held not a necessary for an infant of moderate means,'
and so of a professional training.2 Naturally, where
education of a certain kind is deemed a necessary for an
infant, the expense of reasonable board to enable him to
attend school will likewise be deemed a necessary.* In
spite of the authorities, or dearth of authorities, on the
subject, it would seem that the amount and kind of edu-
cation that should be deemed necessary for an infant in
any particular case should depend largely upon his means
and station, his probable ability to receive and make use
of it, and upon the customs of the community in this re-
gard, which in this country certainly tend to sanction
more and more of education beyond the common schools.‘

549. Same—Rule Where Infant Is Already Supplied.

As a general rule nothing is a necessary for an infant
unless he has need of it. If he has already been suffi-
ciently supplied, whether by his own efforts, or by his
parents or guardians or by strangers, he cannot be held
for a further supply of like articles. If, therefore, the plain-
tiff supplies what he believes to be necessaries under a
mistake as to the infant’s circumstances or needs, it is
generally held that he acts at his peril, and if it turns out
that the infant was already sufficiently supplied, or that the
things are not necessaries in view of the infant’s condition
or situation in life, he cannot recover though he made due
inquiry and acted in good faith.> The mere fact, how-

1 Middlebury College v. Chandler, 16 Vt. 683, 42 Am. D. 537; Pick-
ering ». Gunnig, W. Jones, 182.

2 Turner 0, Gaither, 83 N. C. 357, 35 Am. R. 574; Bouchell v. Clary,
3 Brev. (S. C.) 194. Compare Walter v. Everhard, 2 Q. B. (1891) 369;
Mauldin »v. Southern Shorthand and Business University, 126 Ga. 681.

* Kilgore v. Rich, 83 Me. 305, 12 L. R. A. 859, 23 Am. St. R. 780.

4 See Peters v. Fleming, 6 M. & W. 42; Cory v. Cook, 24 R. I. 421;
Mauldin v, Southern Shorthand and Business University, supra.

5 Johnstone v. Marks, L. R. 19 Q. B: D. 509; Brayshaw »v. Eaton, 7
Scott, 183; Barnes ». Toye, 13 Q. B. D. 410; Johnson ». Lyons, 6
W.&S. (Pa,) 80, 40 Am. D. 542; Trainer ». Trumbull, 144 Mass. 527,
59 Am. R. 113, and note.
CONTRACTS OF INFANTS 495

ever, that an infant has property or income sufficient to
enable him to supply himself with necessaries will not de-
feat a recovery if he was not in fact supplied.!

Where the infant lives with his parents or guardian, or
has a parent or guardian who assumes to supply his
wants, a presumption arises that they were in fact sup-
plied. But this presumption is by no means conclusive,
and may be rebutted by evidence that he was in fact in
need of the things supplied,’ even though his own waste
or improvidence was the cause.’

550. ‘‘ Necessaries ” a Relative Term.

The term ‘‘necessaries”’ is a relative one, and has refer-
ence, not merely to the strict needs of the minor, but to
his circumstances, condition or station in life, and what
is conducive to, and fairly proper for, his comfortable
support and education according to his fortune and
rank.‘ Thus, a liberal supply of rich clothing might be a
necessary for an infant of wealth and high social standing,
but not for an infant in humble circumstances.’ So, a
bridal outfit, including a chamber set, was held a neces-
sary for an infant about to be married,® though it would
be held otherwise of an infant not contemplating such
a step.

551. Same—Articles of Ornament and Luxury.
Articles of mere luxury or ornament, including jew-

1 Burghart ». Hall, 4 Mees. & W. 727; Rivers v. Gregg, 5 Rich. Eq.
(S. C.) 274; Nicholson ». Wilborn, 13 Ga. 467.

2 Bainbridge v. Pickering, 2 W. Bl. 1325; Trainer ». Trumbull, 144
Mass. 527, 59 Am. R. 118, note; Hull v. Connally, 3 McCord (8. C.),
6, 15 Am. D. 612; Hoyt.v. Casey, 114 Mass. 397, 19 Am. R. 371.

2 Rivers v. Gregg, 5 Rich. Eq. (S. C.) 274. See Freeman v. Bridges,
4 Jones’s L. (N. C.) 1, 67 Am. D. 258; Perrin v. Wilson, 10 Mo. 451.

4 Rider +. Wombwell, L. R. 4 Ex. 32; Peters v. Fleming, 6 Mees. & W.
46; Hands ». Slaney, 8 T. R. 578; Rivers ». Gregg, supra; Glover ».
Ott, 1 McCord (S. C.), 572; Breed v. Judd, 1 Gray (Mass.), 455.

5 Peters v. Fleming, supra; Hands »v. Slaney, supra.

4 Jordan v, Coffield, 70 N. C. 110.
496 CONTRACTS OF INFANTS

elry | and watches,” are not ordinarily necessities, though
otherwise of a watch under some circumstances.’ Jewelry
intended as a gift to the betrothed wife of a wealthy
infant, however, has been regarded as a necessary.‘
Horses purchased for either business or pleasure > and
their keep,® are not necessaries, though it may be other-
wise of a horse to be ridden under medical advice.’
Where a horse is a necessary, his accouterments would
ordinarily be necessaries.* Traveling for pleasure is not
a necessary,’ though traveling for health might be.!?
Carriages and bicycles are not ordinarily necessaries,
though in special cases either might be considered so.1!

Smoking materials are not necessaries,” nor are liquors,
sporting goods and musical instruments," nor dinners
for friends.'*

1 Peters v. Fleming, supra; Ryder v. Wombwell, L. R. 4 Ex. 32; Mc-
Kenna v. Merry, 61 Ill. 179; Lefels ». Sugg, 15 Ark. 137.

2 Berolles v. Ramsey, Holt’s N. P. 77.

8 See Barnes v. Toye, 18 Q. B. Div. 410, 414; Peters ». Fleming, 6
M. & W. 42.

4 Jenner ». Walker, 19 L. T. (N. 8.) 398.

5 Rainwater v. Durham, 2 N. & McC. (8. C.) 524, 10 Am. D. 6387;
Grace v. Hale, 2 Humph. (Tenn.) 27, 36 Am. Dec. 296; House v. Alex-
ander, 105 Ind. 109, 55 Am. R. 189; Beeler ». Young, 1 Bibb (Ky.),
519; Mohney v. Evans, 51 Pa. 80.

6 Merriam v. Cunningham, 11 Cush. (Mass.) 40.

7 Hart v. Prater, 1 Jur. 623. BL

® See Hill ». Arbon, 34 L. T. (N. 8.) 125. a

9 McKenna v. Merry, 61 Ill. 177.

10 Howard ». Simpkins, 70 Ga. 322.

11 Pyne ». Wood (1888), 145 Mass. 558. In this case the infant lived
at home but worked in a shop a mile away, and used the bicyele in
going home to dinner, which he could not have done in the time al-
lotted without it. The court cites Merriam ». Cunningham, 11 Cush.
(Mass.) 40. See Clyde Cycle Co. v. Hargreaves (1898), 78 L. T. (N.S.)
296. Compare Rice ». Butler (1899), 160 N. Y. 578, 47 L. R. A. 303,
73 Am. St. R. 703.

#2 Bryant v. Richardson, L. J. 3 Ex. 98, 12 Jur. (N. 8.) 300.

% Saunders v. Ott, 1 McCord (S. C.), 572; Price v. Sanders, 60 Ind.
310; House v. Alexander, 105 Ind. 109, 55 Am, R. 189,

4 Wharton v. McKenzie, 5 Q. B. 606.
CONTRACTS OF INFANTS 497

552. Money as a Necessary.

In general money is not a necessary for an infant
because he has not the discretion properly to expend it.
If nothing be shown, therefore, beyond a mere loan of
money to the infant, no recovery can be had. Even
where the money was actually expended for necessaries,
it is doubtful whether the infant is liable at law unless
the plaintiff actually saw to its application... But one
who, at the express or implied request of the infant,
advances money to a third person to pay for necessaries
actually supplied, can recover their value at law;? and an
infant has been held liable in equity for the value of neces-
saries actually procured with borrowed funds, though the
lender neither applied them nor saw to their application.’

‘But though necessaries are said to concern the person
and not the estate, it has been held that one who advances
money to an infant which the latter uses to pay off valid
incumbrances on his land, may be subrogated to the
rights of the mortgagee, so far as this can be done with-
out depriving the infant of the value of the property
in its incumbered state.*

553. Necessaries for Family.
Necessaries for an infant include necessaries for - his
wife and children.®

1 Darby v. Boucher, 1 Salk. 279; Ellis v. Ellis, 5 Mod. 368; Earle ».
Peale, 1 Salk. 387, 10 Mod. 67; Swift v. Bennett, 10 Cush. (Mass.)
436.

2 Kilgore v. Rich, 83 Me. 305, 23 Am. St. R. 780, 12 L. R. A. 859;
Conn ». Coburn, 7 N. H. 368, 26 Am. D. 746; Swift ». Bennett, supra;
Smith v. Oliphant, 2 Sandf. (N. Y.) 306.

3 Price v. Sanders, 60 Ind. 310; Watson v. Cross, 2 Duv. (Ky.) 147.
See also Marlow ». Pitfield, 1 P. Wms. 558.

4.McGreal »v. Taylor, 167. U.S. 688; Nottingham, etc., Soc. v. Thurs-
ton, 19 L. T. R. 54. Compare Bicknell v. Bicknell, 111 Mass. 265;
Magie v. Welsh, 18 Cal. 155; Thormachlen v. Kaeppel, 86 Wis. 378.

5 Chapple v. Cooper, 138 M. & W. 258; Turner v. Trisby, 1 Stra. 168;
Chapman ». Hughes, 61 Miss. 339; Cantine v. Phillips, 5 Harr. (Del.)
428; Price v. Sanders, supra. An infant is of course liable for the
funeral expenses of wife or children. Bradley v. Pratt, 23 Vt. 378.

32
498 CONTRACTS OF INFANTS

554. Contracts Touching Trade or Business.

An infant is not bound by his contracts in business or
trade, for he is not deemed to have the capacity necessary
to its intelligent management and conduct. It makes no
difference that he in fact derives his livelihood from such
trade or business or receives substantial benefit therefrom,
or that the contract in question was necessary to its suc-
cessful prosecution.! Hence, goods for use in his busi-
ness,” supplies for farming,* horses or the keep of horses in
business,‘ the services of a clerk or other agent or servant
employed therein,’ or the rent of a place where his business
is carried on,® have been severally held non necessaries.

555. Contracts to Render Service.

Aside from contracts of technical apprenticeship, which
are later discussed,’ an infant’s contracts to render service
are voidable at his option. In other words, the infant is
entitled to all the rights of a servant so long as he chooses
to serve,® but is privileged to leave at any time, though the
agreed term of service has not expired, without liability for
breach of contract. Not only this, but the infant who

1 Rainwater v. Durham, 2 N. & McC. 524,10 Am. D. 637; Tupper 2.
Cadwell, 12 Met. (Mass.) 560, 46 Am. D. 704; Ryan o. Smith, 165
Mass. 303. See Georgia Code, 1882, sec. 2733; McKamy ». Cooper, 81
Ga. 679.

2 House »v. Alexander, 105 Ind. 109, 55 Am. R. 189; Grace v. Hale,
2 Humph. (Tenn.) 27, 36 Am. D. 296; Wood ». Losey, 50 Mich. 475;
Skinner v. Maxwell, 66 N. Car. 45.

3 Decell ». Lewenthal, 57 Miss. 331, 34 Am. R. 449; House ». Alex-
ander, supra. Contra, Mohney v. Evans, 51 Pa. 80.

4 Merriam ». Cunningham, 11 Cush. (Mass.) 40; ante, sec. 551, and
oc.ces cited in note 5.

Zacpherson on Infancy, 501.

- Lowe v. Griffith, 1 Scott, 458. Compare Holmes ». Blogg, 8 Taunt.
7 See post, Chap. XLVI.

8 Nightingale ». Worthington, 15 Mass. 272, 8 Am. D. 101; Nash-
ville, ete., R. Co. v. Elliott, 1 Coldw. (Tenn.) 612, 78 Am. D. 506.

° Morse v. Ely, 154 Mass. 458, 26 Am. St. R. 263; Gaffney v. Hay-
den, 110 Mass. 137, 14 Am. R. 580.

 
CONTRACTS OF INFANTS 499

quits an employment contrary to the terms of his contract
may recover upon quantum meruit the reasonable value of
the services actually rendered,! without deduction for dam-
ages caused by the renunciation, for to allow them would
be to virtually enforce his contract.2. Yet the master is en-
titled to a deduction or set-off for wages actually paid, and
for board and other necessaries furnished,’ and may prob-
ably show the infant’s negligence, misconduct or want of
skill as bearing on the reasonable value of his services.‘

5656. Same—Infant Member of Family.

‘Where an infant is received into the family of his
employer under a fair agreement, express or implied,.
that he is to receive board, clothing and education in
return for his services, instead of money, and this agree-
ment is carried out in good faith by the defendant, the
infant cannot recover for his services.> If there is no
such agreement however, the infant is entitled to reason-
able wages, and the same is true if there is such an agree-
ment and it is breached, at least from the time such
breach occurs.®

: Medbury v. Watrous, 7 Hill (N. Y.), 110; Morse ». Ely, supra; Gaff-
ney v. Hayden, supra; Judkins v. Walker, 17 Me. 38, 35 Am. D. 229;
Hagerty v. Nashua Lock Co., 62 N. H. 576.

2 Vent v. Osgood, 19 Pick. fess: ) 571; Medbury ». Watrous, supra;
Derocher v. Continental Mills, 58 Me. 217, 4 Am. R. 286; Whitmarsh ».
Hall, 3 Denio (N. Y.), 375. Contra, Thomas v. Dike, 11 Vt. 278, 34
Am. D. 690; Moses ». Stevens, 2 Pick. (Mass.) 332; Lowe 2. Sinklear,
27 Mo. 308.

3 Waugh. v. Emerson, 79 Ala. 295; Stone ». Dennison, 13 Pick.
(Mass.) 1, 23 Am. D. 654; Meredith v. Crawford, 34 Ind. 399; Taft ».
Pike, 14 Vt. 405, 39 Am. D. 228. Compare Morse v. Ely, 154 Mass.
458, 26 Am. St. R. 263.

4 Vehue ov. Pinkham, 60 Me. 142,

* Wilhelm v. Hardman, 13 Md. 140; Mountain v. Fisher, 22 Wis. 93:
Brown v. Yasan, 74 Ind. 305; Stone ». Dennison, 13 Pick. (Mass.) 1,
23 Am. D. 654; Spicer v. Earl, 41 Mich. 191, 32 Am. R. 152. See alee
Clements v. London, etc., R. Co., L. R..2 Q. B. (1892) 482.

* Lockwood v. Robbins, 125 Ind. 398; Mountain »v, Fisher, supra.
CHAPTER XLIV

RATIFICATION AND AVOIDANCE OF INFANT'S CONTRACTS—
PARTICULAR CONTRACTS AND TRANSACTIONS

557. Ratification and Avoidance in General.

An infant’s contracts being quite generally voidable
and not void, it remains to be seen how and under what
circumstances and conditions they may be ratified or
avoided.

558. Time of Ratification and Avoidance.

It is clear that an infant can ratify his voidable. con-
tract only after his disability has ceased.! It is held,
however, that ratification, if the contract is executory,
must take place before suit.2 But in the case of con-
tracts involving the infant’s personal property and per-
sonal rights, he may avoid or rescind at any time before
full age or within a reasonable time thereafter. To with-
hold the right of rescission in such cases until the infant
comes of age would often make it utterly worthless.’ The
exceptional rule as to an infant’s conveyance of land is
discussed elsewhere.‘

559. Who May Ratify or Avoid.
The right to ratify or disaffirm his voidable contracts

1 Hastings v. Dollarhide, 24 Cal. 195; Freeman v. Nichols, 138 Mass.
313; Merriam »v. Wilkins, 6 N. H. 482, 25 Am. D. 472; Lansing ¢.
Mich. Cent. R. R. Co., 126 Mich. 663, 86 Am. St. R. 567; O’Dell vr.
Rogers, 44 Wis, 136, 181.

? Hale v. Gerrish, 8 N. H. 374; Freeman »v. Nichols, supra.

3 Towle v. Dresser, 73 Me. 252; Bool v. Mix, 17 Wend. (N. Y.) 119,
31 Am. D. 285; Stafford ». Roof, 9 Cow. (N. Y.) 626; Clarke ». Van
Court, 100 Ind. 113, 50 Am. R. 774; Miller v. Smith, 26 Minn. 248,
37 Am. R. 407; Price ». Furman, 27 Vt. 268, 65 Am. D. 194,

4 See post, sec. 580.

500
CONTRACTS OF INFANTS 501

is personal to the infant, and cannot be exercised by the
adult party to the contract,! or by any third person for
the infant so long as the latter is living and sane.? After
his death the right of avoidance devolves upon his heirs,
in the case of his conveyance,’ or upon his personal
representatives in other cases,‘ and if he becomes insane,
upon his guardian in any case.° But a guardian cannot
avoid or ratify the contracts of his ward because of
infancy alone, unless by special authority from the
infant.®

560. Is Knowledge of Legal Rights Essential to Ratifi-
cation?

It is held or asserted in some cases that a ratification,
at least where it rests upon an express new promise, is
valid only where the former infant has, at the time,
full knowledge that he is not legally bound;’ but the
weight of reason and recent authority is the other way.®
In cases where the ratification is alleged to be the result
of fraud or undue pressure, however, ignorance of legal
rights may have a bearing on the issue.°

1 Holt v. Ward Clarencieux, 2 Strange, 937; Warwick v. Bruce, 2
M. &S. 205; Stiff ». Keith, 143 Mass. 224; Cannon v. Alsbury, 1 A. K.
Marsh. (Ky.) 76, 10 Am. D. 709.

2 Keane v. Boycott, 2 H. Bl. 511; Mansfield v. Gordon, 144 Mass.
168; Holmes v. Rice, 45 Mich. 142.

+ Bozeman v. Browning, 31 Ark. 364; Gillenwaters ». Campbell, 142
Ind. 529.

4 Jefford v. Ringold, 6 Ala. 554.

5 Chandler v. Simmons, 97 Mass. 508, 93 Am. D. 117.

6 See post, sec. 762.

7Harmer v. Kelling, 5 Esp. 102; Hinley ». Margaritz, 3 Pa. 428;
Owen v. Long, 112 Mass. 403; Reed v. Bashears, 4:Sneed (Tenn.), 118;
Thing v. Libbey, 16 Me. 55; Baker v. Kennett, 54 Mo. 82; Turner ».
Gaither, 83 N. Car. 357, 35 Am. R. 574.

s Am. Mortgage Co. v. Wright, 101 Ala. 658; Bestor v. Hickey, 71
Conn. 181; Clark v. Van Court, 100 Ind. 113, 50 Am. R. 774; Taft 2.
Sargent, 18 Barb. (N. Y.) 320; Morse ». Wheeler, 4 Allen (Mass.), 570;
King v. Jamieson, 66 Mo. 424; Anderson v. Soward, 40 Ohio St. 325,
48 Am. R. 687.

9See Brooke v. Galley, 2 Atk. 34; Harmer v. Kelling, supra.
502 CONTRACTS OF INFANTS

561. What Constitutes Ratification and Avoidance—
In General.

What constitutes ratification or avoidance depends
upon the nature of the contract, and particularly upon
whether it is executed upon one side or both or is wholly
executory. The subject can probably be best presented
by discussing the infant’s voidable contracts under the
following heads:

1. Contracts wholly executory on both sides.

2. Contracts executed by the minor only.

3. Contracts wholly or partly executed in favor of the

infant or on both sides.

4. Contracts involving continuing rights of property or

continuing relations.*

562. Same—Contracts Wholly Executory.

Where no act of performance has been done on either
side, the minor is not bound by his voidable contract
at common law unless he does or says something in
positive affirmation of it after reaching full age. In other
words, he may simply rest upon his right of disaffirmance,
and when sued for breach, whether during minority, or
at any time afterward, set up as a defense his infancy
when the contract was made, unless he has said or done
something in positive affirmance thereof after full age.
The only remaining question as to such contracts, there-
fore, is what words or acts amount to a positive affirm-
ance, a matter discussed in another place.”

563. Contracts Executed by Infant Alone.

Where the contract has been wholly or partly per-
formed by the infant alone, he may avoid it at any time
during minority and within a reasonable time thereafter,
and may recover whatever he parted with in the course
of performance, or its actual value if it cannot be re-
turned in specie.* The only bar to the infant’s recovery

1See Nichols, etc., Co. ». Snyder, 78 Minn. 502.

2 See post, secs. 568 et seq.

* Corpe v. Overton, 10 Bing. 252; Medbury v. Watrous,7 Hill (N. Y.),
CONTRACTS OF INFANTS 503

will be his ratification of the transaction in accordance
with rules stated later on.! His right to rescind is not
affected by the transfer of the property to a bona fide
purchaser, and he may follow it and recover it from
him.’

564. Contracts Wholly or Partly Executed in Infant’s
Favor or on Both Sides.

Under this head much of the difficulty and uncer-
tainty as to infant’s contracts arises. It is the inclination
of courts to afford the infant adequate protection on the
one hand, and to hold him to common honesty on the
other. They strive, in other words, to make his incom-
petency a shield without rendering it a sword. It is there-
fore well settled that if an infant rescinds his voidable con-
tract he is bound to return whatever of value he got under
it, provided he still has it in specie. This general rule will
be found recognized in some way in nearly all the cases on
this subject. But even here there is some conflict. Some
courts hold that a return of the consideration, or offer to
return it, is a condition precedent to a valid rescission,
at least where the infant seeks affirmative relief in recover-
ing what he paid or parted with himself. Others hold
that the infant may rescind in such cases by timely no-
tice without making or tendering restoration of the con-

110; Shurtleff ». Millard, 12 R. I. 272, 34 Am. R. 640. As to services
rendered by an infant under contract which he rescinds; see ante,
sec. 555. As to his conveyances, see post, secs. 579 et seq.

1 See post, secs. 567 et seq.

2 See post, sec. 581, and cases cited. In such case the infant must
restore or tender back what he received for his property if he has it in
specie. But it seems that tender should be made to the original pur-
chaser, and not to the latter’s vendee. Downing ». Stone, 47 Mo. App.
144, and cases cited.

3 Manning v. Johnson, 26 Ala. 446, 62 Am. D. 732; Smith v. Evans,
5 Humph. (Tenn.) 70; Braucht v. Graves-May Co., 92 Minn. 116;
Engelbert v. Troxell, 40 Neb. 195, 26 L. R. A. 177, 42 Am. St. R. 665;
Riley ». Mallory, 33 Conn. 201; Eureka Co. ». Edwards, 71 Ala. 248,
46 Am. R. 314.
504 CONTRACTS OF INFANTS

sideration, but that the act of rescission revests the title
thereto in the other party who may thereupon recover
the property,' or its value if the infant subsequently con-
verts it to his own use.”

565. Same—Where Consideration Cannot Be Re-
turned in Specie.

Where the infant is unable to return the considera-
tion because he has wasted, squandered, or otherwise
disposed of it, or has lost it or it has perished on his
hands, the courts quite generally hold that he may still
rescind and recover whatever he parted with himself,
without returning or tendering an equivalent in value.
This is a harsh rule but most courts have been unable to
find a different one that will give the infant adequate
protection against his ignorance, inexperience and im-
providence.*

566. Same—Holdings That Infant Cannot Rescind
Without Accounting for Substantial Benefits.

But even where the infant has not the fruits of the
contract in specie, it is held by some courts that he must,
at least in the absence, of fraud upon him, answer to
the adult or allow him for the value of substantial bene-
fits received thereunder as a condition of disaffirmance,

1 McCarthy v. Henderson, 138 Mass. 310; Clark ». Van Court, 100
Ind. 118, 50 Am. R. 774; Shirk v. Shultz, 113 Ind. 571; Fitts ». Hall, 9
N. H. 441; Robinson v. Berry, 93 Me. 320; Carpenter ». Carpenter, 45
Ind. 142; Mustard v. Wohlford, 15 Gratt. (Va.) 329, 76 Am. D. 209.
See also Strain v. Wright, 7 Ga. 568.

2 Fitts ». Hall, supra; Drude v. Curtis, 183 Mass. 317, 62 L. R. A.
755.

3 Craig v. Van Bebber, 100 Mo. 584, 18 Am. St. R. 569; Price ».
Furman, 27 Vt. 268, 65 Am. D. 194; Strain ». Wright, 7 Ga. 568;
Corey v. Burton, 32 Mich. 30; Mustard v. Wohlford, 15 Gratt. (Va.)
329, 76 Am. D. 209; Boody v. McKinney, 23 Me. 517; Lemmon ». Bee-
man, 45 Ohio St. 505; Craighead ». Wells, 21 Mo. 404; Pyne ». Wood,
145 Mass. 558; Chandler v. Simmons, 97 Mass. 508, 93 Am. D. 117;
Green v. Green, 69 N. Y. 558, 25 Am. R. 233. See statutes in Iowa
and some other states. As to the remedy, if any, where the infant
was guilty of fraud, see post, secs, 596 et seq.
CONTRACTS OF INFANTS 505

at least where he seeks affirmative relief in recovering
what he paid or parted with himself.1_ Thus, it was held
that an infant who had insured his life could not recover
upon rescission so much of the premiums paid as were
intended to cover the current annual risk assumed by
the company, the contract being provident, fair and rea-
sonable in itself, and free from fraud.? So, where an infant
bought and paid for non-necessaries and then sought to
rescind and return the property and recover the purchase
money, the seller was held entitled to a deduction for the
value of the use of the property, including, as an incident
thereto, the deterioration in value due to ordinary wear
and tear.’ Furthermore, authorities are not altogether
wanting that hold that an infant, though he no longer
has in specie the consideration for his contract for non-
necessaries, and is not seeking affirmative relief, is still
answerable in an action at law for the substantial ben-
efits received.*

1 Valentini v. Canali, 24 Q. B. D. 167; Holmes v. Blogg, 8 Taunt.
508, 2 Moore, 552, with which compare Corpe v. Overton, 10 Bing.
252, 3 Moore & 8. 738. To the same effect see Breed v. Judd, 1 Gray
(Mass.), 455, 457; Riley v. Mallory, 33 Conn. 201, 206; Bailey ». Barn-
berger, 11 B. Monr. (Ky.) 113; Adams v. Beall, 67 Md. 53, 1 Am. St.
R. 379; Bartholomew v. Fennimore, 17 Barb. (N. Y.) 428; Clark.».
Tate, 7 Mont. 171. Compare Gillis ». Goodwin, 180 Mass. 140, 91
Am. St. R. 265. Some courts, however, concede this to be the rule
in equity, though not at law. See Eureka Co. ». Edwards, 71 Ala. 248,
46 Am. R. 314; Hillyer v. Bennett, 3 Edw. Ch. (N. Y.) 222; Lane ».
Dayton, 101 Tenn. 581.

2 Johnson v. N. W. Mut. Life Ins. Co., 56 Minn. 365, 45 Am. St. R.
473, 26 L. R. A. 187. See Chicago Indemnity Assn. ». Hunt, 127 Ill.
259, 277, 2 L. R. A. 549. Contra, Simpson 2. Ins. Co., 184 Mass. 348,
100 Am. St. R. 560, 63 L. R.A. 741.

2? Rice v. Butler, 160 N. Y.-696, 73 Am. St. R. 707, 46 L.-R. A. 682.
Contra, Gillis 1. Goodwin, 180 Mass. 140, 91 Am. St. R. 265. See
also Gray v. Lessington, 2 Bosw. (N. Y.) 257. As to the right of an in-
fant who has enjoyed the privileges of a partner to recover a: premium
paid for admission to the firm, see post, sec. 575.

‘ Hall v. Butterfield, 59 N. H. 354, 47 Am. R. 209; Stack v. Cava-
naugh, 67 N. H. 149. See also Taft v. Pike, 14 Vt. 405, 39 Am. D. 228.
506 CONTRACTS OF INFANTS

567. Consideration for Ratification or New Promise.

An infant’s voidable contract may be ratified without
any new consideration. This is said to be an illustration
of the principle that a past or moral consideration will
support. a promise when it consists of what would con-
stitute a legal obligation, but for some rule of law meant
for the protection of the promisor.! From this state-
ment of the law it might be assumed that if an adult
ratifies a contract made by him during infancy, it con-
stitutes an entirely new undertaking. This, however,
is not true. The original undertaking being ratified,
the defense of infancy is waived and the original promise
is binding ab initio.? If the infant repudiates the orig-
inal promise, but consents to be bound by a new and
different one in consideration of the old, the pleader
should declare on the new undertaking.’

568. Formal Requisites of Ratification.

At common law no particular form is required for
the ratification of an infant’s contracts, whether sealed
or simple, so long as the intent to ratify appears.‘ Stat-
utes in England and in some of our states, however,
require a writing.» But such statutes are applicable
only to express affirmances, and do not prevent an im-
plication of a ratification from conduct or from failure
to seasonably disaffirm.* An express ratification must
be made or communicated to the promisee or his agent.
If made to a stranger it is of no effect.’

1 Lawson on Contr., sec. 108; Reed ». Batchelder, 1 Met. (Mass.)
559. See 53 L. R. A. 365, note.

* Hunt v. Massey, 5 B. & Ad. 902; West ». Penny, 16 Ala. 186, 191.
Compare Edmunds ». Mister, 58 Miss. 766.

3 Minock v. Shortridge, 21 Mich. 304, 316.

4 West v. Penny, 16 Ala. 186, 191.

5 See statutes in Arkansas, Kentucky, Maine, Mississippi, Missouri,
South Carolina, Vermont and West Virginia.

* See post, sec. 571; Cornwall ». Hawkins, 41 L. J. Ch. 435; Rob’:
son v. Hoskins, 14 Bush (Ky.), 393.

7 Chandler v. Glover, 32 Pa. 509; Mayer v. McClure, 36 Miss. 389,
72 Am. D. 190. ,
CONTRACTS OF INFANTS 507

569. What Language or Conduct Constitutes Ratifi-
cation.

As to what language or conduct after full age will
amount to a ratification of a contract made during
infancy, the courts are not wholly agreed. According
to the weight of authority, there must be something more
than such acknowledgment of the debt or obligation as is’
considered sufficient in some jurisdictions to remove the
bar of the statutes of limitations.!. The words or con-
duct, or both, relied upon as a ratification must be such
as to fairly and justly lead to the inference that the former
infant intended to, and did, recognize and adopt as bind-
ing, a contract executory on his part made during infancy.’
Part payment after full age will not of itself amount to a
ratification of a debt contracted during infancy.®

570. Same—Conditional Undertaking.

If the undertaking relied upon as a ratification is con-
ditional, it must be shown that the condition has hap-
pened or been performed.‘ If the promise is to pay when
able, however, ability to pay from present funds or in-
come is all that need be shown, and not ability to pay
without inconvenience.®

1 Dunlap »v. Hales, 2 Jones’s L. (N. Car.) 381; Hale v. Gerrish, 8
N. H. 374; Tibbets v. Gerrish, 25 N. H. 41, 57 Am. D. 307; Whitney ».
Dutch, 14 Mass. 457, 7 Am. D. 229.

2 Tibbets v. Gerrish, 25 N. H. 41, 57 Am. D. 307; Hatch v. Hatch’s
Est., 60 Vt. 160; Bigelow v. Kinney, 3 Vt. 353, 21 Am. D. 589; Tur-
ner v. Gaither, 83 N. Car. 357, 35 Am. R. 574; Breesee v. Stanley, 119
N. Car. 278; Catlin ». Haddox, 49 Conn. 492, 44 Am. R. 249; Edwards
v. Mister, 58 Miss. 765; Tobey v. Wood, 123 Mass. 88, 25 Am. R. 27,
and note; post, sec. 571.

3 Thrupp v. Fielder, 2 Esp. 628; Ford v. Phillips, 1 Pick. (Mass.)
202; Catlin ». Haddox, supra; Rapid Transit Co. v. Sanford (Tex. Civ.
App., 1893), 34 8. W. 587; Robbins v. Eaton, 10 N. H. 561. Compare
Am. Mortgage Co. ». Wright, 101 Ala. 658; Little ». Duncan, 9 Rich.
(S. C.) 55, 64 Am. D. 760; Philpot ». Sandwich Mfg. Co., 18 Neb. 54.

4 Proctor v. Sears, 4 Allen (Mass.), 95; Edgerley v. Shaw, 25 N. H.
514, 57 Am. D. 349, and cases in note below.

5 Thompson v. Law, 4 Pick. (Mass.) 48, 16 Am. D. 325; Kendrick v.
Neisez, 17 Colo. 506.
508 CONTRACTS OF INFANTS

571. Same—Retaining or Disposing of Consideration
After Full Age.

If one who has acquired property, real or personal, by
his ‘contract during minority retains it unreasonably
after full age, he will be held to have ratified the pur-
chase and will be liable for the price if unpaid, and unable
to recover it if paid;' and a fortiori, such retention,
coupled with the exercise of clear acts of ownership over
it, such as mortgaging or selling it, would be deemed.a
ratification.?, And where the former infant is in possession
of property under a contract after he comes of age, though
not for such period as would in itself amount to a ratifi-
cation, slighter acts on his part will amount to a ratifi-
cation than where the contract is executory or he has
nothing in his hands acquired under it. Any express
acknowledgment of liability is said to suffice? and the
same would be true where he had used the property as-his
own after reaching majority.’

572. Other Acts Amounting to Ratification.

Receiving or suing for the purchase price of property
sold during infancy, or otherwise demanding or volun-
tarily accepting performance by the other party after
full age, will be held a ratification.’ So, a landlord who
accepts without dissent rent accruing after majority

1 Henry v. Root, 33 N. Y. 526; Am. Freehold, etc., Co. ». Dykes, 111
Ala. 178, 56 Am. St. R. 38; Philpot v. Sandwich Mfg. Co., 18 Neb. 54;
Boyden v. Boyden, 15 Mass. 359, 8 Am. D. 105; post, sec. 586.

2 Boody v. McKinney, 23 Me. 517; Am. Freehold, etc., Co. v. Dykes,
supra; Ucker». Koehn, 21 Neb. 559, 59 Am. R. 849; Hilton ». Shepherd,
92 Me. 160; Lawson v. Lovejoy, 8 Me. 405, 23 Am. D. 526; Callis ».
Day, 38 Wis. 643, 647. :

’ McCormic v. Leggett, 53 N. Car. 425; Petty v. Rosseau, 94 N. Car.
355; Irvine v. Irvine, 9 Wall. (U. 8.) 617; Middleton ». Hoge, 5 Bush.
(Ky.) 478; Phillips ». Green, 5 T. B. Monr. (Ky.) 344; Scott ». Bu-
chanan, 11 Humph. (Tenn.) 468.

4 Hilton v. Shepherd, 92 Me. 160.

’ Middleton » Hoge, supra; Jones ». Phoenix Bank, 8 N. Y.

228,
CONTRACTS OF INFANTS 509

upon a lease made during infancy will be held to have
ratified it,! and a tenant who continues in possession of
lands under a lease made during his infancy will be bound
thereby, and will be liable for rent in arrears.? So, an
infant partner who continues to act as such after majority
will be held to have ratified the contract of partnership,’
and an infant servant who continues in the service after
coming of age will of course be held to have ratified the
contract of employment.

573. Infant Must Ratify or Avoid in Toto.

It is often said that the infant must ratify or avoid
his voidable contract in toto. But this is not quite true,
for where one recently an infant, is not under obligation
to return or relinquish what he got under the contract,
he can ratify as to part and avoid as to part. Thus, he
may agree to pay part of a debt contracted during infancy
and repudiate as to the rest.4 What is really meant
when it is said that ratification or avoidance must. be in
toto is that he cannot avoid his own obligation under
the contract and retain its fruits under rules previously
laid down,? or disaffirm on his part and still insist upon a
performance by the other party. Thus, if he buys prop-
erty he cannot avoid his note or mortgage for the price
and retain the property, if it is still in his hands,* nor
can he ratify a lease to himself and avoid his covenant
to pay rent.’

1 Ashfield v. Ashfield, Sir W. Jones, 157; Smith v. Low, 1 Ark. 489,
Van Doren »v. Everett, 5 N. J. Law, 528.

2 Evelyn v. Chichester, 3 Burr. 1719; Cheshire v. Barrett, 4 McCord
L. (S. Car.) 241, 17 Am. D. 735; Baxter ». Bush, 29 Vt. 465, 70 Am. D.
429.

2 Bixler v. Kresge, 169 Pa. 405, 47 Am. St. R. 920.

4-Peacock v. Binder, 57 N. J. L. 374.

5 See ante, secs. 565, 566.

6 See ante, sec. 565; Heath v. West, 28 N. H. 101; Callis ». Day,.38
Wis. 643; Hubbard ». Cummings, 1 Me. 11; Lemmon v. Beeman, 45
Ohio St. 505.

7 Buchanan v. Hibbard, 119 Ind. 187.
510 CONTRACTS OF INFANTS

574. Further as to What Constitutes Rescission.

Wherever the infant is required to rescind affirmatively,
it is enough that he makes his intention clear either by
words or conduct, which, fairly interpreted, leave no
reasonable doubt of his intention to disaffirm. This rule
applies both to his simple contracts and to his deeds,
including his conveyances of land.! Thus, an action
brought after full age to recover property sold during
infancy is clearly a rescission.” So, if one during infancy
has sold, leased or mortgaged his property, real or per-
sonal, he will be deemed to have rescinded if, after ma-
jority, he grants a conflicting interest to a third person,’
or ratifies such a grant made during infancy.*

PARTICULAR CONTRACTS AND TRANSACTIONS

575. Infants as Partners.

An infant’s executory contract of partnership is void-
able under ordinary rules. If he has actually entered
into the firm he has all the rights and powers of a partner,®
but he may withdraw at any time without liability to
his copartners for so doing or for contribution,’ and
may even repudiate the firm debts, so far as any personal
liability is concerned, even though the firm creditors
acted without knowledge of his infancy.7? But if he has
permitted himself to be held out as a partner, he should
give notice of disaffirmance promptly upon coming of
age, otherwise he may be held liable for firm debts after-
ward contracted in favor of third parties who knew of

1 Roberts v. Wiggin, 1 N. H. 73, 8 Am. D. 38; Dixon v. Merritt, 21
Minn. 196, and cases cited below; post, sec. 584, and cases cited.

2 Craig ». Van Bebber, 100 Mo. 584, 18 Am. St. R. 569.

3 See post, sec. 584.

4Chapin v. Shafer, 49 N. Y. 407; Mustard ». Wohlford, 15 Gratt.
(Va.) 329, 76 Am. D. 209.

5 Bush v. Linthicum, 59 Md. 344.

6 Neal v. Berry, 86 Me. 193.

7 Dunton v. Brown, 31 Mich. 182; Bush », Linthicum, 59 Md. 344;
Folds v, Allardt, 35 Minn. 488.
CONTRACTS OF INFANTS 511

his membership, but not of his retirement from the firm.!
But though an infant partner may rescind the partner-
ship contract at any time,? it is held that his interest in
the firm remains liable until its debts are paid,’ nor can
he repudiate the partnership and hold the adult partner,
in the absence of fraud, for his investment, or for the
value of his services in carrying on the firm’s business
upon the theory of an implied contract to pay for them.'
It has even been denied, in the absence of fraud, that an
infant partner can withdraw after enjoying the privileges
of a partner and recover a premium paid his copartners
for admission to the firm.®

576. Infant Stockholders in Corporations.

An infant’s subscription for stock in a corporation is
voidable. While it renders him a stockholder and en-
titles him to be treated as such so long as he chooses to
abide by his subscription contract, he may repudiate it
at any time during infancy or within a reasonable time
thereafter and recover the money paid,® and will not be
liable to the corporation for calls previously or subse-
quently made on account of the shares, either to the
corporation or, it seems, to its creditors.’

577. Infant’s Submission to Arbitration.
An infant’s agreement to submit to arbitration is

1 Goode v. Harrison, 5 B. & Ald. 49; King v. Barbour, 70 Ind. 35.

2 See, however, Bush v. Linthicum, supra; Bunton ». Brown, supra.

3 Lovell ». Beauchamp (1894), App. Cas. 607; Bush v. Linthicum,
supra; Shirk v. Shultz, 113 Ind. 571; Pelletier ». Couture, 148 Mass.
269, 1 L. R. A. 863; Gay v. Johnson, 32 N. H. 167.

4 Page v. Morse, 128 Mass. 99; Moley v. Brine, 120 Mass. 324.

5 Adams ». Beall, 67 Md. 53, 1 Am. St. R. 379. Contra, Sparman »v.
Keim, 83 N. Y. 245.

6 Wuller v. Chase Grocery Co., 241 Ill. 398, 182 Am. St. R. 216.:

7 See Indianapolis Chair Mfg. Co. v. Wilcox, 59 Ind. 429; White ».
New Bedford Cotton Waste Corp., 178 Mass. 20. There are few cases
on infant stockholders in this country. For numerous and somewhat
conflicting English decisions see 18 Am. St. R. 615, and note; Wood-
ruff’s Cases on Dom. Rel. 331.
512 CONTRACTS OF INFANTS

voidable like his other contracts, and it makes no differ-
ence that. the basis for the submission was a tort for
which he was, or may have been, legally liable. An award
made during infancy, therefore, does not bind the infant
unless, perhaps, he ratifies it after full age.! Submission
under statutes or rules and orders of court have in some
states been held binding.’

The power of a guardian to submit his ward’s disputes
to arbitration is discussed in another place.’

578. Written Securities Executed by Infants.

The bills, notes, bonds and other written obligations
of an infant follow the same general rule as his other con-
tracts, and are voidable, at least, unless given for neces-
saries, or in settlement of some other debt or claim for
which he is legally bound.?’ Even where they are given
for necessaries, many courts deny a recovery on the
infant’s bond with penalty,’ upon his account stated,®
or upon his negotiable bill or note,’ in the absence of a
ratification after full age. The ground of these decisions
appears to be that the form of the obligation precludes
inquiry into the true value of the consideration. Other
courts permit the original payee of a negotiable instru-
ment given for necessaries to recover in a suit thereon

1 Hanks v. Deal, 3 McCord (8. Car.), 257; Baker v». Lovett, 6 Mass.
78, 4 Am. D. 88; Chambers v. Ker, 6 Tex. Civ. App. 373; Jones ».
Payne, 41 Ga. 23; Palmer v. Davis, 28 N. Y. 242; Millsaps v. Estes, 137
N. Car. 535, 107 Am. St. R. 496, 70 L. R. A. 170, and notes thereto on
the general subject of arbitration by infants.

270 L. R. A. 175, and note.

3 See post, sec. 761.

4 Hasting v. Dollarhide, 24 Cal. 195; Nightingale ». Withington, 15
Mass. 272, 8 Am. D. 101.

51 Pars. on Contr. 313, and authorities cited.

6 Trueman v. Hurst, 1 T. R. 40; Bartlett ». Emery, 1 T. R. 42;
Fenton v. White, 1 South. (N. J.) 100.

7 In re Soltykoff, 1 Q. B. (1890) 114; Henderson v. Fox, 5 Ind. 489;
Ayers ». Burns, 87 Ind. 245, 44 Am. R. 759; Price v. Sanders, 60 Ind.
310; Swasey v. Vanderheyden, 10 Johns. (N. Y.) 33; Morton v. Steward,
5 Il. App. 533.
CONTRACTS OF INFANTS 513

the true value of the necessaries supplied, but deny this
right to a bona fide holder for value.! But by the better
- rule, and the one that probably prevails at the present
time, the bona fide holder takes all the rights of the payee
against the infant and-may recover to the same extent,’
and there seems to be no good reason at the present day
why the mere form of an infant’s obligation, whether
negotiable or not, should preclude a recovery, whether by
the original creditor or his assignee, for the value of
necessaries actually supplied him.*

While an infant is not bound by his contract of endorse-
ment, still his endorsement or other legal transfer of
commercial paper passes title until he avoids it,‘ and it
seems that a bona fide purchaser in the meantime has
absolute title, at least under the uniform negotiable
instruments law adopted in the majority of our states.®

Doubtless where an infant’s note for necessaries is
binding upon him to the extent of their value, his note
given for a tort would bind him to the extent of the dam-
ages that might have been actually recovered against him
in an action ex delicto.®

1 Farle v. Reed, 10 Met. (Mass.) 387; Bradley v. Pratt, 23 Vt. 378;
Dubose ». Whedden, 4 McCord (S. Car.), 221. See Conn. ». Coburn,
7 N. H. 368, 26 Am. D. 746.

? 1 Daniel, Neg. Inst. (4th Ed.), 226.

3 See Conn ». Coburn, 7 N. H. 368, 26 Am. D. 746.

4 Nightingale ». Withington, 15 Mass. 272, 8 Am. D. 101; Hastings
v. Dallarhide, 24 Cal. 195; Hardy v. Waters, 38 Me. 450.

5 See New York Neg. Inst. Act, sec. 41; Nightingale 1. Withington,
supra.

6 Ray v. Tubbs, 50 Vt. 688, 28 Am. R. 519,
CHAPTER XLV
CONVEYANCES OF REAL PROPERTY BY AND TO INFANTS

579. Whether Conveyance by Infants Voidable or
Void.

It is generally held that an infant’s conveyance of his
real property, whether absolutely or by way of mortgage,
is voidable merely and not void, and passes the title
subject to his privilege of avoidance upon reaching full
age.!

The infant’s deed is none the less voidable at law though
he represented himself to the grantee as of full age.? In
equity, however, it is sometimes held that an infant
cannot rescind his deed where the grantee was actually
deceived by his positive misrepresentation as to age.®
But he is not estopped even in equity by mere failure
to disclose his infancy, though the grantee is deceived by
his apparent maturity.*

In a few states statutes provide that an infant cannot
disaffirm, at least without restoring the consideration,

. ‘Irvine v. Irvine, 9 Wall. (U. §.) 617; Tucker v. Moreland, 10 Pet.
(U. S.) 58; Dolph ». Hand, 156 Pa. 91, 36 Am. St. R. 25; Keil ».
Healey, 84 Ill. 104, 25 Am. R. 484; Green v. Green, 69 N. Y. 553, 25
Am. R. 233; Schroch ». Crowl, 83 Ind. 243; Walton ». Gaines, 94 Tenn.
420. A few cases hold an infant’s conveyance absolutely void if made
without consideration or for a merely nominal one, on the ground that
it is clearly to his prejudice. Robinson v. Coulter, 90 Tenn. 705, 25
Am. St. R. 708, and cases cited.

? Sims v. Everhardt, 102 U. 8. 300; Weiland ». Koblick, 110 Ill. 16,
51 Am. R. 676, and cases cited. And see post, secs. 596, 597, and cases
cited.

* Pemberton Bldg. Assn. ». Adams, 53 N. J. Eq. 258; Ryan 2.
Growney, 125 Mo. 474.

4 Thormaehlen v. Kaeppel, 86 Wis. 378.

514
CONVEYANCES BY AND TO INFANTS 515

where his fraudulent representations as to age have
misled the other party.'

580. When May Disaffirm.

Though the infant may usually disaffirm his voidable
contracts before he comes of age,? his deeds of land form
an exception to the rule, and he cannot disaffirm them
in the absence of statute until majority.2 The reasons
given for this rule are various, but the most cogent
probably rests upon the fixed and permanent character
of real property as distinguished from personalty, and
the impossibility, in many cases, of following and recov-
ering the latter or its value, if the infant could not rescind
until full age.

But though an infant cannot avoid his deed during
minority, it seems that he may enter and take the profits
in the meantime without prejudice to his right to dis-
affirm after majority.‘

581. Avoidance as Against Bona Fide Purchasers.

The infant’s right of avoidance is given him for his
protection against inexperience and improvidence, and
‘is deemed superior to the rights even of bona fide pur-
chasers for value from his own or any subsequent grantee.°

1 Towa Code, 1897, sec. 3190; Burns, Rev. Stat. Ind. 1901, sec. 3365;
Kan. Gen. Stat. 1901, sec. 4184; Utah Rev. Stat. 1898, sec. 1543;
Wash. Ann. Code & Stat. 1897, sec. 4582.

2 See ante, sec. 558.

3 Zouch v. Parsons, 3 Burr. 1794, 1808; Sims v. Everhardt, 102 U. 8S.
300; Irvine v. Irvine, 5 Minn. 61; Walch ». Bunce, 83 Ind. 382; Rice
v. Boyer, 108 Ind. 472, 58 Am. R. 53; Bool v. Mix, 17 Wend. (N. Y.)
119, 31 Am. D. 285. Statutes in some of the western states give a right
of disaffirmance during minority. See Harrod v. Myers, 21 Ark. 592,
76 Am. D. 409.

4 Bool ». Mix, supra; Harrod v. Myers, supra. But see Shipley v.
Bunn, 125 Mo. 445.

’ Mustard ». Wohlford, 15 Gratt. (Va.) 329, 76. Am. D. 209; Bu-
chanan v. Hubbard, 96 Ind. 1; Lacy ». Pixler, 120 Mo. 383; Searcy
v. Hunter, 81 Tex. 644, 26 Am. St. R. 837.
516 CONVEYANCES BY AND TO INFANTS

582. Period Allowed for Avoidance—Who May Avoid.

By many authorities an infant may avoid his convey-
ance of land after he comes of age at any time within the
period fixed by the statute of limitations for the recovery
of land, unless there has, in the meantime, been some-
thing on his part after majority beyond mere silence
or inertness—something in fact that amounts to an
affirmance or an estoppel.! Thus, standing by after
majority and seeing valuable improvements made upon
the land without notice of disaffrmance would ordi-
narily be held an estoppel.? Receiving the consideration,
or even retaining and using it after majority, would
ordinarily constitute an affirmance.*

Many courts hold that the infant’s conveyance follows
the same rule as his contracts generally, and must be
disaffirmed within a reasonable time after majority.‘
In some states the period of disaffirmance is fixed by
statute,’ but generally what is a reasonable time for
disaffirmance depends upon the facts and circumstances
of the particular case.* Generally the privilege of dis-
affirmance is personal to the minor, and cannot be exer-
cised save by him or his privies in blood.’ If the infant
dies, his heirs may disaffirm within the same time he

1 Sims v. Everhardt, 102 U. 8. 300, 312; Lacy v. Pixler, 120 Mo. 383;
Donovan v. Ward, 100 Mich. 601; Fox v. Drewey, 62 Ark. 316; Hill 2.
Nelms, 86 Ala. 442; Birch v. Linton, 78 Va. 584, 49 Am. R. 381; Prout
v. Wiley, 28 Mich. 164, 167.

2 Irvine v. Irvine, 9 Wall. (U. 8.) 617; Prout ». Wiley, supra.

3 Am. Freehold, etc., Co. ». Dykes, 111 Ala. 178, 56 Am. St. R. 38.

‘Goodenow v. Empire Lumber Co., 31 Minn. 468, 47 Am. R. 798,
citing many cases; Thormaehlen v. Kaeppel, 86 Wis. 378.

5See statutes in California, Iowa, Idaho, Utah, Washington and
the Dakotas. See Kiel v. Healey, 84 Ill. 104, 25 Am. R. 434.

*Goodenow v. Empire Lumber Co., supra; Thormaehlen ». Kaeppel,
supra; Bentley v. Greer, 100 Ga. 35; Englebert ». Troxell, 40 Neb. 195,
26 L. R. A. 177, 42 Am. St. R. 665. See note to Craig ». Van Bebber,
in 18 Am. St. R. 675, 677.

7 See ante, sec. 559; Mansfield ». Gordon, 144 Mass. 168; Bozeman
vy. Browning, 31 Ark, 364; Walton », Gaines, 94 Tenn. 420,
CONVEYANCES BY AND TO INVANTS 517

might have done so had he lived.' If he becomes insane
or otherwise incompetent his guardian may disaffirm for
him.?

583. Duty of Infant to Restore Consideration on
Disaffirmance.

The general rules bearing upon the duty of infants
to return the consideration for their contracts upon dis-
affirmance have been already discussed. The rules stated
there apply here, leaving nothing important that has not
been already noticed.’

584. What Constitutes Disaffirmance.

While mere inaction for more than a reasonable time
may amount to affirmance, disafirmance of an infant’s
conveyance can only arise from some act or declaration
on the part of the quondam infant showing an inten-
tion to disaffirm. Bringing ejectment for the land con-
veyed, or filing a bill to cancel the conveyance, or an ex-
press notice of disaffirmance, are severally sufficient.‘
An absolute conveyance to another person after majority
is usually regarded as a disaffirmance of a conveyance
made during minority.» But a mortgage given during
minority is not disaffirmed by giving another mortgage
after full age,* nor is a prior deed or mortgage disaffirmed
by a quitclaim as distinguished from a warranty deed.’

1 Sayles v. Christie, 187 Ill. 420; Bozeman v. Browning, supra.

2 Chandler v. Simmons, 97 Mass. 508, 510, 98 Am. D. 117, and note.

3 See ante, secs. 564 et seq.; Carpenter v. Carpenter, 45 Ind. 142.

4 Tucker v. Moreland, 10 Pet. (U. §.) 58; Irvine ». Irvine, 9 Wall.
(U. 8.) 617, 627, 628.

® Tucker v. Moreland, supra; Harrod ». Myers, 21 Ark. 592, 600, 76
Am. D. 409; Tunison ». Chamberlain, 88 Ill. 378, 386; Englebert v.
Troxell, 40 Neb. 195, 42 Am. St. R. 665, 26 L. R. A. 177.

6 Palmer v. Miller, 25 Barb. (N. Y.) 399; Buchanan v. Griggs, 18
Neb. 121; McGan v. Marshall, 7 Humph. (Tenn.) 121.

7 Shreeves v. Caldwell, 135 Mich. 323, 106 Am. St. R. 396; Dixon ».
Merritt, 21 Minn. 196; Scott v. Brown, 106 Ala. 604; Singer Mfg. Co.
e. Lamb, 81 Mo. 321.

ag
518 CONVEYANCES BY AND TO INFANTS

685. How Infant’s Lands Validly Conveyed or En-
cumbered.

The support and education of the minor, the rights of
his creditors, or the preservation of his estate, may
sometimes require that his lands be sold or encumbered.
It is clear that this cannot be done by the infant’s own
act, for the deed or mortgage would be subject to his
right of repudiation on coming of age. A valid sale or
mortgage of an infant’s lands can therefore be effected,
as arule, only by his guardian, and usually as the result of
special proceedings in court, considered under the title
“Guardian and Ward.’’}

586. Conveyance to an Infant.

A conveyance of real property to an infant vests the
title in him subject to his right to repudiate the transac-
tion and recover the consideration upon reaching majority,
or within a reasonable time thereafter.”

The retention of possession for an unreasonable time
after full age will be a ratification, and will preclude
recovery of the consideration paid.* Clearly the per-
formance of affirmative acts of ownership, such as leasing,
mortgaging or selling after majority, will have the same
effect.*

587. Estoppel of Infants.

It is frequently laid down that the doctrine of estoppel
in pais is inapplicable to infants, and this is doubtless a
correct statement of the prevailing rule so far as acts,
representations or omissions of the infant during infancy
are concerned, at least where the result would be to
charge him as upon his contract or grant through the

1 See post, secs. 751, 757 et seq.

* McCarty v. Iron Co., 92 Ala. 463, 12 L. R. A. 136, and note;
Baker v. Kennett, 54 Mo. 82.

* See ante, sec. 571; Henry v. Root, 33 N. Y. 526; Baker ». Kennett,
supra.

4 Uecker». Koehn, 21 Neb. 559, 59 Am. R. 849; Langdon». Slayers
75 Mich. 204; Wild v. Beebe, 21 Vt. 495.
CONVEYANCES BY AND TO INFANTS 519

indirect medium of an estoppel.' But where an infant
owner independently of contract induces another to
buy property by representing, expressly or by failure to
speak when it is his duty to do so, that the title is in
another, he will be estopped from asserting title as
against such purchaser, at least where he had reached
years of discretion.” An infant, however, is not estopped
by his deed or by any recital or covenant therein.®
Estoppel of infants by record is elsewhere discussed.‘

1 Sims v. Everhardt, 102 U. S. 300; O'Dell v. Rogers, 44 Wis. 136;
Gillespie v. Nabors, 59 Ala. 441, 31 Am. R. 20; Lackman ». Wood, 25
Cal. 147; Montgomery ». Gordon, 51 Ala. 377. Compare Commander
v. Brazile, 88 Miss. 668, and cases cited in note thereto in 9 L. R. A.
(N. 8.) 1117; post, sec. 598.

2See Bisph. Eq. (8th Ed.), sec. 293, and cases cited; Bigelow’s
Estoppel (5th Ed.), 606 et seq.; Ferguson v. Bobo, 54 Miss. 121; post,
sec. 598.

3 Wilson’s Guard v. Wilson, 20 Ky. Law, 1971. Compare Damron
v. Com., 110 Ky. 268, 96 Am. St. R. 453.

+ See post, sec. 620.
CHAPTER XLVI
APPRENTICESHIP OF INFANTS

588. In General.

In popular usage an apprentice is any person who is
learning a trade or calling under the direction or in the
employ of another, whether he receives wages or not, and
whether his master or employer stands toward him in
loco parentis or not.

In modern law, however, an apprentice is one, usually
an infant, who is bound to serve a particular master
while learning some trade, calling or profession in which
the latter is bound to instruct him.

Apprenticeship, both in England and in most of our
states, may be divided into two classes, (1) voluntary
and (2) compulsory.

Voluntary apprenticeship implies volition upon the
part of the apprentice or on the part of his parent or
guardian, if any, or on the part of both the apprentice
and his parent or guardian.

Compulsory apprenticeship, on the other hand is, in
England and most of our states, a feature of the poor
laws, under which the overseers of the poor or other
designated public authorities may, upon application to
the proper court or magistrate, bind out poor and depend-
ent infants as apprentices upon terms and conditions
prescribed by statute.’

1 See Cent. Dict. The origin and older and modern English law and
practice of apprenticeship is discussed in Encyclopedia Brittanica,
title Apprentices,” and in Dwight’s Pers. & Pers. Prop. 315.

? Juvenile asylums, orphan asylums and reformatories may bind out
inmates as apprentices when authorized by statute, even to masters
outside the state. Matter of Forsyth, 59 N. Y. 629.

520
APPRENTICESHIP OF INFANTS 621

An examination of the current digests and reports will
indicate that technical apprenticeship has fallen largely
into disuse, being confined in practice principally to the
administration of the poor laws in the care of orphan,
indigent and abandoned children. On this account, and
because many of the decisions are of mere local applica-
tion under differing statutes, no attempt will be made
to discuss the subject of apprenticeship in detail.!

589. How Entered Into.

While apprenticeship was known to the common law,
under which the binding out was required to be by deed,?
it is now regulated by statute in most states, and the bind-
ing out of infants is generally required to be by inden-
ture under seal in which the infant must join if the ap-
prenticeship be voluntary. Failure to comply with the
statutory terms renders the indenture void in some
states, and in others voidable.* It should be observed,
however, that indentures of apprenticeship are not bind-
ing on an infant in the sense that a breach of them on
his part will subject him to an action for damages,‘
though an action will lie against his parent or guardian
for breach by the infant so far as the covenants of the
indenture purport to bind them for his defaults.®

590. Authority and Right of Master.

The right of the master to the custody and services of
the apprentice, even against the father, is undoubted,
and he may ‘sue third persons who interfere with his
custody by enticing or harboring the apprentice, or who,

1 Apprenticeship will be found quite thoroughly discussed in
Dwight’s Pers. & Pers. Prop. 315 et seq.

21 BL. Comm. 226; Reeve’s Dom. Rel. 341.

3 Dwight’s Pers. & Pers. Prop. 319.

4 Lobdell v. Allen, 9 Gray (Mass.), 377; McKnight ». Hogg, 3 Brev.
(S. Car.) 44. Contra, Woodruff ». Logan, 6 Ark. 276, 42 Am. D. 695.
See also Pardy v. Am. Ship Windlass Co., 20 R. I. 147, 78 Am. St. R.
844.
5 Mead ». Billings, 10 Johns. (N. Y.) 99.
522 APPRENTICESHIP OF INFANTS

by inflicting personal injuries, or by the seduction of a
female apprentice, cause the master a loss of service.

If the apprentice abandons his master or absconds,
statutes in many states provide a remedy by his arrest
and detention.

The master stands toward the apprentice substantially
in. loco parentis, and has practically the same right to
control and chastise him that the parent has, being liable
civilly, however, as well as criminally, for wantonness or
excess. !

Generally the master has no right to remove the ap-
prentice and require him to serve out of the state, unless
the contract or the nature of the service contemplates
such removal, or the parent and the apprentice consents.’

Subject to certain exceptions, the master is entitled to
the services, and hence to the earnings, of his lawful
apprentice, not only in his own business, but in any other
occupation in which the apprentice may engage without
the master’s consent. Even though the indentures be
defective, if performance has been had on both sides, the
apprentice cannot recover for the value of his services.®

591. Duties of the Master.

The master is bound by all the covenants on his part
contained in the indenture. He stands substantially
in loco parentis toward the apprentice, and is bound by
substantially the same obligations as a father, unless it

1See ante, sec. 484; State ». Dickerson, 98 N. Car. 708; Creech ».
Creech, 98 N. Car. 155; Vinalhaven ». Ames, 32 Me. 299.

Com. v. Deacon, 6 Serg. & R. (Pa.) 526; Vickerie v. Pierce, 12 Me.
815; Walters 7. Morrow, 1 Houst. (Del.) 527.

3 See Lobdell v. Allen, 9 Gray (Mass.), 377; Burden v. Skinner, 3
Day (Conn.), 126.

4 Bailey ». King, 1 Whart. (Pa.) 118, 29 Am. D. 42. As to extraor-
dinary services see Kelley ». Sprout, 97 Mass. 169; Mason ». Ship
Blaireau, 2.Cranch (U. S.), 177.

§ Maltby ». Harwood, 12 Barb. (N. Y.) 473; Ford ». McVay, 55
Ill. 119; Page v. Marsh, 36 N. H. 305. Contra, Hunsucker ». Elmore,
54 Ind. 209.
APPRENTICESHIP OF INFANTS 523

is otherwise provided. He must support the apprentice
in sickness and health.1 Furthermore, he must use
reasonable diligence to instruct the apprentice in the
whole of the trade, profession or calling specified in the
indentures, and his neglect to do so is a breach of his
covenant.’

592. Assignment of Indentures—Termination of Re-
lation.

Generally indentures of apprenticeship are not assign-
able in the absence of statute, as the relation of the master
to the apprentice is one of personal trust,? though an
assignment may be good as between the assignor and
assignee. In the absence of statute the apprenticeship
may be dissolved by mutual consent.’ It is likewise
dissolved, or at least rendered voidable, by the death of
the master,® or by such serious misconduct of the master
that the apprentice may reasonably be deemed justified
in leaving. Methods and grounds of discharge are in
some states provided for by statute.

1 Easley v. Craddock, 4 Rand. (Va.) 423; Daden v. Farwell, 98 Mass.
137; Wright v. Tuttle, 4 Day (Conn.), 313.

2 Ellen v. Topp, 6 Exch. 424; Bell v. Walker, 3 Jones (N. Car.), 320;
Warner v. Smith, 8 Conn. 14; Barger v. Caldwell, 2 Dana (Ky.), 132;
Wright ». Brown, 5 Md. 37. Where the binding is without indentures
but by order of court, the duty of the master is to teach according to
the terms of the order. Adams». Miller, 1 Cranch C. C. 5.

3 Kelley v. Sprout, 97 Mass. 169, and cases cited.

4See Dwight’s Pers. & Pers..Prop. 221.

5 Wood’s Master & Servant (2d Ed.), 88.

® Cochrane v. Davis, 5 Litt. (Ky.) 118.
CHAPTER XLVII

TORTS BY AND AGAINST INFANTS

593. Liability for Pure Torts—General Rule.

In the case of contracts, non-liability of infants is
the rule and liability the exception, while in the case of
torts the reverse is true, and it is laid down by courts
and text writers that an infant of whatever age is liable
in general for his torts the same as an adult.1_ The reasons
for this distinction between tort and contract have prob-
ably never been adequately explained, even if capable of
explanation upon any strictly logical basis.2 Like most
other general rules, however, it is subject to some real
or seeming exceptions which, together with the main
rule, will now be discussed.

Where the act for which the infant is sought to be
charged is a pure tort, he is liable by all authorities to
the same extent as an adult. Thus, a child of six was
held liable for tresspass in entering upon plaintiff’s prem- |
ises and destroying shrubbery and flowers.? So, an in-
fant was held liable for a battery even though the injury
to the plaintiff was unintentional, as where the plaintiff
was injured by a stone thrown at another person. An

1 Cooley on Torts (2d Ed.), 120, and cases cited; 2 Kent’s Comm. 241.

2Tt may be suggested that in true contact the mental capacity to
assent or agree in fact is an accepted criterion of liability. In tort,
however, with some exceptions, intention is not the test, and frequent
appeal is made to the principle that as between two persons equally
innocent, the loss should fall on him who occasioned it. See and com-
pare as to the torts of the insane, post, sec. 655. See Holmes’ The
Common Law, 109.

§ Hutching v. Engel, 17 Wis. 230, 84 Am. D. 741, and cases cited;
Scott ». Watson, 46 Me. 362, 74 Am. D. 457.

‘Peterson v. Haffner, 59 Ind. 130, 26 Am. R. 81, and note.

524
TORTS BY AND AGAINST INFANTS 525

infant lessee was held liable for carrying away and con-
verting to his own use crops to which he was not entitled,
and an infant employé for embezzling his employer’s
property intrusted to his care.? In fact, for any direct
and forcible injury to person or property of another the
infant is responsible.* It makes no difference, as a rule,
that the infant acted by the authority or direction of
another, even though that other was its parent. But
the injury need not in all cases be direct or accomplished
by force. Thus, the infant owner or occupant of land is
liable for a nuisance maintained thereon, or for damages
due to the unsafe condition thereof.® An infant is liable
for seduction under the same circumstances as an adult.®

594. Negligence of Infants.

An infant is liable for his negligence, but whether he
is guilty of negligence or not must depend upon his age
and consequent ability to observe care, and an infant
who has not reached the age of discretion, at least, will
never be liable for this species of wrong unless he was
wanting in that care and circumspection which should
reasonably be demanded of one of his years.’ The appli-
cation of this and other principles to the contributory
negligence of infants is later discussed.®

1 Baxter v. Bush, 29 Vt. 465, 70 Am. D. 429.

2 Peigne v. Sutclife, 4 McCord (S. Car.), 387, 17 Am. D. 756.

3 Reeve’s Dom. Rel. 258; Vosburg v. Putney, 80 Wis. 523, 27 Am. St.
R. 47, 14 L. R. A. 226, and note; Humphrey v. Douglas, 10 Vt. 71, 33
Am. D. 177.

4 Cooley on Torts (2d Ed.), 122, and cases cited; Smith ». Kron, 96
N. Car. 392; O’Leary ». Brooks, 7 N. Dak. 554, 41 L. R. A. 677; Scott
». Watson, 46 Me. 362, 74 Am. D. 457.

5 McCabe v. O’Connor, 4 N. Y. App. Div. 354; Cooley on Torts
(2d Ed.), 122.

® Becker ». Mason, 93 Mich. 336; Fry v. Leslie, 87 Va. 269; Hamilton
». Lomax, 26 Barb. (N. Y.) 615.

7See Cooley on Torts (2d Ed.), 122. See and compare Neal ».
Gillette, 23 Conn. 437; Williams ». Hayes, 143 N. Y, 442, 42 Am. St. R.
743, and note, 26 L. R. A. 153, and note, :

8 See post, sec, 605,
526 TORTS BY AND AGAINST INFANTS

595. Torts in Which Malice Is an Element.

In torts in which malice is an essential element, as in
slander, it is doubtful whether an infant of very tender
years could be held liable. But the question is scarcely
a practical one, for one could hardly receive damage
from the prattle of a child. In other cases, however,
the infant is responsible for the effect of his words, though
his youth may doubtless be shown as bearing upon the
credence they probably received and the consequent in-
jury they produced.'

596. Torts Involved or Connected with Contracts.

An act or omission may, under certain circumstances,
be treated either as a tort or a breach of contract at the
option of the plaintiff. But how far this right of election
exists where the defendant is an infant has given rise to
much discussion and difference of opinion. The general
rule, however, undoubtedly is, that where the defendant
is an infant he cannot be held liable in an action of tort,
if to so hold him would amount to the virtual enforce-
ment of a contract against him. Thus, an infant is not
liable in an action of deceit for giving a false warranty
in the sale of goods,? or for simple disobedience of orders
under a contract of employment.? An infant has even
been held not liable for negligent conduct under a contract
to thresh grain whereby it was set fire to and destroyed,
since the gravamen of the action was an injury that could
only be made out by proving the contract and showing
negligence in its performance.*

1 Jennings v. Rundall, 8 T. R. 335, 337; Defries ». Davies, 3 Dowl.
629; Fears v. Riley, 148 Mo. 49; Pauley v. Drain, 8 Ky. L. 530.

2 Grove v. Neville, 1 Keb. 778; Morrill ». Aden, 19 Vt. 505; Gilson v.
Spear, 38 Vt. 811, 88 Am. D. 659. Contra, Wood ». Vance, INL &
McC. (8. Car.) 197, 9 Am. D. 683.

3 Vasse v. Smith, 6 Cranch (U. 8.), 226.

‘ Lowery v. Cate, 108 Tenn. 54, 91 Am. St. R. 744, 57 L. R. A. 673,
and note collecting the authorities on torts of infants connected with
contract,
a

TORTS BY AND AGAINST INFANTS 527

597. Same—Fraud in Inducing Contract.

If an infant, independent of any contract with himself,
has by his positive fraud induced another to part with
money or property, he will be liable in damages as for
any other tort.! But where the infant, by fraudulently
representing himself of age, or by other fraudulent means,
induces another to enter into a contract with him, the
courts are not agreed as to whether he can be held liable
therefor in damages in an action of deceit. There is a
distinction, however, between suing the infant for deceit
on the basis of his misrepresentation, and avoiding the
contract for that cause, and there is little doubt that a
contract induced by the infant’s fraud may be avoided
by the adult, who may then recover in specie whatever
the infant acquired under it and which was still in his
possession at the time of the rescission, or its value if he
disposes of it after the adult has given notice of avoid-
ance.? In fact some courts broadly hold that the infant
who induces a contract with himself by falsely represent-
ing that he is of full age, is liable for damage in an action
of trover or deceit for the value of the consideration
obtained, even though it is no longer in his possession.’
The older and many of the modern cases, however, sup-

: Bristow v. Eastman, 1 Esp. 172; Catts ». Phalen, 2 How. (U. 8.)
376; Mathews v. Cowan, 59 Ill. 341; Ashlock v. Vivell, 29 Ill. App. 388.

2 Badger v. Phinney, 15 Mass. 359, 8 Am. D. 105; Nolan ». Jones,
53 Ia. 387; Robinson »v. Berry, 93 Me. 320; Neff v. Landis, 110 Pa.
204; Fitts +. Hall, 9 N. H. 441. In Lampriere v. Lange, 12 Ch. D. 675,
an infant obtained a lease of a furnished house by falsely representing
himself as responsible and of full age. The lease was declared void,
and the infant enjoined from dealing with the furniture, though his
liability for use and occupation was denied. As to the: right of the
plaintiff to sue in assumpsit in such cases, see ante, sec. 542.

3 Fitts v. Hall, 9 N. H. 441; Burley v. Russell, 10 N. H. 184, 34 Am.
D. 146; Walker ». Davis, 1 Gray (Mass.), 506; Rice v. Boyer, 108 Ind.
472, 58 Am. R. 53. See also Ashlock ». Vivell, 29 Ill. App. 388. See
statutes in Iowa, Kansas, Utah, and Washington, providing that the
minor shall be bound where, by his fraudulent representations as to
age or by engaging in business, he has induced the other party to be-
lieve him competent.
528 TORTS BY AND AGAINST INFANTS

port a contrary rule, which is doubtless the prevailing one
in courts of law.1 In no case, however, would an infant
be liable for fraud through mere failure to disclose his
infancy at the time of contracting. There must be some-
thing beyond this in the nature of a false representation.’

598. Same—Infants’ Frauds in Equity—Estoppel.

A considerable number of cases hold that while an
infant is not bound at law, even where his false repre-
sentations induced the contract, he may be bound in
equity, to the extent, at least, that he will not be per-
mitted to invoke the aid of equity to cancel or set aside
his contract or conveyance, or recover what he has
parted with thereunder, to the injury of the other party
who was actually misled into dealing with him in the
belief that he was of full age. And it is generally held
that if an infant who has reached the age of discretion
has, by his positive misrepresentations or by silence
when it is his duty to speak, induced a party ignorant
of his title to purchase his (the infant’s) property from
another, he will be estopped from asserting such title.‘

599. Same—Infant Bailee.
An infant bailee is not liable for such injuries to prop-
erty bailed to him as are due to his simple negligence or

1 Johnson v. Pye, 1 Keb. 913, 1 Lev. 169; Price ». Hewitt, 8 Exch.
146; Miller v. Blankley, 38 L. T. (N. 8.) 272; Gilson v. Spear, 38 Vt. 311,
88 Am. D. 659; Slayton v. Berry, 175 Mass. 513, 78 Am. St. R. 510,
49 L. R. A. 560; Merriam ». Cunningham, 11 Cush. (Mass.) 40; Monu-
mental Bldg. Assn. v. Herman, 33 Md. 128; Studwell v. Shapter, 54
N. Y. 249.

* Cobbey v. Buchanan, 48 Neb. 391; Grauman, Marx & Kline Co.
v. Krienitz, 142 Wis. 556.

* Ex parte Unity, etc., Assn., 3 De Gex & J. 62; Ryan v. Growney,
125 Mo. 475; Hayes ». Parker, 41 N. J. Eq. 630; Ostrander ». Quin, 84
Miss. 230, 105 Am. St. R. 426; Ferguson v. Bobo, 54 Miss. 121; Kilgore
v. Jordan, 17 Tex. 341.

“Bigelow on Estoppel (5th Ed.), 106 et seq.; Savage ». Foster, 9
Mod. 35; Overton ». Banister, 3 Hare, 503; Stikeman ». Dawson, 1
De G. & S. 90; Ferguson v. Bobo, supra. See also Grauman, Marx &
Kline Co, », Krienitz, 142 Wis, 556, 560.
TORTS BY AND AGAINST INFANTS 529

ignorance.! But where he departs from the bailment
contract and inflicts a willful injury upon the bailed thing,
or puts it to a purpose unauthorized by the contract
and it is injured, he is liable in damages.’ Plainly the
infant bailee or other custodian of personalty is liable
if he sells without authority or is otherwise guilty of
positive acts of conversion,’ whether he is a technical
bailee or not. But where an infant is merely an agent
or custodian, damage resulting from his simple negligence
or disobedience of orders is held to be due to his breach
of contract rather than his tort and no liability results.®

600. Is Infant Liable for Torts of His Agents?

Though an infant’s appointment of an agent is in
many states absolutely void,*® there seems to be no satis-
factory reason why he should not be liable for such tor-
tious acts as he directly causes or procures others to
commit, and an infant has been held liable for procuring
another to commit an assault.’ But he is not liable for
such torts as his agents or servants commit by virtue of
an implied authority merely, or as an incident to their
general employment,’ nor does he become liable by
reason of his simple ratification of a tort which he neither
counseled nor directed.®

1 Jennings v. Randall, 8 T. R. 335; Freeman v. Boland, 14 R. I. 39,
51 Am. R. 340; Eaton v. Hill, 50 N. H. 235, 9 Am. R. 189; Philleo ».
Sanford, 17 Tex. 227, 67 Am. D. 654.

2 Burnard v. Haggis, 14 C. B. 45; Campbell v. Stakes, 2 Wend.
(N. Y.) 1387, 19 Am. D. 561; Freeman »v. Boland, supra; Homer ».
Thwing, 3 Pick. (Mass.) 492; Prescott ». Norris, 32 N. H. 103. But
see Wilts v. Welsh, 6 Watts (Pa.), 9; Penrose v. Curren, 3 Rawle (Pa.),
351, 24 Am. D. 356.

3 Peigne v. Sutclife, 4 McCord L. (S. Car.) 387, 17 Am. D. 756.

4 Vasse v. Smith, 6 Cranch (U. S.), 226; Homer v. Thwing, supra.

5 Vasse v. Smith, supra.

® See post, sec. 607.

7 Sikes v. Johnson, 16 Mass. 388.

® Robbins v. Mount, 33 How. Pr. (N. Y.) 24, 4 Robt. (N. Y.) 553.

®Burnham »v. Seaverns, 101 Mass. 360, 100 Am. D. 123, distin-
guishing Sterling ». Adams, 3 Day (Conn.), 411.

34
530 TORTS BY AND AGAINST INFANTS

601. Exemplary Damages Against Infants.

It is broadly stated that actual or compensatory
damages alone can be recovered against an infant,’ and
this rule must be universal where the infant is of tender
age. While it would seem on principle that an infant
should be liable for exemplary damages where he acts
deliberately and with malice, the authorities are probably
the other way.

TORTS AGAINST INFANTS

602. Liability of Third Parties to Infant for Torts.

For personal injuries to an infant we have seen that
two causes of action usually arise; one in favor of the
parent, which has already been discussed,? and another
and entirely independent one in favor of the infant,
which is for treatment here.

The independent nature of these two actions is illus-
trated by the fact that an unemancipated infant cannot
recover for past or prospective diminution of his earning
capacity during minority due to the defendant’s wrong,
for his services belong to the parent during the child’s
minority, who alone is entitled to recover them.?

The infant cannot, during infancy, compromise a
cause of action in his favor, whether it arise out of con-
tract or tort, and if he attempts to do so he may still
recover such sum beyond the amount actually received
under the compromise as the jury find to be a reasonable
satisfaction of the damages he actually sustained.‘

603. Same—Negligent Injuries.
In dealing with torts against infants, the questions

: Huchting v. Engel, 17 Wis. 230, 84 Am. D. 741.

* See ante, secs. 510 et seq.

* Peppercorn v. Black River Falls, 89 Wis. 38, 46 Am. St. R. 818;
Comer ». Ritter Lumber Co., 59 W. Va. 688, 6 L. R. A. (N. §.) 552, and
note.

* Pittsburg, etc., Ry. Co. ». Haley, 170 Ill. 610; Baker v. Lovett, 6
Mass. 78, 4 Am. D. 88. The power of a guardian to compromise
causes of action in favor of the ward is discussed post, sec. 761.
TORTS BY AND AGAINST INFANTS 531

that most frequently arise are those of negligence of the
defendant and the contributory negligence of the child.

In determining whether the defendant has been negli-
gent or not, it is but reasonable to exact a higher degree
of care if he were dealing with a child than with an adult.!

The rule that requires the master to instruct and warn
such servants as are unable, through inexperience or other
causes, to understand and appreciate the dangers of an
employment, applies with particular force where the
servant is an infant.”

604. Same—Injured Child a Trespasser.

Some authorities hold that one owes no duty to mere
trespassers, save to refrain from inflicting willful or wan-
ton harm.’ Others hold that one who has reason to
anticipate the presence of technical trespassers must
take reasonable precaution to prevent injury to them.‘
But whatever the general doctrine may be, it is widely
held that one who maintains dangerous implements or
appliances on his premises of a nature to attract chil-
dren at play, will be liable for injuries to them by reason
thereof, unless he takes reasonable precautions to ex-
clude or otherwise safeguard them, even though they are
trespassers.> Examples of this rule are numerous. Many

1 Binford v. Johnston, 82 Ind. 426, 42 Am. R. 508; Carter v. Towne,
98 Mass. 567, 96 Am. D. 682.

2 Thompson v. Edward P. Allis Co., 89 Wis. 523.

3 Klix v, Nieman, 68 Wis. 271, 60 Am. R. 854; Lamore v. Crown
Point Iron Co., 101 N. Y. 391, 54 Am. R. 718; Gay v. Essen Electric
St. R. Co., 159 Mass. 238, 38 Am. St. R. 415, 21 L. R. A. 448; Shea 2.
Gurney, 163 Mass. 184, 47 Am. St. R. 446; Delaware, etc., Ry. Co. ».
Reich, 61 N. J. L. 635, 68 Am. St. R. 727, 41 L. R. A. 831; Retz ».
Wheeling, 45 W. Va. 262, 43 L. R. A. 148.

4 Texas, etc., R. R. Co. v. O’Donnell, 58 Tex. 42; Woods 2. Trinity
Parish, 21 D. C. 540; Hutson v. King, 95 Ga. 271.

5 Sioux City, etc., Co. v. Stout, 17 Wall. (U. S.) 657, affirmed in
Union Pac. Ry. Co. ». McDonald, 152 U. 8. 262; Penso ». McCormick,
125 Ind. 116, 21 Am. St. R. 211, 9 L. R. A. 313; Bellefontaine, etc.,
R. Co. v. Snyder, 18 Ohio St. 399, 98 Am. D. 175; Kaffe v. Milwaukee,
532 TORTS BY AND AGAINST INFANTS

of the cases involve injuries by turntables left unlocked
and not otherwise safeguarded, where children are likely
to be attracted thereto in their play, and are hence known
as the turntable cases. Upon the same principle, it has
been held actionable negligence to leave a sandpit open
and unguarded where it was attractive to and frequented
by children.! No attempt to cite or discuss the con-
flicting cases involving this rule or its modifications will
be made here. It is enough to say that it is not univer-
sally recognized, and that the present tendency in some
states seems to be to limit or discard it.2, Even where the
rule is discarded, however, one who knows, or ought in
the exercise of reasonable diligence to know, of the pres-
ence of a child trespasser is doubtless bound to use rea-
sonable diligence to avoid injuring it.®

605. Contributory Negligence of Child.

A child suing for negligent injury is liable like the adult
to be met with the defense of contributory negligence.
But the law does not judge a child by the same stand-
ards as an adult, and what may be diligence in the
former, might be negligence in the latter. All that is
demanded of the child is that degree of care and prudence,
however inadequate when judged by adult standards,
that could reasonably be expected of a child of the plain-
tiff’s age, sex and physical and mental capacity,‘ and an

etc., Ry. Co., 21 Minn. 207, 18 Am. R. 393. See note to Barnes ».
Shreveport City R. R. Co., 49 Am. St. R. 417.

1 Fink v. Furnace Co., 10 Mo. App. 61.

* Walker’s Admrs. v. Potomac, etc., R. R. Co., 105 Va. 226, 115 Am. St.
R. 871; note to Pannill ». Potomac, etc., Ry. Co., 4 L. R. A. (N. 8S.)
80; Conrad ». Baltimore & Ohio R. R. Co., 16 L. R. A. (N. 8.) 1129,
and note. See note to Barnes v. Shreveport City R. R. Co., 49 Am.
St. R. 416.

* North. Pac. Ry. Co. ». Mahoney, 57 Pa. St. 187.

‘Union Pac. Ry. Co. ». McDonald, 152 U. 8. 262; Lynch ». Smith,
104 Mass. 62, 6 Am. R. 191; Byrne v. N. ¥.C. & H. R. R. Co., 104
N. Y. 362, 58 Am. R. 512; Binford ». Johnston, 82 Ind. 426, 42 Am.
R. 508. As to infant servants see ante, sec. 603,
TORTS BY AND AGAINST INFANTS 533

infant so young as to be incapable of exercising any care
cannot be guilty of contributory negligence.'

606. Imputable Negligence.

In spite of the fact that a child may be so young as to
be incapable of personal negligence, its right to recover
for personal injuries may be barred in some jurisdictions
by the negligence of some one having lawful custody or
control of it. This is termed the doctrine of imputed or
imputable negligence, a doctrine not confined to negli-
gence affecting children.2 As applied to children, how-
ever, the rule in general is this:—That where a child of
tender years or non sui juris has been injured by the neg-
ligence of a third party, not only may the parent be de-
barred by his own contributory negligence, or perhaps
by that of one to whom he has entrusted its care, but the
child itself or its representatives may likewise be debarred,
the contributory negligence of the parent or custodian
being imputed to the child.’

This brutally technical doctrine, however, is not recog-
nized in the majority of our states,* and even where it is,

1 Bottoms v. Seaboard, etc., R. R. Co., 114 N. Car. 699, 41 Am. St.
R. 799, 25 L. R. A. 784; Gavin v. Chicago, 97 Il. 66, 37 Am. R. 99;
Frick v. St. Louis, etc., Ry. Co., 75 Mo. 595; Schmidt ». Milwaukee,
etc., Ry. Co., 23 Wis. 186, 99 Am. D. 158.

2 See Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. R. 558; Mills
v. Armstrong, H. L. 13 App. Cas. 1.

3 Hartfield v. Roper, 21 Wend. (N. Y.) 615, 34 Am. D. 273, and note;
Mangam ». Brooklyn R. R. Co., 38 N. Y. 455, 98 Am. D. 66, and note;
Stillson v. Hannibal, etc., R. R. Co., 67° Mo. 671; Cauley v. Pittsburg,
etc., Ry. Co., 95 Pa. St. 398, 40 Am. R. 664; Meeks ». South Pac. Ry.
Co., 56 Cal. 513, 38 Am. Rep. 67; Kyne v. Wilmington, etc., R. Co.,
8 Houst. (Del.) 185; Leslie v. Lewiston, 62 Me. 468; Casey v. Smith,
152 Mass. 294, 23 Am. St. R. 842, 9 L. R. A. 259.

4 Warren v. Manchester St. Ry. Co., 70 N. H. 352; Pratt Coal & Iron
Co. v. Brawley, 83 Ala. 371, 374, 3 Am. St. R. 751; Railway Co. v.
Rexroad, 59 Ark. 180, 185; Daley v. Railroad Co., 26 Conn. 591, 598,
68 Am. Dec. 413; Moore v. Railroad Co., 2 Mackey (D. C.), 437, 449;
Chicago, etc., Co. ». Wilcox, 138 Ill. 370, 373, 21 L. R. A. 76; Evans-
ville ». Senhenn, 151 Ind. 42, 68 Am. St. R. 218, 41 L. R. A. 728;
534 TORTS BY AND AGAINST INFANTS

the courts have sought to.limit it by holding that the
negligence of the parent or custodian in permitting it to
be in a place of danger cannot be imputed to the child
where it exercised such care and discretion as might be
expected of an infant who had reached the age of discre-
tion, upon the principle that the negligence of the defend-
ant, and not that of the parent in permitting it to be in a
place of danger, was the proximate cause of the injury.!
Furthermore, if the defendant could have avoided injur-
ing the child by the use of such ordinary care as would
be due to an adult in the same situation, the rule of im-
putable negligence has no application;? and finally,
whether the failure of parents or custodians to keep
constant watch over children of tender years consti-
tutes negligence imputable to the latter, is usually a
question for the jury under all the circumstances of the
case.3

Wymore ». County, 78 Ia. 396, 397, 16 Am. St. R. 449, 6 L. R. A.
545, and note; South Covington, etc., Ry. Co. v. Herrklotz, 104 Ky.
400; Westerfield ». Levis, 43 La. 63; Shippy ». Au Sable, 85 Mich. 280,
292; Westbrook v. Railroad Co., 66 Miss. 560, 568, 14 Am. St. R. 587;
Winters v. Railway Co., 99 Mo. 509, 519, 17 Am. St. R. 591,6L. R.A.
536; Huff v. Ames, 16 Neb. 139, 142, 49 Am. R. 716; Bottoms »v. Sea-
board, ete., R. R. Co., 114 N. C. 699, 706, 41 Am. St. R. 799, 25 L. R.
A. 784; Erie, ete., Ry. Co. ». Schuster, 113 Pa. St. 412, 416, 57 Am. R.
471; » Whitley 0. Whiteman, 1 Head (Tenn. ), 610, 619; Norfolk, etc.,
R. R. Co. ». Ormsby, 27 Grat. (Va.) 455, 476; Roth v. Railroad Go.
13 Wash. 525, 545, 31 L. R. A. 855; Dicken v. Railroad Co., 41 W. Va.
511; + horns on Neg., sec. 294.

1 Chicago City Ry. Co. ». Robinson, 127 Ill. 9, 11 Am. St. R. 87,
4 L. R. A. 126; McGarry v. Loomis, 63 N. Y. 104, 20 Am. R. 510;
MeNeil v. Boston Ice Co., 173 Mass. 570.

2 Lafferty v. Third ro Ry. Co., 85 N. Y. (App. Div.) 592.

’ Fox v. Oakland, etc., St. Ry. Cox 118 Cal. 55, 62 Am. St. R. 216;
eee Brooklyn R. Co., 38 N. Y. 455, 98 Am. D. 66.
CHAPTER XLVIII

INFANCY IN RELATION TO AGENCY—WILLS, ETC., INFANTS
AS PARTIES TO ACTIONS

607. Infants as Principals.

It is often broadly laid down as an exception to the
general rule that an infant’s acts are voidable and not
void, that the appointment of an agent by an infant is
absolutely void, and that consequently any act done by
the agent on behalf of the principal is likewise void, and
incapable of ratification when the infant comes of age.!
Many of the cases in which this rule is announced involve
formal powers or warrants of attorney not conveying a
present interest,” and in view of the fact that the reasons
of the rule are technical and unsatisfactory, the decided
tendency at present is to confine it to these,’ or to regard
it as no longer in force.‘

t Trueblood ». Trueblood, 8 Ind. 195, 65 Am. D. 756; Armitage ».
Widoe, 36 Mich. 124; Philpot ». Bingham, 55 Ala. 485; Fonda v. Van
Horne, 15 Wend. (N. Y.) 631, 635, 30 Am. D. 77; Tucker ». Moreland,
10 Pet. (U. 8.) 58.

2 Zouch v. Parsons, 3 Burr. 1804; Saunderson v. Marr, 1 H. BI. 75;
Lawrence v. McArter, 10 Ohio, 37; Waples ». Hastings, 3 Harr. (Del.)
403.

3 Whitney ». Dutch, 14 Mass. 457, 7 Am. D. 229; Fairbanks 2.
Snow, 145 Mass. 153, 1 Am. St. R. 446; Patterson: v. Lippencott, 47
N. J. L. 457, 54 Am. R. 178; Towle v. Dresser, 73 Me. 252; Hastings
v. Dollarhide, 24 Cal. 195. An infant has long been held capable of
appointing an agent to do an act unquestionably to his advantage, as
to receive seisin. of an estate conveyed to him. See Whitney v. Dutch,
supra; Welch ». Welch, 103 Mass. 562. See generally on this subject
of delegation of authority by infants, note in 18 Am. St. R. 629.

4 Coursolle ». Weyerhauser, 69 Minn. 328.

535 -
536 WILLS OF INFANTS

608. Infants as Agents.

An infant may act as agent unless, perhaps, he is too
young to understand the nature of the trust. Even in the
latter case it would seem that the principal should be
bound if the agent keeps within his authority, for it is the
fault of the principal if he chooses an unfit instrument of
communication with another,! though the extreme youth
of the alleged infant would have an evidential bearing
upon the fact of agency if its actual existence were denied.’
The liability of an infant agent to his principal, however,
would be no greater than under other contracts of em-
ployment,’ nor would he be liable to third persons upon
an implied warranty of authority, at least in the absence
of fraud.

609. Wills of Infants.

By the common law, females at twelve and males at
fourteen years were capable of making valid wills of
personal property. The power to devise realty, how-
ever, which, since the introduction of feuds into England,
was derived from the statute of wills, could only be exer-
cised by persons of full age,® and the law of that country
so stands at present as to wills, both of real and personal
property. The same policy exists in the majority of
our states. Nor is it unjust, for, as a recent writer ob-
serves, ‘“‘the law itself draws up as good a will for chil-
dren as they are likely to make for themselves.” 7

In a number of states, however, the statutes establish
testamentary capacity in certain cases before full age is
reached. Thus, in several states a married woman of

1 Lynn v. Kent, 45 Ala. 656; Talbot », Bowen, 1 A. K. Marsh (Ky.),
436, 10 Am. D. 747.

2 See Mechem on Agency, sec. 59.

3 See ante, sec. 555.

4See 1 Underhill on Wills, sec. 120.

64 Kent’s Com. 505, 506; Davis ». Baugh, 1 Sneed (Tenn.), 477;
Deane v. Littlefield, 1 Pick. (Mass.) 239.

*1 Vict. Chap. 26, sec. 7.

7 Schouler’s Dom. Rel. (5th Ed.), sec. 397.
INFANTS AS PUBLIC OFFICERS 537

eighteen years or upward may dispose of real and per-
sonal property by will,‘ and in Iowa every married person
of whatever age may doso. In some states a distinction is
made between real estate and personalty,? and in others
between males and females, the statutes giving testa-
mentary, as well as contract, capacity to females, whether
married or single, at eighteen.

While the fact that an infant is empowered by statute
to make a will precludes it from being challenged for
mere want of age, the youth of a testator may bear upon
the question of mental capacity or undue influence.

If an infant makes a will of lands invalid for want of
legal age, his approval of it after reaching the age of tes-
tamentary capacity, and a fortiori, his mere neglect,
however long, to revoke or disapprove it, will not render
it valid. There must, it seems, be a reéxecution or re-
publication with the formalities prescribed by statute.
A will of personalty by one under lawful age, however,
may probably be ratified by any act after the attainment
of legal capacity, showing an intention to treat it as valid.*
Whether one has reached the age of testamentary capacity
or not, depends in the case of lands upon the lex loci rei
site; in the case of chattels, upon the law of his domi-
cile.*

610. Capacity of Infant to Hold Office.

As a general rule minors are incapable of holding pub-
lic office, though in this regard a distinction is made
between offices involving judgment and discretion, and
pecuniary and public responsibility, and those of a minis-
terial nature, which call for skill and diligence merely.

1 See Wis. Rev. Stat. 1898, sec. 2277.

2O’Byme »v. Feeley, 61 Ga. 77. Under such a statute a legacy, if
the personalty is deficient, cannot be charged upon land. Banks ».
Sherrod, 52 Ala. 267.

3See 1 Wms. Exrs. 16; 1 Redf. on Wills, 18, 19; Schouler on Wills
(3d Ed.), sec. 41.

4 Minor’s Confi. L., sec. 70.
538 INFANTS AS WITNESSES

In the absence of statute they may hold the latter, but
not the former.'

611. Infants as Executors, Administrators or Trus-
tees.

An infant will not be appointed administrator, and
if he is named as sole executor and the testator dies dur-
ing his minority, letters of administration with the will
annexed will be granted to some competent person until
the infant comes of age.? If he is made joint. executor
with an adult, the latter will act alone until the infant
comes of age.’

No court will appoint an infant as trustee. If an infant
is designated as trustee by the creator of a trust, the title
will pass to him, but equity will enforce and supervise its
execution by the guardian of the infant or some other
competent person during the infancy of the trustee.*

612. Infants as Witnesses.

At common law, infancy does not disqualify a witness
whatever his. age, provided he has sufficient intelligence
to understand the nature of an oath, the responsibility
he is under to tell the truth, and to receive just impres-
sions of the transaction and to relate them correctly.®

After the age of fourteen, which is sometimes termed
the age of common discretion, the competency of the
witness is presumed, and a witness of that age need not

1 Moore ». Graves, 3 N. H. 408, and authorities cited and discussed;
Golding’s Petition, 57 N. H. 146, 24 Am. R. 66.

21 Woerner’s Am. L. Admin., secs. 231, 182; Schouler’s Exrs. &
Adimrs., sec. 32, and note. Christopher v. Cox, 25 Miss. 162.

3 Woerner’s Am. L. Admin., supra.

4See 1 Perry on Trusts (4th Ed.), sec. 53. A conveyance made by
an infant trustee in performance of his duty as such will stand. See
ante, sec. 543.

5 Rex v. Brazier, 1 Leach C. C. 199; State v. Scanlan, 58 Mo. 204;
Draper v. Draper, 68 Ill. 17;, Featherstone. ». People, 194 Ill. 325;
Hughes ». Detroit, etc., R. R., 65 Mich. 10, 31; Davis v. State, 31 Neb.
247; Wheeler v. U. S., 159 U.S. 528.
INFANTS AS WITNESSES 539°

be examined as to his competency until some ground of
suspicion appears.?,

Under fourteen competency is not presumed, and it
becomes the duty of the court to satisfy itself before
receiving the testimony of a witness under that age that
he has sufficient understanding of the nature and obliga-
tion of an oath and of the matters to which his testimony
is to relate to render him competent.2 The examination
should be made by the judge in open court and should be
carried far enough to fairly disclose the competency or
incompetency of the witness.? The scope of the examina-
tion, however, is largely within the discretion of the
court, and its ruling will not be ground for reversal unless
it is clearly indiscreet or erroneous in view of legal prin-
ciples.*

There must be capacity in the infant, not only to ob-
serve and narrate correctly, but it must have some com-
petent understanding of the nature and moral obligations
of-an oath. But as to whether this. understanding must
necessarily involve ideas of divine reward and punish-
ment the authorities conflict. By the weight of authority
it probably need not, at least where, as in most states,
such belief is no longer necessary to the competency of
other witnesses.® .

1Den v. Van Cleve, 5 N. J. Law, 680; Brashears ». W. U. Tel. Co.,
45 Mo. App. 433; Holcomb »v. Holcomb, 28 Conn. 177.

2 People v. McNair, 21 Wend. (N. Y.) 608; State v. Richie, 28 La.
Ann. 327, 26 Am. R. 100; Hughes »v. Detroit, etc., R. R. Co., 65 Mich.
10; Ridenhour ». Kansas, etc., R. R., 102 Mo. 270.

3 People v7. McNair, supra; Simpson v. State, 31 Ind. 90; Hughes ».
Detroit, etc., R. R. Co., supra; People ». Baldwin, 117 Cal. 244.

4 State v. Richie, 28 La. Ann. 327, 26 Am. R. 100; People v. Walker,
113 Mich. 367.

5 That such belief is necessary, see Beason v. State, 72 Ala. 191;
State v. Beldon, 24 8. Car. 185, 58 Am. R. 245; State v. Michael, 37
W. Va. 565, 19 L. R. A. 605, and note. Contra, Hughes ». Railroad
Co., 65 Mich. 10; State ». Doyle, 107 Mo. 36; Sandford v. Hestonville
R. R., 136 Pa. 84; Moore »v. State, 79 Ga. 498. And see State v.
Levy, 23 Minn. 104, 23 Am. R. 678, involving the statute of Minne-
540 INFANTS AS PARTIES TO ACTIONS

613. Same—Statutory Modification of Rules as to
Infant Witnesses.

In some states there are statutory modifications of the
rules as to infant witnesses. Thus, in Indiana an infant
is prima facie competent to testify at ten, while in
Arkansas a child under ten cannot testify in civil cases,?
and other special statutes on this subject probably exist.

614. Weight to be Accorded Infant’s Testimony.

As to the weight to be accorded the testimony of an
infant witness no positive rule can be affirmed. The ques-
tion is primarily for the jury. The youth of the witness,
howéver, and his apparent intelligence and the circum-
stances under which he testifies are fair matters for com-
ment on the part of counsel. It is proper for the court,
and it is perhaps its duty, to warn the jury as to the danger
of relying too much upon the testimony of a child of ten-
der years, for its impressions are not always correctly
received, its imagination is likely to predominate over
its judgment, and its weakness, immaturity, timidity and
dependence leave it open to the influence of others, and
it is hardly possible to subject it to the ordeal of cross-
examination.®

ACTIONS BY AND AGAINST INFANTS

615. In General.

Infants may sue both at law and in equity for the
enforcement and protection of their personal and prop-
erty rights, and may likewise be sued whenever they

sota. It has been held that an infant witness otherwise competent
might be instructed as to the nature and obligation of an oath during
a recess of court, Com. v. Lynes, 142 Mass. 577, 56 Am. R. 709, or
that the trial may be postponed for that purpose. Holst ». State, 23
Tex. Ct. App. 1, 59 Am. Rep. 770.

1 Holmes ». State, 88 Ind. 145.

2 Warner v. State, 25 Ark. 447.

3 See Schouler’s Dom. Rel. (5th Ed.), sec. 398, and notes. The con-
fessions of infants should be received with peculiar caution. See State
v. Aaron, 1 South (N. J.), 231, 7 Am. Dee. 592.
INFANTS AS PARTIES TO ACTIONS 541

have incurred obligations under the rules discussed in
the preceding chapters, or have rights or titles that may
be affected by the suit.

An infant, however, being deemed incapable of properly
conserving his own rights and interests whether in or out
of court, should be represented in legal proceedings by
an adult, who, in the case of an infant plaintiff, is usually
termed a next friend or prochein ami, and in the case of
an infant defendant, a guardian ad litem.1 The powers,
duties and liabilities of the guardians ad litem and next
friends are practically identical, and are briefly discussed
in connection with the subject of guardian and ward.?

616. Infants as Plaintiffs.

Though the infant cannot properly sue in person or by
attorney, but only by guardian or next friend, if he sues
otherwise, advantage must be taken of the error by plea
or motion, otherwise it is cured by verdict.*

617. Infant not Entitled to Specific Performance.

Generally an infant, at least during infancy, cannot
have specific performance of his contract with an adult,
not because the adult is not bound at law unless the in-
fant has elected to rescind, but because equity demands
that remedies be mutual.‘

618. Infants as Defendants—Process.

In the absence of statute, jurisdiction of an infant
defendant is secured by service of summons or process
in the ordinary: way, subject to the qualification that
he cannot waive service or bind himself by an admission
thereof,® nor can his guardian bind him thus. In some

1 See Schouler’s Dom. Rel. (5th Ed.), sec. 449; Bush v. Linthicum,
59 Md. 344. See also 10 Am. & Eng. Encyclo. L. (1st Ed.) 679.

2 See post, sec, 738.

2See Webster v. Paige, 54 Ia. 461; Blood ». Harrington, 8 Pick.
(Mass.) 552; Smith ». Carney, 127 Mass. 179.

‘Flight v. Balland, 4 Russ. 298; Marble Co. v. Ripley, 10 Wall.
(U. 8.) 339, 359; Brown v. Munger, 42 Minn. 280.

5’ Westmeyer », Gallenkamp, 154 Mo. 28, 77 Am. St. R. 747.
542 INFANTS AS PARTIES TO ACTIONS

states, however, special modes of service upon infants
are prescribed, and where there has been no service, or
defective service, on the infant, a general appearance by
or for him will not be a waiver of process or defective
service, and subsequent appointment of a guardian ad
litem, it is held by many courts, will not cure the defect
of jurisdiction.! When the infant is once properly served,
however, it is incumbent upon the court to appoint a
guardian ad litem to conduct his defense. In the ab-
sence of such an appointment, a judgment against the
infant, though not absolutely void so as to be open to
collateral attack,? is nevertheless erroneous and should
be set aside or reversed on error or appeal.* Its enforce-
ment, however, will not be enjoined nor will it be set aside
unless it is in some respect unjust or inequitable.‘

619. Protection by Court of Infant Parties.

It is the right and duty of courts, and particularly of
courts of chancery, to protect the rights and interests of
infant litigants, and to this end they may exercise such
general supervision over the conduct of the guardian ad
litem or next friend, and over the cause, as the interests of
an infant party reasonably require.®

1Helms ». Chadbourne, 45 Wis. 60; Westmeyer v. Gallenkamp,
supra.

2 Cohee v. Baer, 134 Ind. 375, 39 Am. St. R. 270; Levystein v. O’Brien
106 Ala. 352, 54 Am. St. R. 56, 30 L. R. A. 707. Though the parents
as natural guardians of the infant have no authority without special
appointment to represent him in his suits. Johnson ». Waterhouse,
152 Mass. 585, 23 Am. St. R. 858, 11 L. R. A. 440.

’ Levystein v. O’Brien, supra; Peak v. Shasted, 21 Ill. 137, 74 Am.
D. 83; Grauman, Marx & Cline Co. v. Krienitz, 142 Wis. 556.

4 Levystein v. O’Brien, supra, and note to that case, 30 L. R. A.
p. 707; Drake ». Hanshaw, 47 Ia. 291; Grauman, Marx & Cline Co. ».
Krienitz, supra.

’ Richards ». Railway Co., 106 Ga. 614, 45 L. R. A. 712; Long-
necker ». Greenswade, 5 Dana (Ky.), 516; Branch v. Mitchell, 24 Ark.
432; Henley v. Gore, 4 Dana (Ky.), 133; Price 7. Crone, 44 Miss. 57 I;
Tyson v. Richardson, 103 Wis. 397; Tyson 2. Tyson, 94 Wis. 225,
INFANTS AS PARTIES TO ACTIONS 543

620. Judgments and Decrees Against Infants.

Generally an absolute judgment or decree affecting an
infant party to a suit who has been properly served, or
who has been represented by guardian ad litem or next
friend, is as binding and conclusive upon him as if he
were an adult.1_ In some states, however, it has been the
chancery practice to reserve the infant, by the terms of
the decree, a day in court after he becomes of age, in
which to show cause against it before it becomes abso-
lute,? and in some a similar right is reserved to him by
statute. In no case is a judgment by default conclusive
against an infant.

621. Limitation of Actions Against Infants.

The statutes of limitations run against infants the
same as against adults unless they contain a saving clause
in favor of minors or incompetent persons generally.* It
is commonly provided, however, that the statutes of
limitations shall not run against infants and other in-
competents until their disabilities have ceased, or that
they shall have a certain time thereafter within which to
sue. For detailed information on this subject reference
should be had to particular statutes and the decisions
construing them.‘

1 Freeman on Judgm. (4th Ed.), sec. 151.

2 See 1 Barbour’s Ch. Pr. 334; Schouler’s Dom. Rel. (5th Ed.), sec.
452; Joyce v. McAvoy, 31 Cal. 273, 89 Am. Dec. 172; McLemore ».
Chicago, etc., R. R. Co., 58 Miss. 514.

3 Vance v. Vance, 108 U. S. 514; Peterson v. Delaware River Ferry
Co., 190 Pa. 364; ante, sec. 297.

4See Wood on Lim., Chap. XII.
CHAPTER XLIX

CRIMES BY AND AGAINST INFANTS—PUNISHMENT OF YOUTH-
FUL OFFENDERS—COMMITMENT TO PENAL AND CHARI-
TABLE INSTITUTIONS

622. Criminal Capacity—In General—Presumptions.

In the law of contracts, as we have seen, there is
little or nothing of varying capacity and incapacity be-
tween birth and the age of full majority, and a young
man of twenty is no more capable of binding himself by
contract than is his brother of five.! In the law of torts,
as we have also seen, the rule is one of responsibility
generally, without regard to age, except so far as ques-
tions of malice, intent and negligence occasionally arise.”
The exceptional rule as to capacity for marriage has
already been stated.* In the criminal law, however, the
presumptions of capacity and incapacity vary with the
age of the defendant.

623. Same—Infant under Seven.

By the common law, an infant under seven is conclu-
sively presumed to be incapable of crime. This rule is
no doubt founded, not only upon the common belief that
children so young are incapable of forming the intent
which is an essential ingredient of crime, but upon the
feeling of repugnance with which civilized people natu-
rally contemplate the criminal punishment of the very
young. No proof of actual capacity to form or harbor a
criminal intent will therefore be admitted if it appears

1 See ante, sec. 541.
2 See ante, sec. 593.
3 See ante, sec. 39

544
CRIMES OF INFANTS 545

that the defendant was under the age of seven at the
time of the alleged criminal act.!

624. Same—Infant from Seven to Fourteen—Rape.

By the common law the presumption is against crim-
inal capacity between the ages of seven and fourteen.
The presumption, however, is no longer absolute, but
prima facie only, and an infant offender may be convicted
if the existence of criminal capacity is affirmatively shown.’

In England and most of our states an infant under
fourteen, though over seven, is conclusively presumed
incapable of rape. This last rule is founded, not so much
upon the incapacity of the child to intend the offense, as
upon the usual absence of physical ability to consummate
it, and the impolicy of admitting such indecent evidence
as would be required to prove physical ability in the
isolated cases where it might actually exist.? But an
infant under fourteen may be accessory to a rape com-
mitted by another,‘ or he may be convicted of assault
and battery or an indecent assault, where an older person
might be convicted of rape or an attempt to rape.®
Whether an infant under fourteen may be convicted of
an assault with intent to rape is the subject of some
controversy. In a number of states, however, the pre-

: 1 Bishop’s New Crim. Law, sec. 368; Reg. v. Smith, 1 Cox C. C. 261.
By statute the conclusive presumption of incapacity follows the infant
in Texas until nine, in Illinois and Georgia until ten, and in Arkansas
until twelve years of age. See 36 L. R. A. 197, note.

? 1 Bishop’s New Crim. Law, sec. 368; Rex ». Owen, 4 Carr. & P. 236;
State v. Tice, 90 Mo. 112; McCormack ». State, 102 Ala. 156; God-
frey v. State, 31 Ala. 323, 70 Am. D. 494. As to misdemeanors, see
State v. Yeargan, 117 N. Car. 706, and note thereto in 36 L. R. A. 196;
State v. Pugh, 7 Jones’s Law (N. Car.), 61.

*1 Hales, P. C. 629; Reg. v. Waite, 2 Q. B. 600, 17 Cox C. C. 554;
State v. Handy, 4 Harr. (Del.) 566; Com. v. Green, 2 Pick. (Mass.)
380; State v. Sam, 1 Winst. (N. Car.) 300; Williams v. State, 20 Fla.
777.

4 Law »v. Com., 75 Va. 885, 40 Am. R. 750.

’ State ». Pugh, 7 Jones’s Law (N. Car.), 61.

‘That a conviction cannot be sustained see Eldershaw’s Case, 3

35
546 CRIMES OF INFANTS

sumption of physical incapacity of a boy under fourteen
to commit rape is prima facie only, and if rebutted by
clear and satisfactory evidence, a conviction of rape or
of assault with intent to commit it may be had.!

With the exceptions above noted, the criminal capacity
of an infant between seven and fourteen may be shown,
but, like other elements of the particular offense, must
appear beyond a reasonable doubt, or, as is sometimes
said, beyond all doubt and contradiction.? And it seems
that it is not enough to show that the infant knew that
his act was morally wrong, he must have realized that it
was legally so.*

625. Same,—Infant over Fourteen.

After fourteen, criminal capacity is presumed,‘ save,
perhaps, where the offense is one of omission only, and the
infant’s non-control of his own services and fortune may
have disabled him from performing a duty enjoined by
the criminal law, as in the case of non-support of wife or
children,® or neglect to repair a highway. But the con-
fessions of an infant, even though he be over fourteen,
should be received with caution and scrutinized with

C. & P. 396; Rex ». Groombridge, 7 C. & P. 396. Contra, Com. ».
Green, 2 Pick. (Mass.) 380.

1 People ». Randolph, 2 Park. Cr. Cas. (N. Y.) 174; Gordon ». State,
93 Ga. 531, 44 Am. St. R. 189, and cases cited. Compare State v.
Jones, 39 La. Ann. 935.

* State ». Adams, 76 Mo. 355; Angelo v. People, 96 Ill. 209, 36 Am.
R. 132; Wusnig v. State, 33 Tex. 651; Martin v. State, 90 Ala. 602, 24
Am. St. R. 844.

* Parker ». State, 20 Tex. App. 451; Willett ». Com., 13 Bush. (Ky.)
230; State ». Yeargan, 117 N. Car. 706, 36 L. R. A. 196; Com. v. Mead,
10 Allen (Mass.), 398; State v. Larnard, 41 Vt. 585.

*1 Bish. New Cr. L., sec. 368; Denn ex dem. Boyd ». Banta, 1 N. J.
L. 266; State ». Kluseman, 53 Minn. 541; State ». Handy, 4 Harr.
(Del.) 566.

5 See People ». Todd, 61 Mich. 234.

*1 Hale’s P. C. 20; Reg. ». Sutton, 5 N. & M. 353. See also as to dis-
posing of mortgaged goods, State v. Howard, 88 N. Car. 650.
CRIMES AGAINST INFANTS 547

care, and this rule applies as well to his plea of guilty as to
his confessions out of court.

626. Crimes Against Infants,—Special Statutes for
Their Protection.

There are numerous special crimes involving infants,
including criminal abortion, concealment of birth, cruelty
to children, employment of infants under a certain age,
or in certain occupations, or in breach of laws limiting
their hours of labor, selling them prohibited articles,
and the carnal knowledge or abuse of female children
under a certain age.” As to this last offense, it seems that
the common law was inadequate, for to render an act of
intercourse with a child of whatever age a rape, want of
consent on her part was essential, provided she was old
enough to consent at all.? Historical discussion of this
point is unnecessary, however, for the statutes in all
jurisdictions now designate as rape or punish as a dis-
tinct crime the carnal knowledge of a female child under
a certain age without reference to actual consent. Under
these statutes it is immaterial that the defendant bona
fide believed that the age of consent had been reached.®
For further information on this subject, including the

1See Rex v. Thornton, 1 Moo. C. C. 27; State v. Bostick, 4 Harr.
(Del.) 563; Burton »v. State, 107 Ala. 108; 1 Bish. New Crim. L.,
secs. 370 et seq.

2 As to the practically unlimited power of the legislature as to these
and similar matters see State v. Shorey, 48 Oreg. 396, 24 L. R. A.
(N.8.) 1121.

3See Reg. v. Johnson, 10 Cox C. C. 114; 2 Bish. New Crim. L.,
sec. 1133.

‘The age of consent varies in the different states from twelve to
eighteen, and in some the punishment varies with the age of the fe-
male and the other circumstances of the case. Both the course and
recent condition of legislation on this subject are indicated in 3 How-
ard’s Hist. Mat. Institutions, 195 et seq. See also Loose v. State,
120 Wis. 115, particularly instructive as to this class of legislation.

5 State v. Houx, 109 Mo. 654, 32 Am. St. R. 686; Com. ». Murphy,
165 Mass. 66, 52 Am. St. R. 496, 30 L. R. A. 734.
548 PUNISHMENT OF INFANTS

law as to assaults and attempts upon female children,
reference should be had to standard works on criminal
law.!

PUNISHMENT OF INFANTS—COMMITMENT TO PENAL AND
CHARITABLE INSTITUTIONS

627. In General.

By the common law, infants convicted of crime are
liable to the same penalties as adults, and cases are not
wanting where infants, even under the age of fourteen,
have suffered capital punishment.’

Punishment for crime is now almost entirely regulated
by statutes, which often distinguish between youthful
and other offenders. Thus, in Texas capital punishment
of infants under seventeen is prohibited,*? and in view of
the likelihood of reform, special provisions for the impris-
onment of youthful and other special classes of offenders
have been widely enacted with a view to the attainment
of that end, not merely through punishment itself, but
by keeping them from the contaminating influence of
older offenders, and by means of such supervision, educa-
tion and training, often in special reformatories, as seem
best calculated to secure their return to society as use-
ful and well behaved citizens. Beyond this, public and
private beneficence has established in most states special
institutions and agencies for the care of abandoned, neg-
lected, delinquent and incorrigible youths of both sexes,
and commitment to these institutions or to the care or
supervision of these agencies may not only follow a con-
viction of crime in lieu of commitment to a technically
penal institution, but may be had in cases where the child,
though convicted of no specific offense, is in need of the

1See Bish. Stat. Crimes, secs. 480, 483-499.

2 State v. Guild, 10 N. J. L. 163, 18 Am. D. 404; Godfrey ». State,
31 Ala. 323, 70 Am. D. 494, and note. See note to Rex ». Yeargan,
Sm. Cas. on Pers. 335.

2 See Ingram »v. State, 29 Tex. App. 33.
PUNISHMENT OF INFANTS 549

special guardianship, discipline and protection that these
institutions and agencies afford.!

628. Constitutional Questions Involved—Trial by Jury
—Juvenile Courts.

Infants prosecuted for specific crimes are entitled to
all the constitutional rights and privileges of adults, in-
cluding trial by jury,’ except in cases where a summary
conviction before a magistrate would be valid at common
law.? They appear and defend in criminal cases in per-
son or by attorney, and not, as in civil cases, by guardian,
general or special.t Where the object of the proceeding,
however, is not the technical punishment of the infant
for a specific offense, but his commitment to an industrial
school or other juvenile asylum for needed guardianship,
maintenance, care and training, for his benefit and that
of society, there is no such interference with personal
liberty as requires a trial by jury.®

The power to commit without jury trial for this special
guardianship and nurture, as distinguished from technical

1 The laws of many states establish a probation system for youth-
ful delinquents, under which they are allowed to remain in their homes
or are placed in suitable homes, in lieu of commitment to reforma-
tories or industrial schools, the child, and to some extent its parents or
custodians, being subject in the meantime to the visitation and super-
vision. of a special officer known as a probation officer. See the opinion
and judgment in People v. Messenger, decided by a Colorado juvenile
court in 1910, printed in 70 Cent. L. Jour. 301.

2 Com. v. Horregan, 121 Mass. 450; Ex parte Becknell, 119 Cal. 496;
State v. Ray, 63 N. H. 406, 56 Am. R. 529.

3 See State v. Glenn, 54 Md. 572.

4 People v. Wandell, 21 Hun (N. Y.), 515; Word. ». Com., 3 Leigh
(Va.), 805.

$s Ex parte Crouse, 4 Whart. (Pa.) 9; Milwaukee Industrial School v.
Milwaukee County, 40 Wis. 328, 22 Am. R. 702; Wisconsin Industrial
School for Girls v. Clark County, 103 Wis. 651; State ex rel. Olson v.
Brown, 50 Minn. 353, 36 Am. St. R. 651, 16 L. R. A. 691; House of
Refuge v. Ryan, 37 Ohio St. 197; Ex parte Ah Peen, 51 Cal. 480; Roth
». House of Refuge, 31 Md. 329; In re Sharp, 15 Idaho, 120, 128, 18
R. A. (N. 8.) 886, and note.
550 PUNISHMENT OF INFANTS

punishment for a specific offense, delinquent, incorrigible,
neglected or abandoned children, rests upon the fact that
courts of chancery have from time immemorial exercised
jurisdiction to place children under proper guardianship
without a trial by jury, a jurisdiction derived in England
from the crown as parens patriz, and exercised long
before our constitutions declaring the right to trial by
jury were adopted.‘ In this country the powers and duties
of the crown as parens patrie ? have devolved upon the
states. The fact that modern statutes often confer the
powers originally exercised by chancery over infants
upon courts other than those of general chancery jurisdic-
tion does not render them unconstitutional so long as they
require judicial action substantially as at common law.
Usually, therefore, the jurisdiction of the so-called juvenile
courts, to which the power of summary commitment of
infants to charitable and reformatory institutions has
been conferred in many states, has been upheld, unless
their acts of organization have clearly contravened some
other provision of the constitution than that which
secures the right to trial by jury, or that which forbids
deprivation of liberty or property without due process
of law; * and this has been held even where the statute
authorized the same disposition of children destitute

1 Wellsley v. Wellsley, 2 Bligh (N. S.), 124; Eyre ». Countess of
Shaftsbury, 2 P. Wm. 118, 123; In re Stittgen, 110 Wis. 625, and cases
cited in the preceding note; post, sec. 726.

* The parens patrie means the fatherly care, solicitude and super-
vision which the sovereign power extends over those whose natural
disabilities prevent them from conserving their own interests or render
their untrammeled action inimical to the public welfare.

3 In re Christensen, 17 Utah, 412, 70 Am. St. R. 794, 41 L. R. A. 504,
and note to that case in 62 Cent. Law Jour. 226; Milwaukee Industrial
School v. Milwaukee County, 40 Wis. 328, 22 Am. R. 702, and cases
cited; Milwaukee Industrial School ». Clark County, 103 Wisconsin,
651; In re Knowack, 158 N. Y. 482, 44 L. R. A. 699; In re Sharp, 15
Idaho, 120, 18 L. R. A. (N. 8.) 886. See also other cases cited through-
out this and the next succeeding section. Compare Ex parte Becknell,
119 Cal. 496, and Robinson v. Wayne, Circuit Judges, 151 Mich. 315.
PUNISHMENT OF INFANTS 5bt

through misfortune and those convicted of crime, and
made no provision for their segregation.

629. Same—Rights of Parent and Child—Notice, etc.

Generally the laws providing for the summary com-
mitment of delinquent, incorrigible, neglected or criminal
youths to charitable or reformatory institutions provide
for notice to their natural or other guardians, if any,
and contemplate the presence of the infant before the
court; and it has recently been held that where the
parents are in no sense neglectful or incompetent as nat-
ural guardians, a proceeding to which they are not parties,
whereby the infant is sentenced to a reformatory upon
the sole ground that it is guilty of a misdemeanor, is
unconstitutional and void as an infringement of the
parents’ constitutional right to the pursuit of happiness,
and a deprivation of their property rights in the child’s
services without due process of law.?

So far as parents or other legal guardians of an infant
are concerned, it would seem plain that their authority
and custody cannot be finally superseded by proceedings,
other than a technically criminal prosecution affecting
the infant, unless they are given notice and a fair oppor-
tunity to be heard.* It should be further observed that
all statutory provisions meant to safeguard the substan-
tial rights and interests of the child should be fairly met,
otherwise the commitment will not be upheld.‘

1Ex parte Loving, 178 Mo. 194. See also Milwaukee Industrial
School v. Clark County, supra.

2 People » McLain, 80 N. E. Rep. 244 (Ill. Sup. Ct. 1907); see
Milwaukee Industrial School ». Milwaukee County, 40 Wis. 328, 338,
22 Am. R. 702.

3See Milwaukee Industrial School ». Milwaukee County, supra;
Schlitz v. Roenitz, 86 Wis. 31, 39, 39 Am. St. R. 873, 21 L. R. A. 483;
Van Walters v. Board, 132 Ind. 567, 18 L. R. A. 431; Inre Sharp, 15
Idaho, 120, 18 L. R. A. (N. 8.) 886.

4People v. Catholic Protectory, 38 Hun (N. Y.), 127, 44 Hun, 256,
106 N. Y. 604; Hibbard ». Bridges, 76 Me. 324; Goodchild v. Foster,
51 Mich. 599; People v. Turja, 157 Mich. 531.
552 PUNISHMENT OF INFANTS

Furthermore, where the commitment of the child is
rendered necessary by the inability of the parent to
properly provide for and protect it, if the parent subse-
quently becomes able and willing to discharge his duties,
he is entitled to have the child restored to him upon a
proper application and showing.!

630. Commitment to Private or Sectarian Institu-
tions.

The fact that the statute authorizes commitment of

‘an infant to a private institution for guardianship, nur-
ture and education, does not alone render such statute
invalid, and such institution may recover from the county
for the expense of care and maintenance of infants com-
mitted to its charge where the statute authorizes a re-
covery.”

Where the institution in question was sectarian, how-
ever, a statute authorizing such recovery has been held
in conflict with constitutional provisions forbidding the
payment of public money to any religious or sectarian
establishment ;* and it would seem doubtful in many
states how far commitment to such an institution may
be enforced against the will of the infant who had reached
the age of discretion.

1 Kelley v. Petitioner, 152 Mass. 482; Farnham ». Pierce, 141 Mass.
203, 55 Am. R. 452; In re Knowack, 158 N. Y. 482, 44 L. R. A. 699.
See also State v. Home Soc., 10 N. Dak. 492; State ». Marinouget, 111
La. 225.

2 Wisconsin Industrial School v. Clark County, 103 Wis. 651.

3 Cook County ». Chicago Industrial School for Girls, 125 Ill. 540,
8 Am. St. R. 386, 1 L. R. A. 487, and valuable note as to what con-
stitutes a sectarian institution; Farmer »v. St. Paul, 65 Minn. 176, 33
L. R. A. 199.
CHAPTER L
PERSONS NON COMPOTES MENTIS

631. Insane Persons and Persons Non Compotes
Mentis—In General.

Insanity in its widest sense is probably incapable of any
satisfactory definition, either legal or medical.1 It includes
both insanity and idiocy as popularly understood, both
of which are included in the phrase non compos mentis.?
It should be borne in mind that from a strictly legal
standpoint, at least, one may be insane and incapable as
to one act or class of acts, while sane and capable as to
some other act or class. This is well illustrated by the
difference between capacity to transact business and
capacity to make a will.’

Insanity in the narrower legal and popular sense is
defined as the loss of reason by one who originally pos-
sessed it.4 It is synonymous with lunacy in modern
usage, though the latter term was formerly applied to
periodic or intermittent insanity, upon the erroneous
supposition that it was dependent for its recurrence upon
changes of the moon.®

Idiocy, on the other hand, is a marked congenital
absence of mental capacity or understanding as distin-
guished from mere feebleness of mind. The term imbe-

12 Hamilton’s Syst. Leg. Med. 52, 169; Ewell’s Med. Jur. (2d Ed.),
330.

2 See Coke on Litt. 247a.

2See In re Blakely’s Will, 48 Wis. 294. See and compare post,
secs. 640, 642, 644, 651, 654.

4 See Coke on Litt. 246, 247a.

51 Bl. Com. 304.

553
554 INSANITY IN GENERAL

cility, while often used as synonymous with idiocy, more
strictly signifies a similar mental condition due to arrested
development in the early years of life, and has sometimes
been described as acquired idiocy.1_ Commonly there is
but little need for these distinctions in the ordinary ad-
ministration of the law. Still, under a statute providing
for the care of the “insane,” a distinction was made
between insanity and idiocy on the basis of the defini-
tions above.?

Insanity in its wider legal sense, however, comprehends
practically all forms of mental alienation, including both
insanity or lunacy and idiocy and imbecility, and may be
broadly defined as such want of mental capacity, con-
genital or acquired, as disables its victim (1) from acting
intelligently or voluntarily in any of the ordinary affairs
of life, or (2) in the particular matter under legal investi-
gation, or (8) requires his guardianship or restraint for
the safety and protection of his person or property or
both, or the safety and protection of the public. Attempts
at more exhaustive or accurate definitions that will be
at the same time both medically and legally satisfac-
tory will be likely, for the present at least, to meet with
little success, for medical definition and classification has
for its immediate object the diagnosis of mental disease
for the purposes of treatment, while legal investigation has
chiefly in view the relations of the patient to society with
a view to his and its safety and protection.®

In spite of all attempts at definition it should be ob-
served that the differences between insanity and eccen-

1See Coke on Litt., supra; 1 Bl. Com. 304; Maddox ». Simmons, 31
Ga. 512, 530, and authorities cited; Owing’s Case, 1 Bland’s Ch. (Md.)
370, 17 Am. D. 311. It is also used to describe the condition of ex-
treme mental weakness or fatuity sometimes incident to old age or
consequent upon insanity proper.

2 Speedling ». Worth, 68 Ia. 152.

3 For numerous definitions of insanity, legal and medical or medico-
legal, see Ewell’s Med. Jur. (2d Ed.) 330 et seq.; Witthaus & Becker’s
Med. Jur. 181, 182, 2 Hamilton’s Syst. Leg. Med., 53 et seq.
CUSTODY AND CONTROL OF INSANE 555

tricity, and between idiocy and mere feebleness of raind,
are often difficult to discover and impossible to define.
It should also be remembered that when courts deal
with the acts of one whose will or understanding is feeble
or impaired, though he is neither idiotic nor insane, they
proceed with caution and apply with great strictness the
rules against fraud, duress and undue influence.?

632. Custody and Control of Insane Persons.

The powers and duties of the strict legal guardians of
the insane, particularly touching their estates, are dis-
cussed later on.? The present inquiry refers chiefly to
their personal detention and restraint, including their
commitment to institutions provided for their care and
treatment. At the same time it does not attempt to
deal with the details of local law or practice, but to give
the general and fundamental rules of the subject common
to all jurisdictions. .

It may not be out of place to observe in passing that a
charge of insanity, with or without a view to public pro-
ceedings based thereon, should always be made after the
most careful and cautious deliberation, for it can hardly
fail, whether followed by guardianship or commitment
or not, to carry with it grave consequences to the alleged
lunatic, particularly in his business and social affairs
and prospects, and very often to others.* Furthermore,
to falsely charge another with insanity or mental incom-
petency may be actionable, either per se or on proof of
special damage, depending on the circumstances of the
case,‘ and unfounded proceedings to have another de-
clared a lunatic and placed under guardianship will, if
instituted maliciously and without probable cause, sus-
tain an action for malicious prosecution.?> And though

1 See Maddox ». Simmons, supra; Owing’s Case, supra.

2 See post, sec. 638.

3 See Cooley on Torts (2d Ed.), 204.

4 Townsend’s Sland. & Lib. (4th Ed.) 200, 209, 241.

6 Lockenour ». Sides, 57 Ind. 360, 26 Am. R. 58; Davenport ». Lynch,
6 Jones’s Law (N. Car.), 545; Griswold ». Griswold, 148 Cal. 617.
556 CUSTODY AND CONTROL OF INSANE

the practice of placing the supposedly insane under re-
straint without judicial proceeding is quite common and
frequently commendable, it is often dangerous and un-
wise. That it is liable to grave abuse is a matter of com-
mon knowledge. The most that can be urged in its favor
is that it frequently saves the feelings of the lunatic and
his friends, and averts the social stigma and injury to
business standing and prospects that a public commit-
ment almost necessarily involves.!

633. Arrest and Detention Pending Adjudication.

A private person may arrest without warrant or other
legal authority, a person so disordered in his mind that the
exigencies of the case require it for the safety of the
lunatic or of others.? In so doing, however, he acts at
his peril, and his good faith will not save him from civil
liability if the supposed lunatic be sane;* and this is
true even though the plaintiff was in fact insane, unless
he was dangerous to himself or to those about him.‘
Furthermore, the detention in such cases is legally war-
ranted only for such time as is necessary to institute
proper legal proceedings to determine the question of
sanity and provide for the custody of the lunatic.®

634. Judicial Determination of Insanity.
Whether those who have confined against his will one
really a lunatic without an inquisition would be liable at

1 Those who procure or unite in procuring an illegal commitment for
insanity are probably liable as for false imprisonment. See Van Deusen
v. Newcomer, 40 Mich. 90; Palmer ». Buck, 83 Mich. 528; Bacon ».
Bacon, 76 Miss. 458; Emmerich v. Thorley, 54 N. Y. S. 791, 35 App.
Div. 452.

2 Keleher ». Putnam, 60 N. H. 30, 49 Am. R. 304; Com. ». Kirk-
bride, 2 Brewst. (Pa.) 400.

3 Fletcher v. Fletcher, 1 El. & El. 420, 102 E. C. L. 420; Keleher ».
Putnam, supra.

‘Lock v. Dean, 108 Mass. 116, 11 Am. R. 323; Keleher v». Putnam,
supra; Lott ». Sweet, 33 Mich. 308.

* Colby v. Jackson, 12 N. H. 526; Keleher ». Putnam, supra.
CUSTODY AND CONTROL OF INSANE 557

common law.as for false imprisonment, does not seem to
have been clearly determined.! However this may be,
any person confined as insane, whether actually so or
not, is entitled to a writ of habeas corpus to inquire into
the legality of his detention. If it appears at the hearing
that he is sane, or, if insane, that further restraint is un-
necessary to the public safety or morals or his own safety
or cure, or that his detention is otherwise illegal, he
should be discharged.?

By the great weight of authority, the alleged insane
person has an absolute right to notice and to a fair judi-
cial hearing upon the question of his sanity before being
deprived of his liberty or the control of his property, and
any statute or proceeding that militates substantially
against this right is in violation of the fourteenth amend-
ment, forbidding deprivation of life, liberty or property
without due process of law.* It is held in some states
that the alleged lunatic cannot be deprived of liberty
or the control of his property without the judgment of
his peers, and that he is therefore entitled to a trial by
jury,‘ and statutes in some states provide for a jury of
inquiry substantially as under the English practice.’ By
the seeming weight of authority, however, one sought to

1See Van Deusen ». Newcomer, 40 Mich. 90; Palmer v. Buck, 83
Mich. 528.

2 Territory v. Sheriff, etc., 9 Mont. 297; Doyle v. Petitioner, 16 R. I.
537, 27 Am. St. R. 759, 5 L. R. A. 359, and note; Com. v. Kirk-
bride, 3 Brewst. (Pa.) 586; Dowdell v. Petitioner, 169 Mass. 387, 61
Am. St. R. 290.

3State v. Billings, 55 Minn. 473, 43 Am. St. R. 525; State v. Kil-
bourne, 68 Minn. 320; La Donne »v. Petitioner, 173 Mass. 550; Dow-
dell v. Petitioner, 169 Mass. 387, 61 Am. St. R. 290; Smith v. People,
65 Ill. 375; Underwood »v. People, 32 Mich. 1, 20 Am. R. 633. See
Chavennes 2. Priestley, 80 Ia. 316, 9 L. R. A. 193. See Simon 2. Craft,
182 U. S. 436, as to presence of lunatic at hearing. See also Freund’s
Police Power, sec. 254.

‘Smith »v. People, supra; Com. v. Kirkbride, 2 Brewst. (Pa.) 419;
Matter of Dey, 9 N. J. Eq. 181; Howard ». Howard, 87 Ky. 616, 1
L. R. A. 610.

5 And see Rev. Stat. Ill., Chap. 85, sec. 67,
558 JURISDICTION OVER INSANE

be restrained or placed under guardianship as insane,
idiotic or otherwise incompetent, is not entitled to a jury
trial as a matter of right under the ordinary constitu-
tional guaranty that ‘‘the right to trial by jury shall
remain inviolate.” The reason usually given for such
decisions is that the constitutional guaranty aimed to
preserve the right to trial by jury substantially as it ex-
isted at common law, and not to extend it to cases where
it was not recognized by that law as a matter of right.?

635. Jurisdiction Over Persons and Estates of Insane.

Whether courts of equity in this country have inherent
jurisdiction over the persons and estates of idiots and
lunatics is a question concerning which there is some
conflict of authority. The weight of authority apparently
concedes it.? The question is of little importance at the
present time, however, for liberal jurisdiction over the
persons and estates of lunatics and other incompetents
is in most states expressly conferred by statutes upon
courts of equity and probate, or upon other specified
courts.* In whatever court the jurisdiction is lodged,
however, it is exercised upon equitable principles sub-
stantially as in the case of infants.

636. The Inquisition and Finding of Insanity and Its
Effect.

The method and procedure for determining the mental
competency of a person with a view to his guardianship or
his commitment to an asylum, or both, is largely regulated
in all the states by statute. In some the proceedings are
analogous to those adopted in the English courts, where
the proceeding is by writ de lunatico inquirendo issuing

1 Hagany v. Cohnen, 29 Ohio St. 82; Schroyer ». Richmond, 16 Ohio
St. 455; Gaston ». Babcock, 6 Wis. 503; Matter of Ross, 38 La. Ann.
523; Matter of Breese, 82 Ia. 573, and cases cited.

* See Dwight’s Pers. & Pers. Property, 305, 306; Bisph. Eq. (8th Ed.),
secs. 551 et seq. Compare Dodge ». Cole, 97 Ill. 338, 37 Am. R. 111

with Oakley ». Long, 10 Humph. (Tenn.) 254.
3 See In re Harris, 7 Del. Ch. 42.
DOMICILE OF INSANE 559

out of chancery to commissioners under the great seal,
who, with the aid of a jury, hear testimony and make
and return a finding which may be confirmed, or is set
aside by the chancellor if the commission is improperly
executed. A finding of insanity may be traversed by
the alleged lunatic, who is then entitled to have the
question of his sanity tried in a court of law.! If he is
found insane, the next duty of the court is to take charge
of his person and estate, which is done by appointing a
guardian or “‘committee”’ of his person or estate or both.
In many of the states the procedure is less complicated.
The form of: procedure, however, has little or nothing
to do with the legal effect of a finding of lunacy. Until
the finding and the resultant guardianship or commission
is superseded, the alleged lunatic is without capacity for
future legal acts of a contractual nature, at least where
he was found incompetent to have the custody and man-
agement of his estate.2 Hence, though it. has sometimes
been said that lunacy is not a status but a natural dis-
ability, a finding of lunacy followed by the appointment
of a guardian or committee of the estate would appear to
create a local status at least, and by the weight of au-
thority precludes inquiry into the actual or natural ca-
pacity of the lunatic as above indicated, so long as the
guardianship continues.*®

637. Domicile of Persons Non Compotes Mentis.
Closely connected with the question of jurisdiction

1 Compare Ex parte Wragg, 5 Ves. Jr. 450 with Matter of Wendell,
1 Johns. Ch. (N. Y.) 600. See Dwight’s Pers. & Pers. Prop. 306.

2See post, secs. 644, 646. Asto testamentary capacity, see post,
sec. 654.

3 Whether one judicially declared a lunatic, drunkard or spendthrift
and placed under guardianship in one jurisdiction can make a valid
contract in another jurisdiction, if he has mental capacity in fact, is the
subject of conflicting views. See Story’s Confl. L. (5th Ed.), sec. 103;
1 Whart. Confl. L. (8d Ed.) 291; Am. Trust, etc., Co. ». Boone, 102
Ga. 202, 66 Am. St. R. 167, 40 L. R. A. 250; Gates ». Bingham, 49
Conn. 265.
560 GUARDIANSHIP OF INSANE

over the persons and estates of lunatics and idiots is that
of domicile. [ Idiots being incapable of having a domicile
of choice evertafter majority, their domicile ordinarily
remains that of origin until changed in good faith by
those having their legal custody and control.

One who is so far insane when he attains his majority
as to be incapable of intelligently choosing a new domicile,
Fetains the domicile he had when he reached full age.
| Here, as in most other departments of the law of in-
Sanity, the question of capacity doubtless depends upon
ability to intelligently perform the articular act the va-
lidity of which is in question, 1. e.,| to intelligently choose
a place of residence, and not upon the question whether
he was medically or legally insane for other purposes.’
Doubtless the fact that the party had been found so far
incapable of managing his own person and affairs that a
guardian had been appointed for him would be at least
prima facie evidence that he was incapable of acquiring
a domicile of choice.*? Furthermore, as in the case of
an infant ward, [the guardian of a lunatic probably has
no power to change his domicile from one country or state
to another, though his municipal domicile can doubtless
be changed by a guardian who acts in good ee
less of the place of the ward’s actual residence. “Removal
of an insane person to an asylum, whether by his guardian
or the public authorities, appears to work no change of
domicile.

638. Guardianship of Persons Non Compotes Mentis.
While it is sometimes said that the guardians for an

1 See Jac. Dom., sec. 268; Sharpe v. Crispin, L. R. 1 P. & D. 611, 618;
Washington v. Beaver, 3 W. & S. (Pa.) 548, 549. See also Hahn ».
Cooper, 84 Wis. 629.

2 Concord v. Rumney, 45 N. H. 423. See Jac. on Dom., sec. 264.

*See Mowry v. Latham, 17 R. I. 480; Talbot 0. Chamberlain, 149
Mass. 57, 3 L. R. A. 254; Rogers v. Rogers, 56 Kan. 483.

‘See Jac. on Dom., secs. 265, 266, and authorities cited in the first
note to this section. See also Anderson v. Anderson, 42 Vt. 350, 1 Am.
R. 334, 1 Whart. Confl. L. (3d Ed.), sec. 53.
GUARDIANSHIP OF INSANE 561

insane person, usually called the committee, have practi-
cally the same powers and duties as the guardian of an
infant, this is not strictly true, at least where such guard-
ians are of chancery appointment. In such case they
are merely bailiffs or curators without title to the prop-
erty of the lunatic, and with power merely to preserve,
repair and improve it and apply the income to the main-
tenance of the ward, unless a larger authority is con-
ferred by statute or by the court.! Statutes in most
states authorize the appointment of guardians for the
insane by courts of probate, however, and quite generally
place such guardians upon substantially the same footing
as to powers and duties as guardians of infants.”

In allowing the guardian for disbursements, the courts
are inclined to be quite liberal in sanctioning expendi-
tures consistent with the fortune and income of the ward,
so far as they are reasonably calculated to promote his
comfort and happiness and his restoration to health.
Indeed the paramount consideration is the welfare of
the lunatic to which the expectations of others are sub-
ordinate.* But, as in the case of infants, the guardian of
a lunatic, even under modern American practice, is not
authorized to exceed the annual income of the estate with-
out the order or direction of the court. If he does so he
acts at his peril.*

In no case, in the absence of statute, is the guardian of
a lunatic permitted to sell the lands of his ward without
an order of court. Such a sale is at least voidable by the
ward upon his restoration to reason, or by his heirs in

1 Hamilton v. Taber, 78 Md. 26, 44 Am. St. R. 258; Pharis v. Gere,
110 N. Y. 336, 1 L. R. A. 270; Cooper v. Wallace, 55 N. J. Eq. 192;
Bolling v. Turner, 6 Rand. (Va.) 548.

2 Stumpf v. Pfeifer, 58 Ind. 472; Alexander v. Alexander, 8 Ala. 796;
Anderson ». Anderson, 42 Vt. 350, 1 Am. R. 334.

’Oxenden v. Compton, 2 Ves. Jr. 69; May v. May, 109 Mass. 252,
256; Hambleton’s Appeal, 102 Pa. 50; post, sec. 645.

‘Equitable Trust Co. v. Garis, 190 Pa. 544,70 Am. St. R. 644;
Kennedy »v. Johnson, 65 Pa. 455, 3 Am. R. 650,

36
562 GUARDIANSHIP OF INSANE

case of his death. Neither can the guardian of an insane

-wife relinquish her dower or homestead rights. But
statutes exist in most states providing for a special pro-
ceeding whereby the lands of lunatics may be sold or
leased and the dower and homestead rights of insane
wives may be barred under proper circumstances. It is
hardly necessary to say that such statutes must be
strictly or at least substantially complied with.!

1See Brewster on Conv., sec. 348.
CHAPTER LI

CONTRACTS AND CONVEYANCES OF INSANE PERSONS

639. Contracts—In General.

By the early common law the plea of insanity was no
defense to an action based upon the lunatic’s civil acts,
for it was said that the law would permit no man to stul-
tify himself.!_ The later common law went to the opposite
extreme, and adopted the rule that the contracts of a
lunatic or person otherwise non compos mentis were ab-
solutely void, without regard to the nature of the mental
infirmity, or whether it disabled its victim from giving
intelligent assent in the particular case or not.”

640. Modern Rule.

Independent of an inquisition and finding of lunacy,
however, the modern rule sustained by the great weight
of authority is that the contracts of persons non com-
potes mentis are voidable only and not void, even in cases
where the transaction was the evident result of mental
weakness or insane delusion.? It is also quite generally
held, in the absence of a judicial finding of mental inca-
pacity, that though a party may have been insane at the
time of contracting, he will be absolutely bound, in the
absence of fraud, if he had sufficient understanding to
comprehend the nature of his contract and its probable

1 Beverly’s Case, 4 Coke, 1230, 1 BI. Com. 292; Hall v. Butterfield,
59 N. H. 354, 47 Am. R. 209.

2 See Gore v. Gibson, 13 M. & W. 623; Mitchell ». Kingman, 5 Pick.
(Mass.) 431, where the question is elaborately examined; Hall ». Butter-
field, supra. As to the deeds of lunatics see post, sec. 646.

3 Allis ». Billings, 6 Met. (Mass.) 415, 39 Am. D. 744, and note;
Flach v. Gottschalk Co., 88 Md. 368, 71.Am. St. R. 418, 42 L. R. A.
745; Aitna Life Ins. Co. v. Sellers, 154 Ind. 370, 77 Am. St. R. 481;

563
564 CONTRACTS OF INSANE

consequences.! Whether mere partial insanity or delu-
sions upon a particular subject or subjects will be ground
for avoiding a contract will therefore depend upon whether
such contract is so connected with or related to the mental
disorder as to preclude the insane party from understand-
ing its nature and its probable effect upon his interests.”

641. Same—Lucid Interval.

It is well known that in many cases persons otherwise
insane have periods when they are apparently sane and
competent to understand and transact business. Con-
tracts made during these so-called lucid intervals are
valid and binding in all jurisdictions, though the party
was insane immediately before and after his assent was
given,® unless he was under guardianship at the time.*

642. Rule Where Insanity Is Unknown to Other Con-
tracting Party.

Where a contract with an insane person is executory,
it is voidable whether the other contracting party knew
of the insanity or not. But where the insane person was
not under a conservator or guardian, a contract entered
into with him will, by the weight of authority, be valid
and binding upon him, provided the other party did not
know or have reason to know of the insanity, and the

Allen v. Berryhill, 27 Ia. 534, 1 Am. R. 309; Gribben ». Maxwell, 34
Kan. 8, 55 Am. R. 233. That the contracts of a lunatic are absolutely
void, see Dexter v. Hall, 15 Wall. (U. S.) 9. See the dissenting opin-
ion of Cole, J., in Allen ». Berryville, supra; Rogers >. Blackwell,
49 Mich. 192. But see Dougherty v. Powe, 127 Ala. 577; Am. Trust
Co. v. Boone, 102 Ga. 202, 66 Am. St. R. 167, 40 L. R. A. 250.

1 Searle v. Gailbraith, 73 Ill. 272; Wright v. Jackson, 59 Wis. 569;
Henderson v. McGregor, 30 Wis. 78; Hovey ». Chase, 52 Me. 304, 83
Am. D. 514; Lozear ». Shields, 23 N. J. Eq. 509; Jackson ». King, 4
Cow. (N. Y.) 207, 15 Am. D. 355, 361, and note.

2In addition to cases, supra, see Riggs ». Am. Tract Soc., 95 N. Y.
503; Lewis v. Arbuckle, 85 Ia. 335, 16 L. R. A. 677.

* McCormick ». Littler, 85 Ill. 62, 28 Am. R. 610. Further as to this
and the presumptions in such cases, see post, sec. 668.

‘See post, secs. 644, 646.
CONTRACTS OF INSANE 565

contract is fair in itself and has been so far performed
that the sane party cannot be restored to his original
position.! Indeed it appears now to be law in England
that the contract need not be executed in order to bind
an insane party thereto. All that seems necessary is that
the other party should have acted in good faith and in
ignorance of his infirmity.?, A few courts, however, have
established a different rule, and hold that the lunatic
may repudiate his contract, whether executed or execu-
tory, in spite of the fact that it was fair and the opposite
party had no knowledge of his insanity, for, as has been
said, ‘‘the defendant’s fairness cannot supply the plain-
tiff’s want of capacity.” *

In spite of the rule protecting those who deal with a
lunatic in good faith and without notice of his insanity,
it seems that the bona fide holder of his commercial paper
will not be protected, at least to any greater extent than
the original payee.‘

643. Ratification and Avoidance of Lunatic’s Contracts.
The contracts of an insane person, being voidable

+ Molton v. Camroux, 2 Exch. 489, 4 Exch. 17; Niell ». Morely, 9 Ves.
Jr. 47; Gore v. Gibson, 13 M. & W. 626; Carter ». Beckwith, 128 N. Y.
321; Mutual Life Ins. Co. ». Hunt, 79 N. Y. 541; Beals v. See, 10
Pa. 56, 49 Am. D. 573; Memphis Nat. Bank v. Sneed, 97 Tenn. 124,
56 Am. St. R. 788, 35 L. R. A. 274; Burnham v. Kidwell, 113 Ill. 425;
Gribben v. Maxwell, 34 Kan. 8, 55 Am. R. 233; Eaton v. Eaton, 37
N. J. L. 108, 18 Am. R. 716; McCormick »v. Littler, 85 Ill. 62, 28 Am.
R. 610; Wireback v. First Nat. Bank, 97 Pa. 543, 39 Am. R. 821;
post, next section.

2 Imperial Loan Co. v. Stone, 1 Q. B. 599; Drew ». Nunn, L. R. 4
Q. B. D. 661.

3 Seaver v. Phelps, 11 Pick. (Mass.) 304, 22 Am. D. 372; Brigham ».
Fairweather, 144 Mass. 52, and cases cited; Dewey »v. Allgire, 37 Neb.
6, 40 Am. St. R. 468; Hovey v. Hobson, 53 Me. 451, 89 Am. D. 705;
Fitzgerald v. Reed, 9 S. & M. (Miss.) 94; Orr ». Mortgage Co., 107
Ga. 499.

‘Hosler v. Beard, 54 Ohio St. 398, 56 Am. St. R. 720, and note thereto
in 35 L. R. A. 161. Compare Lancaster County Bank »v. Moore, 78
Pa, 407, 21 Am. R. 24.
566 CONTRACTS OF INSANE

merely, unless he was under guardianship at the time of
contracting, may be ratified or avoided by his guardian
or committee or personal representatives, or by the luna-
tic himself during a lucid interval or upon his restoration
to reason.! If the contract is ratified it will be binding in
its entirety. In any case the sane party, in the absence
of fraud, cannot avoid it. The right of avoidance is per-
sonal to the lunatic, his guardian or representatives.”
Furthermore, it is the duty of the lunatic or his represent-
atives upon avoidance to restore, or offer to restore,
whatever of the consideration remains to him or them
in specie. This would doubtless be required in all juris-
dictions. If this cannot be done, the right of avoidance
does not exist in most jurisdictions, or is strictly condi-
tional upon compensation being made for what the lunatic
got, provided the contract were fair and equitable and the
other party thereto acted in good faith and in ignorance
of the insanity.? But in those jurisdictions in which the
lunatic’s contracts are voidable, whether executed or not,
no restoration can be exacted upon rescission where the
consideration moving to the lunatic has been wasted or
squandered so that restoration in specie is impossible.

1 Allen v. Berryhill, 27 Ia. 534, 1 Am. R. 309; Northwestern Ins.
Co. v. Blankenship, 94 Ind. 535, 48 Am. R. 185; Gibson ». Soper, 6
Gray (Mass.), 279, 66 Am. D. 414; Turner v. Rusk, 53 Md. 65; Camp-
bell ». Kuhn, 45 Mich. 513, 40 Am. R. 479. The indorsement of a lu-
natic carries the title to commercial paper unless he or his representa-
tive avoids it. Carrier v. Sears, 4 Allen (Mass.), 336, 81 Am. D. 707.

2 Allen v. Berryhill, supra; Northwestern Ins. Co. v. Blankenship,
supra. The rule as to partnership is somewhat peculiar. While it is
held by some courts that the insanity of a copartner ipso facto dis-
solves the firm, by the weight of authority it is ground for dissolution
at the suit of the other partners, and that a dissolution will be decreed
only where it appears that the disability is likely to prove permanent.
Raymond ». Vaughan, 128 Ill. 256, 15 Am. St. R. 112, 4 L. R. A. 440,
and authorities cited and reviewed in the opinion.

*See ante, sec. 642, and cases cited; Boyer ». Berryman, 123 Ind.
451.

‘Gibson v. Soper, 6 Gray (Mass.), 279, 66 Am. D. 414; Hovey ».
Hobson, 53 Me. 451, 89 Am. D. 705.
CONTRACTS OF INSANE 567

644. Contracts of Insane Persons under Guardian-
ship.

It is generally settled, and is declared by statutes in
most states, that the contracts of a person who has been
judicially found insane and placed under guardianship
are absolutely void, and the lunacy record, so long as it
remains in force, is conclusive evidence of incapacity.'
Even a guardian’s consent to a conveyance of real prop-
erty under these circumstances is of no effect, and while
the guardianship for insanity continues the ward is con-
clusively presumed to be incompetent and his contracts |
are void even though he may at the time of the transac-
tion have in fact recovered his reason, or have been in
the enjoyment of a lucid interval.2. If the guardianship
had terminated when the contract was made, however,
whether by the removal of the guardian or his abandon-
ment of the trust, the presumption of incapacity is no
longer conclusive.® It is further held that a mere adjudi-
cation of insanity without the appointment of a guardian
is not conclusive, for a person may be so far insane that
he should be committed to an asylum for care and treat-
ment, yet be sane enough to make a will, a contract or a
deed. At most, such commitment would be prima facie
evidence of incapacity.‘

645. Contracts for Necessaries.
Lunatics are liable for necessaries upon substantially

1 Hughes v. Jones, 116 N. Y. 67, 15 Am. St. R. 386, 5 L. R. A. 632;
Tozer v. Saterlee, 3 Grant’s Cas. (Pa.) 162; Pearl ». McDowell, 3 J. J.
Marsh (Ky.), 658, 20 Am. D. 199; McCormick ». Littler, 85 Ill. 62, 28
Am. R. 610; Flach ». Gottschalk Co., 88 Md. 368, 42 L. R. A. 745, and
note in 71 Am. St. R. 426. It makes no difference that the adjudica-
tion took place in another jurisdiction and was unknown to the other
contracting party. Am. Trust Co. v. Boone, 102 Ga. 202, 66 Am. St.
it. 167, 40 L. R. A. 250. See, however, ante, sec. 636.

2 RNannells ». Gerner, 80 Mo. 474.

3 Wilworth ». Leonard, 156 Mass. 227; Mohr v. Tulip, 40 Wis. 06;
Ridden v. Baker, 86 Ind. 911; Burnham ». Kidwell, 113 Ill. 425.

4 Dewey ». Allgire, 37 Neb. 6, 40 Am. St. R. 468; Wilworth v. Leon-
ard, supra.
568 CONVEYANCES OF INSANE

the same principles and to the same extent as infants,’

except that necessaries for a lunatic concern not only
the person, but the estate, and include whatever is neces-
sary for its preservation.2. In determining what shall be
deemed necessaries for a lunatic, however, courts con-
strue that term even more liberally than in the case of
infants, and deem it to include whatever is necessary or
appropriate to his maintenance, care and comfort in view
of his means and condition in life, though they partake of
the nature of luxuries rather than of strict utilities. It
makes no difference with the liability of a lunatic for
necessaries that he has a guardian or conservator, except
to raise a presumption that his wants have been supplied.*
Neither is knowledge of the insanity by the party supply-
ing the necessaries material to his right to recover their
reasonable value. Necessaries for the lunatic, of course,
include necessaries for his family.®

CONVEYANCES BY INSANE PERSONS

646. In General—Voidable and not Void.

The conveyances of an insane person under guardian-
ship, like his ordinary contracts, are absolutely void. But
in this country, where the lunatic is not under guardian-

‘See ante, sec. 545; Sceva v. True, 53 N. H. 627; Waldron ». Davis,
70 N. J. L. 788, 66 L. R. A. 591.

2 Williams ». Wentworth, 2 Beav. 325; McCormick ». Littler, 85
Ill. 62, 28 Am. R. 610; Navasata First Nat. Bank ». McGinty, 29 Tex.
Civ. App. 539; ante, sec. 547.

3 Baxter v. Earl of Portsmouth, 7 D. & Ry. 614, 5 B. & C. 170, 11
E. C. L. 415, 2 C. & P. 178; Kendall ». May, 10 Allen (Mass.), 59;
Cantrell v. Cecil, 22 Ky. L. 1121; Richardson v. Strong, 35 N. Car.
(13 Ired.) 106, 55 Am. D. 480; Borum »v. Bell, 132 Ala. 85.

‘Creagh v. Tunstall, 98 Ala. 249. See also Schramek 2. Shepeck,
120 Wis. 643.

5 Richardson v. Du Bois, L. R. 5 Q. B. 51; Pearl v. McDowell, 3
J. J. Marsh. (Ky.) 658, 20 Am. D. 199.

* Leonard v. Leonard, 14 Pick. (Mass.) 280, 284; Valpey v. Rea, 130
Mass. 384; Rannells ». Gerner, 80 Mo. 474, and cases cited in French
Lumbering Co. v. Theriault, 107 Wis. 642, 81 Am. St. R. 856, 51 L. R.
A. 910; ante, sec. 644.
CONVEYANCES OF INSANE 569

ship, his deeds are quite generally held voidable merely,
and not absolutely void.! In a few states, however, the
deed of an insane person is void whether he is under
guardianship or not.”

Assuming, then, that a lunatic’s deed is voidable unless
he is under a guardian or conservator, some difference of
opinion exists as to the precise meaning of the term
“‘voidable”’ in this connection. It is generally held, how-
ever, that the deed of a lunatic passes title subject to
disaffirmance by him after his restoration to reason,’ or
by his guardian or committee appointed in the meantime,‘
or by his heirs, if they proceed promptly after his death.®
But it has sometimes been said that the deed of a luna-
tic passes no title, unless confirmed by him when he is
restored to reason, or by his guardian, or his heirs or
devisees.*®

To render void or voidable the deed of a lunatic not
under guardianship, however, he must not only have
been insane at the time of making it,’ but his insanity,
as in the case of ordinary contracts, must have been of
such a nature as to preclude a rational understanding of

1 Luhrs v. Hancock, 181 U. 8. 567; Allis v. Billings, 6 Met. (Mass.)
415, 39 Am. D. 744, and note; French Lumbering Co. v. Theriault, supra,
and numerous authorities cited and reviewed in the opinion. See
Thompson »v. Leech, 3 Salk. 300; In re Desilver, 5 Rawle (Pa.),
111, 28 Am. D. 645.

2 Boddie ». Bush, 136 Ala. 560; Farley ». Parker, 6 Oreg. 105, 25
Am. R. 504. Some cases hold that a lunatic’s deed is void only where
he is so utterly bereft of reason as to have no understanding of the
nature of his act. Van Dusen v. Sweet, 51 N. Y. 378; Riggs v. Am.
Tract Soc., 95 N. Y. 503; Brown v. Miles, 61 Hun (N. Y.), 453, 456.

2 French Lumbering Co. v. Theriault, 107 Wis. 627, 81 Am. St. R.
856, 51 L. R. A. 910, and cases cited in the opinion; Turner v. Rush,
53 Md. 65.

4 Warfield v. Fiske, 186 Mass. 219; Domling ». Domling, 128 Mich.
588.

5 Hemphill ». Halford, 88 Mich. 293.

* Brigham »v. Fayerweather, 144 Mass. 48; Crawford ». Scovill, 94
Pa. 48, 39 Am. R. 766.

7 Lilley v. Waggoner, 27 Ill. 395, 399.
570: CONVEYANCES OF INSANE

the business in hand.1 Weakness of mind alone is not.
sufficient to have that effect.?

647. Same—Conditions of Avoidance.

Where the grantee of a lunatic acted in good faith,
and in ignorance of the insanity, the insane grantor or
his representatives, may disaffirm, in general, only upon
condition that they restore the consideration or other-
wise consent to place the grantee in statu quo.°

By the weight of authority an insane grantor or his
representatives may avoid his deed, not only as against
his immediate grantee, but against bona fide purchasers
for value, however remote.‘

648. Same—Disposition of Lunatic’s Lands under
Statute.

Statutes authorizing the conveyance or release, under
certain conditions, of interests in lands of persons non
compotes mentis have already been noticed.®

1See ante, sec. 640; Jenkins v. Morris, 14 Ch. D. 674.

2 Stewart v. Lispenard, 26 Wend. (N. Y.) 255, 304; Greer v. Greer,
9 Gratt. (Va.) 330.

3 Eldredge v. Palmer, 185 Ill. 618, 76 Am. St. R. 59; Boyer v. Berry-
man, 123 Ind. 451; Pearson v. Cox, 71 Tex. 246, 10 Am. St. R. 740;
McKenzie v. Donnell, 151 Mo. 431, 458; Thrash v. Starbuck, 145 Ind.
673. That an insane grantor may disaffirm without returning the
consideration and regardless of the good faith of the grantee, see
Brigham ». Fayerweather, 144 Mass. 48; Wagner ». Wagner, 53 Neb.
511.

‘Hull v. Louth, 109 Ind. 315, 58 Am. R. 405; Dewey ». Allgire, 37
Neb. 6, 40 Am. St. R. 468; Hovey ». Hobson, 53 Me. 451, 89 Am. D.
705. Contra as to a recorded deed, Odom ». Riddick, 104 N. Car. 515,
17 Am. St. R. 686, 7 L. R. A. 118; Ashcraft ». DeArmond, 44 Ia. 229.

5 See ante, sec. 638.
CHAPTER LII

WILLS OF THE INSANE

649. In General.

The term ‘‘testamentary capacity” signifies the legal
power or capacity to make or revoke a valid will! The
inquiry whether such capacity exists is always directed
to the time of the testamentary act, and the prior or
subsequent incapacity of the testator is immaterial ex-
cept in so far as it relates to his capacity at that time.?
Want of testamentary capacity may arise from lunacy
or insanity proper, or from idiocy or extreme feebleness
of mind induced by old age, illness, excesses or any other
cause.

650. General Test of Mental Capacity.

Various general tests of mental capacity to make a
will have been suggested. The general rule to be deduced
from the varying expressions of the modern cases may be
fairly summed up as follows: Testamentary capacity, so
far as the mental condition of the testator is concerned,
implies, not medical or technical sanity, but ability to
comprehend and appreciate the scope and nature of the
testamentary transaction, the general condition of his
property, and the persons who would naturally have
claims upon his bounty.* To this is often added the

1 Linkmeyer v. Brandt, 107 Ia. 750; Delafield ». Parish, 25 N. Y. 9.

2 See post, sec. 671; Von de Veld v. Judy, 143 Mo. 348; Greene ».
Greene, 145 Il. 264.

3 Banks »v. Goodfellow, L. R. 5 Q. B. 549; Smee v. Smee, L. R. 5 P. D.
84; Bitner ». Bitner, 65 Pa. 347; Coleman v. Robinson, 17 Ala. 84;
Converse ». Converse, 21 Vt. 168, 52 Am. D. 58; Clark ». Fisher, 1
Paige Ch. (N. Y.) 171, 19 Am. D. 402; Kirkwood ». Gordon, 7 Rich.

571
572 WILLS OF INSANE

requisite or qualification, that the testator must have
sufficient active memory to collect in his mind, without
prompting, the elements of the business to be transacted
and to hold them there until their relations to each other
can be perceived and a rational judgment in respect
thereto be formed.

651. Business Capacity—Delusions, etc.

If a testator’s mental condition at the time of making a
will brings him fairly within the requirements of the rules
above stated, it is not necessary for him to be competent
to make contracts or to transact business generally.
Evidence of capacity for business, however, is admissible
on the subject of testamentary capacity,’ and proof of
business capacity, or at least of capacity to transact
business generally, is practically conclusive in favor of
testamentary capacity.‘ Still, if the testator at the time
of making his will was subject to some specific delusion,
his capacity for business would not be a conclusive test,
for the rule in such cases is that if a testator is insane
on one or more particular subjects, though otherwise

Law (8. Car.), 474, 62 Am. D. 418; Waddington »v. Buzby, 45 N. J.
Eq. 173, 14 Am. St. R. 706; Burney v. Torrey, 100 Ala. 157, 46 Am. St.
R. 33; Cash ». Lust, 142 Mo. 630, 64 Am. St. R. 576; Chafin Will Case,
32 Wis. 558.

1 Delafield ». Parish, 25 N. Y. 9, 27; Van Guysling ». Van Kuren, 35
N. Y. 70; Converse ». Converse, 21 Vt. 168, 52 Am. D. 58; McMaster v.
Scriven, 85 Wis. 162, 39 Am. St. R. 828; Blough v. Parry, 144 Ind. 363;
Hall v. Perry, 87 Me. 569, 47 Am. St. R. 352; Slaughter ». Heath, 127
Ga. 747, 751, 27 L. R. A. (N. S.) 1, and note. Compare Wilson 2.
Mitchell, 101 Pa. 495; Shaver v. McCarthy, 110 Pa. 339; Carpenter ».
Calvert, 83 Ill. 62; Brown v. Mitchell, 75 Tex. 9.

? Banks v. Goodfellow, L. R. 5 Q. B. 549; Ring v. Lawless, 190 IIL.
520; Turner’s Appeal, 72 Conn. 305; Howard ». Coke, 7 B. Monr.
(Ky.) 655. See also Stewart’s Exr. ». Lespenard, 26 Wend. (N. Y.) 255,
with which compare Delafield v. Parish, supra.

* Delafield v. Parish, supra. Compare Brackney ». Fogle, 156 Ind.
535.

‘Ring v. Lawless, supra; Berry v. Safe Deposit, etc., Co., 96 Md.
45; Hogan v. Roche, 179 Mass. 510.
WILLS OF INSANE 573

apparently sane, his will will be valid or void depending
upon whether it was or was not prompted by his delu-
sions.?

652. Eccentricity and Delusions Distinguished.

It follows from what has been said that it is important
to distinguish between mere eccentricities or peculiari-
ties of character or belief, to which every person is sub-
ject in greater or less degree, from what may properly
be termed the delusions of insanity, for the latter and
not the former merely, destroy testamentary capacity.’
Legally a delusion is a fixed belief that certain facts
exist contrary to the truth, and which has arisen or per-
sists in spite of such evidence or argument as would con-
vince any rational mind.*? A mere mistake of fact result-
ing from false or insufficient evidence is not enough to
invalidate a will,t and so where conclusions drawn from
evidence are illogical, or unusual, provided they are not
wholly irrational. Thus, a belief in spiritualism,® or in
Christian Science,® or the faith cure,’ or even in witch-

1 Banks v. Goodfellow, supra; Smee v. Smee, 5 P. D. 84; Durham »v.
Smith, 120 Ind. 463; Den v. Gibbons, 22 N. J. L. 117, 51 Am. D. 253;
Boardman v. Woodman, 47 N. H. 120; Manley’s Exrs. v. Staples, 62
Vt. 153, 8 L. R. A. 707.

2In re White, 121 N. Y. 406; Chafin Will Case, 32 Wis. 557; Van
Guysling ». Van Kuren, 35 N. Y. 70; Boyd »v. Boyd, 66 Pa. 292;
Hutchinson ». Hutchinson, 152 Ill. 347; Am. Seaman’s Friend Soc. ».
Hopper, 33 N. Y. 619; In re Lewis, 33 N. J. Eq. 219; Potts ». House,
6 Ga. 324, 50 Am. D. 329.

3 See Riggs ». Am. Tract Soc., 95 N. Y. 503; McGovern’s Est., 185
Pa. 203; Taylor v. Trich, 165 Pa. 586, 44 Am. St. R. 679; Appeal of
Kimberly, 68 Conn. 428, 37 L. R. A. 261, 57 Am. St. R. 101; Owen
v. Crumbaugh, 228 Ill. 380, 119 Am. St. R. 442; Smith v. Smith, 28
N. J. Eq. 566. See note to 63 Am. St. R. 80.

«In re Cline, 24 Oregon, 175, 41 Am. St. R. 851.

5 Middleditch ». Williams, 45 N. J. Eq. 726, 4 L. R. A. 738, and note;
Orchardson ». Cofield, 171 Ill. 14, 63 Am. St. R. 211, 40 L. R. A. 256;
In re Smith’s Will, 52 Wis. 548, 38 Am. R. 756; Chafin Will Case, 32
Wis. 557.

6 In re Brush’s Will, 72 N. Y. Supp. 421, 35 Misc. 689.

7 Taylor v. Trich, 165 Pa. 586, 44 Am. St. R. 679.
574 WILLS OF INSANE

craft and evil spirits,! is not of itself proof of mental in-
capacity. So, violent prejudices, unjust suspicions, ex-
treme jealousy or resentment for fancied wrongs, are not
of themselves sufficient to invalidate a will, provided there
is some foundation for them in fact or appearance.”

653. Same—Undue Influence and Mental Weakness
Combining.

But the weakness or peculiarities of the testator’s mind
are always proper subjects of inquiry in determining
whether a will was procured by undue influence, even
though there is no claim or showing of positive testamen-
tary incapacity.®

654. Effect of Guardianship on Testamentary Ca-
pacity.

Though the contracts of one under guardianship as
incompetent to manage his estate are quite generally
conceded to be absolutely void, most courts hold that one
under guardianship may make a valid will if he has
sufficient mental capacity in fact, though the letters of
guardianship were not superseded at the time of the
testamentary act. The burden of showing capacity in
such cases is on the proponent.5

1Van Guysling v. Van Kuren, 35 N. Y. 70; Addington v. Wilson, 5
Ind. 137, 61 Am. D. 81; Lee v. Lee, 4 McCord (8. C.), 188, 17 Am. D.
722; Potts v. House, 6 Ga. 324, and note thereto in 50 Am. D. 346.

2 Clapp ». Fullerton, 34 N. Y. 190, 90 Am. D. 681; Chafin Will Casc,
32 Wis. 557; Owen v. Crumbaugh, 228 Ill. 380, 119 Am. St. R. 442.

3 Robinson »v. Robinson, 203 Pa. 400; Yount ». Yount, 144 Ind.
133; Orchardson v. Cofield, 171 Ill. 14, 63 Am. St. R. 211, 40 L. R. A.
256; Hayes v. Moulton, 194 Mass. 157.

4TIn re Fenton’s Will, 97 Ia. 192; Breed v. Pratt, 18 Pick. (Mass.)
115, and cases cited; In re Slinger’s Will, 72 Wis. 22; McNees ».
Thompson, 5 Bush (Ky.), 686.

5 See post, secs. 667 et seq.
CHAPTER LIII

TORTS AND CRIMES OF INSANE PERSONS—LIABILITY
IN TORT

655. Insane Are Generally Liable in Tort.

Notwithstanding the abandonment of the ancient the-
ory of torts that the doer of harm is absolutely respon-
sible, and the substitution of the principle that involun-
tary acts do not constitute actionable wrongs, the law
still clings quite firmly to the rule that an insane person
is liable for his torts, at least to the extent of the damage
actually done.! Thus, an insane person has been held
liable for causing the death of another by conduct that
would have been criminal had the actor been sane,? for
burning the property of another,’ for assault and battery,‘
for trespass,® for deceit in inducing a contract between
the plaintiff and a third person, and even for bringing
about a false imprisonment while acting as justice of
the peace. Various reasons are urged as the basis of this
liability in modern times, but none of them are quite
satisfactory. Thus, it is said that when one or two inno-
cent persons must suffer, it should be he whose act occa-

1 Weaver v. Ward, 1 Hobart, 134 (1616); McIntyre v. Sholty, 121 Iil.
660, 2 Am. St. R. 140; Cross ». Kent, 32 Md. 581; Morain ». Devlin,
132 Mass. 87, 42 Am. R. 423; Williams v. Hays, 143 N. Y. 442, 42
Am. St. R. 748, 26 L. R. A. 153, and cases cited in the opinion and
throughout this section.

2 McIntyre v. Sholty, supra; Jewell v. Colby, 66 N. H. 399.

3 Cross ». Kent, supra; Karow v. Continental Ins. Co., 57 Wis. 56, 46
Am. R. 17.

4See Ward ». Cronaster, 4 Baxt. (Tenn.) 64.

6 Morse v. Crawford, 17 Vt. 499, 44 Am. D. 349; Amick v. O’Hara, 6

Blackf. (Ind.) 258.
6 Krumm », Schoonmaker, 3 Barb, (N, Y.) 647.

575
576 TORTS OF THE INSANE

sioned the injury.!' Again, it is said that public policy
demands the enforcement of liability that those who
may naturally expect to benefit by the estate of the
lunatic, being commonly in control of him, may be under
an inducement to restrain him from doing harm.?

656. Torts Involving Malice and Intent.

In view of the unsatisfactory reasons for the rule hold-
ing insane persons liable for their torts and its manifest
hardship and injustice, courts and text writers have
shown a disposition to limit its operation to wrongs in
which malice and intent are not essential elements.* It
has therefore been held that one totally deranged or
acting under the influence of a delusion on the subject
to which his words relate, is not liable for defamation.‘
But perhaps the majority of courts hold the insane per-
son liable for his defamatory words whatever his state or
condition of mind,*> though they concede that he is not
liable for exemplary damages unless, perhaps, he was
sane enough to be capable of malice in fact.6 And doubt-
less insanity may everywhere be shown in mitigation of
damages for defamatory words, and if they are but the
ravings or babblings of one evidently idiotic or deranged,
they may produce little damage or none at all, and little
or nothing save nominal damages can be recovered.’

1 Beals v. See, 10 Pa. 56, 49 Am. D. 573.

* Cooley on Torts (2d Ed.), 116; Williams v. Hays, supra.

* Pollock on Torts, 46; Bish. on Non-contract Law, secs. 505 et seq.

4 Bryant v. Jackson, 6 Humph. (Tenn.) 199; Horner v. Marshall, 5
Munf. (Va.) 466; Withrow v. Smithson, 37 W. Va. 757, 19 L. R. A.
762. See Gates v. Meredith, 7 Ind. 440. Compare Yeates v. Reed, 4
Blackf. (Ind.) 463, 32 Am. D. 43.

5 Mordaunt ». Mordaunt, L. R. 2 P. & D. 108, 149; Dickinson ».
Barber, 9 Mass. 225, 6 Am. D. 58, and note; and cases in the next note.

* Jewell v. Colby, 66 N. H. 399; Cross ». Kent, 32 Md. 581; Ward ».
Cronaster, 4 Baxt. (Tenn.) 64. See also Krumm »v. Schoonmaker, 3
Barb. (N. Y.) 647.

7 Ulrich v. N. Y. Press Co., 23 Misc. (N. Y.) 168; Yeates v. Reed, 4
Blackf. (Ind.) 463, 32 Am. D. 48.
CRIMES OF THE INSANE 577

657. Negligence.

It has often been held or asserted that the insane are
responsible for such acts or omissions as would constitute
actionable negligence in a person of sane mind.' Some
authorities with better reason adopt a rule analogous to
that which apparently applies to infants, and require of
an insane person only such care as is within his actual
capacity. But one so far insane or devoid of intelligence
as to be incapable of apprehending and avoiding danger
cannot be guilty of contributory negligence as against
one who, knowing his condition and the peril in which he
is placed, inflicts negligent injury upon him. It seems,
however, that a less degree of mental weakness will not
excuse a plaintiff from exercising the care of an ordinarily
prudent man.?

CRIMINAL RESPONSIBILITY OF THE INSANE

658. In General.

It is the rule of the ancient common law that no person
is guilty of crime, who at the time of the commission of
the alleged criminal act was so utterly deprived of reason
as to be incapable of forming a criminal intent. This rule,
so far as it goes, is naturally the law to-day.‘ But in the
majority of cases where the defense of insanity is inter-
posed, the mental infirmity, if any, is of less degree, and

1 Weaver v. Ward, 1 Hobart, 134; Williams v. Hays, 143 N. Y. 442,
42 Am. St. R. 748, 26 L. R. A. 153; Beals ». See, 10 Pa. 56, 49 Am.
D. 573; Morain ». Devlin, 132 Mass. 87, 42 Am. R. 423; Brown »v.
Howe, 9 Gray (Mass.), 84, 69 Am. D. 276. It has been held in New
York, however, that a shipmaster was not liable for the loss of his ves-
sel where his incapacity to care for her was due to overwork and ex-
haustion in looking after her safety. Williams v. Hays, 157 N. Y. 541,
68 Am. St. R. 797.

2 Holmes’s The Common Law, 82, 83; Parrott v. Wells, 15 Wall.
(U. 8.) 524.

3 Worthington v. Mercer, 96 Ala. 310, 17 L. R. A. 407. As to intox-
icated persons, see post, sec. 683.

‘Com. v. Rogers, 7 Met. (Mass.) 500, 41 Am. D. 458, and author-
ities cited.

37
578 CRIMES OF THE INSANE

the question of responsibility often becomes one of the
most difficult with which lawyers and alienists have to
deal, and upon which they often differ much in their
theories and conclusions. With the progress of scientific
knowledge, however, many of the older legal tests of in-
sanity have been discarded altogether as founded upon
utterly wrong conceptions of the nature and phenomena
of mental disease. Without attempting the endless and
impossible task of reconciling or even discussing the
older decisions. and utterances on the subject, whether
legal or medical, we will endeavor to outline the law of
criminal responsibility of the insane as shown by the
somewhat divergent currents of modern authority.!

659. Same—The English Rule—McNagten’s Case.

In McNagten’s case, which arose in 1843 ? upon ques-
tions propounded to the House of Lords, it was the opin-
ion of the judges that in order that a defendant shall be
immune from criminal responsibility on the ground of
insanity,

1. That it must be clearly proved that at the time the
act was committed the accused was laboring under such
a defect of reason, from disease of mind, as not to know
the nature and quality of the act he was doing, or if he
did know it, that he did not know he was doing what was
wrong; or

2. That if a person is laboring under a partial delu-
sion, not being in other respects insane, he must be con-
sidered as in the same situation as to responsibility as if the
facts in respect to which the delusion existed were real.’

660. Conflict of Authority in America—Irresistible
Impulse.
These tests of responsibility have been followed in

? See Parsons v. State, 81 Ala. 577, 60 Am. R. 193.

210 Cl. & F. 200.

*See Boswell v. State, 63 Ala. 307, 35 Am. R. 20; Com. v. Rogers,
supra; Hotema v. U.S., 186 U.S. 413.
CRIMES OF THE INSANE 579

England, and have since been substantially adopted in
the majority of the United States, to the apparent ex-
clusion of others.2 But a number of our courts admit at
least one more ground of exemption from criminal re-
sponsibility in the insane, and hold that though the de-
fendant may have known the nature of his act, and that
he was doing wrong, still, if he acted under the influence
of mental disease producing an impulse which he was
utterly powerless to resist, he must be acquitted. The
legal theory in such cases is that the defendant’s act is
done practically under duress, and that he should no
more be held responsible for it than if he had acted under
the impulsion of some irresistible external force,’ a theory
supported by the testimony of the majority of those
who have had any extended experience in the care and
treatment of the insane.t Yet it is the inclination and
policy of courts which recognize insane impulse as a de-
fense to crime, to confine it within strict limits, and it is

1 Reg. v. Haynes, 1 F. & F. 666.

2 People v. Carpenter, 102 N. Y. 238; Flanagan v. People, 52 N. Y.
467, 11 Am. R. 731; State ». Brandon, 8 Jones (N. Car.), 463; People
v. Owens, 123 Cal. 482; State v. Knight, 95 Me. 467, 55 L. R. A. 373;
Spencer v. State, 69 Md. 28; Oborn v. State, 126 N. W. 637 (Wis.,
1909); Cunningham ». State, 56 Miss. 269, 31 Am. R. 360; State v.
Berry, 179 Mo. 377; Genz ». State, 59 N. J. L. 488, 59 Am. St. R. 619;
State v. Alexander, 308. Car. 74, 14 Am. St. R. 879; Wilcox v. State, 94
Tenn. 106; Lowe v. State, 44 Tex. Cr. R. 244; State ». Harrison, 36
W. Va. 729, 18 L. R. A. 224; U.S. ». Guiteau, 10 Fed. 161; U.S. ».
Young, 25 Fed. 710. See State v. Scott, 41 Minn. 365, decided under
statute. d

3 Parsons v. State, 81 Ala. 577, 60 Am. R. 193; State v. Pike, 49 N. H.
399, 6 Am. R. 533; State v. Jones, 50 N. H. 369, 9 Am. R. 242; Com. ».
Mosler, 4 Pa. 264; State ». Geddis, 42 Ia. 271; State v. Felter, 25
Ta. 67; People v. Durfee, 62 Mich. 494; People v. Fenley, 38 Mich. 482;
Stevens v. State, 31 Ind. 485, 99 Am. D. 634, and note; State ». John-
son, 40 Conn. 186; Hopps v. People, 31 Ill. 385, 83 Am. D. 231; State
v. Reidell, 9 Houst. (Del.) 470.

4 Maudsley’s Responsibility in Mental Disease, Chap. 4; 2 Hamil-
ton’s Syst. Leg. Med. 244. See 2 Witthaus & Becker’s Med. Jur.
270 et seq.
580 CRIMES OF THE INSANE

generally held that an insane impulse that could have
been successfully resisted is no defense.! So it is said that
the plea of irresistible insane impulse should have the
most careful scrutiny,’ and it is doubtless its liability to
‘fabrication and abuse that leads most courts to re-
ject it. ,

661. Moral and Emotional Insanity.

So-called moral and emotional insanity are sometimes
confused with irresistible impulse, from which they should
be distinguished, though the distinction is often difficult
to make.* Thus, a person may have a morbid propensity
or impulse to kill, or to burn, or to appropriate the prop-
erty of others, but unless it appears that such impulse or
propensity amounts to an uncontrollable mania arising
from mental disease, it is in no case a defense to a prosecu-
tion for crime. Much less would a propensity or impulse
toward a criminal act be an excuse for crime where it
was the mere result of moral obliquity, or wicked pro-
pensities or habits, or vicious training or associations.’
Neither would a criminal act be excused, provided the
prisoner had sufficient mental capacity to distinguish be-
tween right and wrong as to the act in question, where
it proceeded simply from the passions of anger, jealousy,
disappointment or revenge.* But actual insanity, though

1 State v. Jones, supra; Scott v. Com., 4 Met. (Ky.) 227, 83 Am. D.
461.

2 Com. v. Mosler, 4 Pa. 264; Parsons v. State, 81 Ala. 577, 60 Am.
R. 193; People v. Bell, 49 Cal. 485; State ». Johnson, 40 Conn. 136.

8 See State v. Lehman, 2 8. Dak. 171; Leache ». State, 22 Tex. App.
279, 58 Am. R. 638; Com. ». Mosler, 4 Pa. 264.

41 Whart. Crim. L., sec. 574; Leache v. State, supra.

5 Boswell v. State, 63 Ala. 307, 35 Am. R. 20. Persons subject to
such impulses or propensities largely constitute the so-called habitual
criminals or criminal class.

¢ As to heat of passion in reduction of the degree of homicide see
Johnson v. State, 129 Wis. 146, 158, 5 L. R. A. (N. 8.) 809, and note,
citing and discussing many authorities; 2 Bish. New Crim. L., secs. 697
et seq.
CRIMES OF THE INSANE 581

due to the victim’s own fault in yielding to those passions,
may preclude responsibility.!

662. Trial and Punishment of the Insane.

Regardless of the ultimate question of sanity at the time
of the offense, it is well settled that no one can be placed
upon trial for a crime unless he is sufficiently sane to
make a rational defense,? nor can he be lawfully sen-
tenced or punished, even for an offense of which he has
already been convicted, if he is, or becomes, so far in-
sane as to be unable to understand and appreciate the
nature and purpose of punishment, or to say anything in
bar of judgment, or to assign error thereon.* The issue
of the defendant’s sanity can be raised at any stage of
the trial. But the practice in such cases varies, and
being subject to statutory regulations of some kind in
nearly all the states, is not appropriate for consideration
here.

After conviction and sentence, while the defendant is
awaiting or undergoing punishment, a suggestion of his
present insanity may still be made, when it will be the
duty of the court to award a trial of the fact unless, upon
preliminary examination, the claim of insanity appears
groundless.*®

Special statutes in most states provide for the confine-
ment of insane criminals in asylums, not strictly as
criminals but as patients whose malady requires treat-

1See Duthey »v. State, 1381 Wis. 178, 192, 10 L. R. A. (N. 8.) 1082,
and cases cited on page 193 of the opinion. See as to insanity
due to drunkenness or other forms of vicious indulgence, post,
sec. 689.

24 BI. Com. 395, 396; Freeman v. People, 4 Denio (N. Y.), 9, 47
Am. D. 216, and note; 2 Bish. New Crim. Pro., secs. 666-668.

3 Barker ». State, 75 Neb. 289; Freeman v. People, supra; Bonds ».
State, Mart. & Yerg. (Tenn.) 143, 17 Am. D. 795; Com. ». Buccieri,
153 Pa. 535.

4See Freeman v.-Peéople, supra.

5 See Nobles ¥. Ga., 168 U. S. 398; State ». Harrison, 36 W. Va. 729,
18 L. R. A. 224.
582 ACTIONS BY AND AGAINST THE INSANE

ment and restraint for their own welfare and the pro-
tection of society.!

CIVIL ACTIONS BY AND AGAINST THE INSANE

663. In General—May Sue and Be Sued.

At common law a lunatic may be plaintiff or defendant
in a civil suit the same as a sane person without the in-
tervention of a guardian, and will usually be bound by the
result. In this respect the lunatic differs from an infant,
who must sue or defend by guardian or next friend.? In
most states, however, the courts probably have statutory
authority to see that insane parties are properly repre-
sented either by their general guardians or by guardians
specially appointed for the action,? and in some the
statutes require an insane person under guardianship to
appear by guardian.‘

664. Same—Action for Divorce.

The capacity of a lunatic to prosecute an action for
divorce is generally denied for such a proceeding implies
volition as to a status or relation of the highest impor-
tance, with respect to injuries which a sane party might
waive, and which another cannot waive for him com-
patibly with the very nature and policy of divorce.®

The right of a sane plaintiff to sue an insane defendant,
for divorce, however, for wrongs committed while sane is
generally conceded, though the courts proceed with much
caution in such cases and in some states a decree will

1 The noted Harry K. Thaw case in New York, 1907-9, is directly
in point. See In re Thaw, 122 N. Y. Supp. 970; 2 Bish. New Crim.
Pro. 6876, and cases cited; 1 Whart. & Stille’s Med. Jur. (4th Ed.), sec.
770; Underwood »v. People, 32 Mich. 1, 20 Am. R. 633.

2 Beverley’s Case, 2 Coke’s Rep., Pt. IV, 568; Wiesmann v. Donald,
125 Wis. 600, 2 L. R. A. (N. 8.) 961, and cases cited; McKenna ».
Garvey, 191 Mass. 96, 100, and cases cited.

3 See Wiesmann v. Donald, supra.

4See Miller ». Hart, 135 Ind. 201.

’ See 2 Nels. Div. & Sep., sec. 729; Mohler ». Shank’s Est., 93 Ia.
278, 57 Am. St. R. 274, 34 L. R. A. 161. See also note to Haines ».
West, 130 Am. St. R. 853. Compare Baker 2. Baker, 6 Prob. Div. 12.
ACTIONS BY AND AGAINST THE INSANE 583

not be granted unless it appears that there is no reason-
able probability of recovery.!

666. Service of Process upon Lunatics.

At common law service of process was made upon luna-
tics the same as upon those of sound mind.? Special
modes of service upon lunatics, however, are in most
states provided by statute. Usually service must be upon
the guardian or upon both guardian and ward. Where
the lunatic is confined in an asylum, service in the pres-
ence of the keeper or physician in charge, or upon the
latter in case personal service upon the lunatic would be
injurious to him, is commonly required.

666. Effect of Judgments Against Lunatics.

Ordinarily a judgment against a lunatic is valid and
binding where all jurisdictional requirements have been
met. This is particularly so where it was rendered after
hearing, and the lunatic was properly represented by
guardian, general or special. In no case where the court
had jurisdiction of the parties and the subject-matter can
a judgment against a lunatic be collaterally attacked. In
the absence of statute the judgment is at most irregu-
lar, and subject to be vacated in a direct proceeding.
Whether this should be by motion, writ of error or in
chancery has not been uniformly determined.? In any
event it seems that equity under its general jurisdiction
to relieve against fraud and for the protection of those
incapable of properly conserving their own rights, has juris-
diction to relieve a lunatic against an unjust judgment
to which he might have interposed a valid defense.*

1See Mohler ». Shank’s Est., supra; Harrigan v. Harrigan, 135
Cal. 397, 87 Am. St. R. 118, and cases cited in the opinion and notes;
State ». Murphy, 29 Nev. 149.

2 Taylor v. Lovering, 171 Mass. 303.

’See Lamprey v. Nudd, 29 N. H. 299; Allison ». Taylor, 6 Dana
(Ky.), 87, 832 Am. D. 68. Compare Withrow ». Smithson, 37 W. Va.
757,19 L. R. A. 762.

4 Withrow v. Smithson, supra.
CHAPTER LIV

EVIDENCE OF INSANITY—INSANE PERSONS AS
WITNESSES

667. In General—Presumption of Sanity.

It is not proposed to treat of evidence in general, even
where the issue is insanity or mental incapacity, except
in so far as seems necessary to show the influence of pre-
sumptions and some other special rules touching proof
that are peculiar to the subject. As a general rule sanity,
being the normal condition of the mind, is presumed
until the contrary appears, a rule applicable both to
civil and criminal cases. The burden of proving insanity
is therefore upon the party alleging it.1

A considerable number of cases appear to hold, how-
ever, that the burden of proving testamentary capacity
is upon the proponents of a will, though the weight of
authority seems to regard testamentary capacity as gov-
erned by the general rule, and treats the burden of prov-
ing incapacity as on the contestants, at least when a prima
facie case of capacity and due execution are made out
by the attesting witnesses. ?

668. Insanity Once Proved—Presumption of Continu-
ance.

If permanent or habitual insanity is once shown to
exist, however, its continuance is presumed, and one

1 Delafield v. Parish, 25 N. Y. 97; Argo v. Coffin, 142 Ill. 368, 34
Am. St. R. 86; Titlow ». Titlow, 54 Pa. 216, 93 Am. D. 691; Brown v.
Ward, 53 Md. 376, 36 Am. R. 422; Allen ». Griffin, 69 Wis. 529. See
post, sec. 670, as to rules peculiar to criminal cases.

?See 3 Elliott on Ev., sec. 2689; Prentice v. Bates, 93 Mich. 234,
and notes to that case in 17 L. R. A. 494, where the conflict is dis
cussed. See also Hopkins ». Wampler, 108 Va. 705.

584
EVIDENCE OF INSANITY 585

who would take advantage of a restoration to reason
must show that it has taken place, at least so far as to
capacitate the party with respect to the particular act
or transaction in question.! If, on the other hand, the
insanity proved appears to be of a temporary or transi-
tory nature, it will not be presumed to continue, and
must be shown by those who take advantage of it to have
continued or to have recurred so as to affect the capacity
of the party for the act alleged to be invalidated by it.?
Still, where one is usually insane, or insane a considerable
portion of the time, the burden is upon those who allege
it to show that he acted in a lucid interval.’

669. Character of Act As Evidence.

While the character of the act is seldom conclusive as
to the sanity or insanity of the actor, it may be taken
into account in connection with other facts and cir-
cumstances as bearing upon the question of mental
soundness and capacity, both in criminal 4 and civil cases.®

670. Rules Peculiar to Criminal Cases.

While the burden is upon the state to prove guilt beyond
a reasonable doubt, still the presumption of sanity and
responsibility makes it incumbent upon the defendant,
even in criminal cases, to produce evidence of such in-
sanity as will excuse his conduct under rules already laid
down.® As to the amount of evidence that must be ad-
duced the decisions are conflicting. In a few states it

1 Lessee ». Hoge, 1 Pet. (U. 8.) 183; McMasters ». Blair, 29 Pa.
298; Boyd v. Eby, 8 Watts (Pa.), 66; Terry v. Buffington, 11 Ga. 337,
56 Am. D. 423; Armstrong v. State, 30 Fla. 170, 204, 17 L. R. A. 484,
and note. Senile dementia from its very nature will be presumed. to
continue. Bever v. Spangler, 93 Ia. 576.

2 Prentice v. Bates, 93 Mich. 234, 17 L. R. A. 494, and note.

3 Ripley v. Babcock, 13 Wis. 474; Jackson v. King, 4 Cowen (N. Y.),
207, 15 Am. D. 355.

4 See People v. Messersmith, 61 Cal. 246, and cases cited in 2 McLain’s
Crim. Law, sec. 167.

5 Leach ». Burr, 188 U. S. 510; Slingloff ». Brunner, 174 Ill. 561.

6 See ante, secs. 659 et seq. As to the meaning of burden of proof in
586 EVIDENCE OF INSANITY

has been held that the insanity must appear beyond a
reasonable doubt,! while in England and in many of our
states a preponderance of the evidence is apparently re-
quired.? In a considerable number of jurisdictions, how-
ever, it is sufficient that there is, upon the whole evidence,
a reasonable doubt as to the mental responsibility of the
accused.®

671. Same—lInquisition and Finding of Lunacy—
Guardianship.

A judicial finding of insanity is usually evidence more
or less conclusive of the fact of insanity during the period
of time covered thereby. The rules as to contracts and
conveyances have already been stated. A finding that
one is insane and his commitment to an asylum is not
conclusive of testamentary incapacity, though it is usu-
ally held prima facie evidence thereof,® and the same has

this connection, see 1 McLain’s Crim. Law, sec. 175; 4 Wigm. on Ev.,
sec. 2501.

1State v. Hansen, 25 Oreg. 271, decided under statute; State ».
Spencer, 1 Zab. (N. J.) 196.

2 Reg. v. Layton, 4 Cox C. C. 149; McNagten’s Case, 10 Cl. & F.
200; Boswell v. State, 63 Ala. 308, 35 Am. R. 20, and note; State v. Rede-
meier, 71 Mo. 173, 36 Am. R. 462; People ». Allender, 117 Cal. 81;
Kelch »v. State, 55 Ohio St. 146, 60 Am. St. R. 680, 39 L. R. A. 737,
and note; State v. Trout, 74 Ia. 545, 7 Am. St. R. 499; State v. Scott, 49
La. Ann. 253, 36 L. R. A. 721, and note; and cases cited and overruled
in the opinion.

3 Davis v. U. S., 160 U. S. 469; People v. Garbutt, 17 Mich. 9, 22,
97 Am. D. 162, and note; Maas v. Territory, 10 Okla. 714, 53 L. R. A.
814; Plake v. State, 121 Ind. 433, 16 Am. St. R. 408; State v. Lee, 69
Conn. 186; King v. State, 91 Tenn. 620; Ford v. State, 73 Miss. 734,
35 L. R. A. 117, and note; Duthey v. State, 131 Wis. 178, 189, 10 L. R.
A. (N. 8.) 1032, and note; People v. Tobin, 176 N. Y. 278. See State v.
Snyder, 56 Neb. 309; Hornish v. People, 142 Ill. 620, 18 L..R. A. 237;
State v. Wright, 134 Mo. 404. See generally on this point State v.
Scott, supra, and notes thereto in 36 L. R. A. 721.

4See ante, secs. 639 et seq.; 646 et seq.

’ See ante, secs. 653-654. On the other hand, a refusal to find that
the testator is so far insane as to require a guardian is not conclusive
as to his testamentary capacity. Manley’s Exr. v. Staples, 62 Vt. 163.
INSANE AS WITNESSES 587

been held of a finding that the testator was incompetent
to have the management of his own affairs, and the ap-
pointment of a guardian or committee of the person and
estate.t_ The record of a commitment to an asylum after
a regular trial on the question of insanity is competent
evidence in a subsequent prosecution for crime, though
it is not conclusive as to criminal capacity at the time
the act was committed.’

INSANE PERSONS AS WITNESSES

672. In General—Witness Insane when Called or Fact
Transpired—-Effect of Finding of Lunacy.

One who is plainly an idiot is in no case a competent
witness,? and one permanently and generally deranged
is equally incompetent to testify. But though a witness
be insane, if he still has sufficient reason and understand-
‘ing to appreciate the nature of an oath, to retain in mem-
ory the facts about which he is called to testify, and to
give a correct account of them, he is competent.’ The
question whethér the witness has this degree of reason
is for the court, but it is for the jury to determine how
much credence shall be given to his testimony.®

Though one is insane at the time of the trial, his prior
declarations may be given in evidence if part of the res

1See 1 Redf. on Wills, 124, 125, and cases cited. Will of Slinger, 72
Wis. 22, 26; Stewart v. Lispenard, 26 Wend. (N. Y.) 255.

2 Wheeler v. State, 34 Ohio St. 394, 32 Am. Rep. 372; Townsend ».
Pepperell, 99 Mass. 40.

3 See Coleman v. Com., 25 Gratt. (Va.) 865, 18 Am. R. 711; Tucker
». Shaw, 158 Ill. 326.

4 Livingston v. Kiersted, 10 Johns. (N. Y.) 362; Coleman v. Com.,
supra.

5 Reg. v. Hill, 5 Cox. Cr. C. 259, 5 Eng. L. & Eq. 547; Dist. of Colum-
bia v. Armes, 107 U. 8. 519; Coleman v. Com., supra; Worthington ».
Mencer, 96 Ala. 310, 17 L. R. A. 407; Holcomb v. Holcomb, 28 Conn.
177; Dickson ». Waldron, 135 Ind. 507, 41 Am. St. R. 440, 24 L. R. A.
483.

6 Reg. v. Hill, supra; Holcomb v. Holcomb, supra; Walker v. State,
97 Ala. 83.
588 INSANE AS WITNESSES

gestze, unless he is shown to have been insane when the
fact in controversy transpired.1_ The fact that there has
been a judicial finding of insanity does not disqualify
a witness, though it will ordinarily be sufficient to throw
upon the party offering him the burden of showing his
competency.’ If the witness is sane at the time his testi-
mony is offered it makes no difference with his competency,
as a rule, that he was insane when the facts in issue tran-
spired, though the fact of such insanity and its nature
and extent may be shown to affect his credibility. But
if the condition of the witness at the time of the event
appears to have been such that he was without power
to receive or retain rational impressions, his testimony
will of course be excluded.‘

1 State v. Smith, 26 Wash. 354.

2 Covington v. O’Meara, 119 S. W. (Ky.) 187 (1909); Pittsburg, etc.,
R. Co. ». Thompson, 82 Fed. Rep. 720.

* Holcomb v. Holcomb, 28 Conn. 177; Sarbach ». Jones, 20 Kan. 497.
Compare State ». White, 10 Wash. 611, and see Tex. Code Cr. Proc.,
Art. 730, subs. 1, 2.

“Worthington ». Mercer, 96 Ala. 310, 17 L. R. A. 407; Holcomb ».
Holcomb, supra. Compare Sarbach v. Jones, supra.
CHAPTER LV

DRUNKARDS, SPENDTHRIFTS AND PERSONS BEREFT OF
SPECIAL SENSES

673. Drunkenness in General—Definitions.

The effect of drunkenness upon the validity of marriage
and as ground for divorce has already been considered.!
The matters for discussion here include the guardianship
of habitual drunkards and the effect of drunkenness upon
the civil and criminal responsibility of the drunkard.

Drunkenness, both in its popular and in its generally
accepted legal sense, refers to intoxication produced by
alcoholic drinks.? Statutes in some states, however, have
enlarged its meaning to include the effects of opium, co-
caine and similar drugs. There is no doubt, however,
that drug intoxication, as by opium or cocaine, may have
the same effect as ordinary drunkenness in destroying
contract and testamentary capacity and responsibility
for crime.®

674. Same—Habitual Drunkards.

An habitual drunkard may be generally defined as one
who, through frequent and excessive drunkenness, has
acquired a fixed habit of inebriety involving such loss
of self-control as renders him dangerous to himself or

1See ante, secs. 44, 373.

2 See Com. v. Whitney, 11 Cush. (Mass.) 477; State v. Kelley, 47
Vt. 294; Youngs v. Youngs, 130 Ill. 230, 17 Am. St. R. 313, 6 L. R. A.
548, and note. That this is its meaning in divorce statutes, see ante,
sec. 373.

’ Edwards ». State, 38 Tex. Crim. App. 386, and note thereto in 39
L. R. A. 262. See Rev. Code N. Dak. 1899, sec. 1802, R. S. Okla.
1903, sec. 3167; In re House, 23 Col. 87, 33 L. R. A. 832.

089
590 GUARDIANSHIP OF DRUNKARDS

others or incapable of managing his own affairs. Nu-
merous other definitions practically to the same effect have
been offered. by the courts, none of which are altogether
satisfactory,1 and in some states the definition is stat-
utory or is influenced by statute in its application to par-
ticular circumstances.”

The terms “habitual drunkard” and ‘“‘common drunk-
ard” are practically synonymous, though ‘‘common
drunkenness” involves the idea, not merely of habit,
but of publicity and consequent scandal and annoyance
to the community and is indictable under statutes if not
at common law.*®

675. Inquisition—Appointment of Guardian or Com-
mittee.

It seems that equity has jurisdiction over habitual
drunkards similar to that possessed over persons non
compotes mentis, and may exercise it in this country in
the absence of statutes to the contrary.‘ Generally by
statutes, jurisdiction to appoint guardians for habitual
drunkards is vested in courts of probate, and is analogous
to that exercised over the insane, and the proceedings
for adjudication and appointment are identical or similar.
Still, it seems that unless the habitual drunkard is also
insane, or is dangerous to himself or others, the courts
have no power to interfere with his personal liberty or
to commit him to an asylum or similar retreat against
his will, and then only as a result of a regular judicial

1See Com. ». Whitney, 5 Gray (Mass.), 86; Magahay ». Magahay,
35 Mich. 210; Gourlay ». Gourlay, 16 R. I. 705; Wright ». Fisher, 65
Mich. 279, 8 Am. St. R. 886.

2 As to divorce see ante, sec. 373.

+See Tipton v. State, 2 Yerg. (Tenn.) 542, holding public drunken-
ness indictable at common law; 4 Bl.Com. 41. Compare State 2.
Deberry, 5 Ired. (N. Car.) 371; State v. Locker, 50 N. J. L. 512. See
Com. v, McNamee, 112 Mass. 286; Com. ». Whitney, 5 Gray (Mass.),
85, 86; 1 Bish New Cr. Law, sec. 399.

‘ Nailor v. Nailor, 4 Dana (Ky.), 341; Corrie’s Case, 2 Bland (Md.),
488. /
GUARDIANSHIP OF DRUNKARDS 591

proceeding in which he has an opportunity to be heard.!
The constitutionality of acts providing for the treatment
of inebriates at public expense in private institutions
has been differently decided.? '

676. Same—Effect of Finding and Appointment of
Guardian.

The effect of a finding that one is an habitual drunkard
is in most states practically the same as a finding of lunacy.
If followed by the appointment of a committee or guard-
ian of the estate, the drunkard becomes non sui juris so
far as his estate is concerned, at least in the state where the
appointment is had. The committee or guardian there-
after has control of the estate of the drunkard,‘ and his
conveyances and contracts for non-necessaries, while the
guardianship continues, are usually void.’ The powers
and duties of the guardians or committees of the estate are
elsewhere discussed.* So far as the person of the drunkard
is concerned, however, the powers of the committee or
guardian are quite limited. No restraint can be imposed
upon his liberty except so far as may be necessary to re-
strain his indulgence, though the guardian or committee
has aright, it seems, in the exercise of a sound discretion,
subject to the control and advice of the court, to select a
proper place of residence for him.’

1 State ex rel. Larkin v. Ryan, 70 Wis. 676; In re Baker, 29 How. Pr.
(N. Y.) 485; In re Janes, 30 How. Pr. (N. Y.) 446; People v. St. Sav-
iour’s Sanitarium, 34 N. Y. App. Div. 363, 56 N. Y. Suppt. 431.
See Freund’s Police Power, sec. 227.

2 See People v. Brooklyn, 152 N. Y. 400, and cases cited and dis-
cussed.

? Rannells v. Gerner, 80 Mo. 474; L’Amoreaux ». Crosby, 2 Paige
(N. Y.), 422, 22 Am. D. 655; Cockrill ». Cockrill, 92 Fed. 811; Mc-
Cormick ». Littler, 85 Ill. 64,28 Am. R.610. See Motley ». Head, 43
Vt. 633.

4 Devin »v. Scott, 34 Ind. 67; post, sec. 679.

5 See ante, secs. 644, 646; Devin v. Scott, supra.

6 See ante, sec. 638, 644, 646; Devin v. Scott, supra.

7 See In re Heller, 3 Paige (N.Y.), 199; In re Lynch, 5 Paige (N.Y.),
120; Lamar v. Micou, 112 U, 8, 472,
592 CONTRACTS OF DRUNKARDS

677. Removal of Disability.

Actual, voluntary and radical reformation, satisfac-
torily shown, seems to be the only ground upon which an
habitual drunkard may be relieved of his disability.!_ In
some states the period of abstinence is fixed by statute.’

678. Contracts of Drunkards and Drunken Persons.

So far as contracts are concerned, a drunken person is
practically upon the footing of one temporarily insane,
so that his contracts entered into while intoxicated are
voidable merely at his option, and hence may be ratified
by him when he recovers his faculties. Mere partial
intoxication, however, is not sufficient to render a con-
tract voidable, unless fraud was practiced or some other
advantage was taken of the drunkard by the party seek-
ing to benefit thereby, or unless such partial intoxication
was brought about by him with a view to the bargain.‘
The burden of proving the fairness of a transaction entered
into with one known to be partially intoxicated, however,
has been held to be upon the party seeking to enforce it.®
To render a contract void or voidable on the ground of
drunkenness alone, it must be so pronounced at the time
of contracting as to practically obliterate the reason and
understanding, and to preclude the drunkard from ap-
preciating the nature of his contract and its probable
consequences. In other words, it must render him for

1In re Hoag, 7 Paige (N. Y.), 313; In re Weis, 16 N. J. Eq. 318.

* Devin v. Scott, supra. See In re Hoag, supra.

32 Kent’s Com. 451; Barrett ». Buxton, 2 Aiken (Vt.), 167, 16 Am.
Dec. 691; Moulton v. Chamroux 2 Exch. 487, affirmed in 4 Exch. 17;
Carpenter v. Rodgers, 61 Mich. 384, 1 Am. St. R. 595, and cases cited;
Bush »v. Breinig, 113 Pa. 310, 57 Am. R. 469; Wright v. Fisher, 65 Mich.
279, 8 Am. St. R. 886; Johnson v. Harmon, 94 U. 8. 371, 382. That
the contract is void, see Gore v. Gibson, 13 M. & W. 623, 9 Jur. 140.

“Knott v. Fidyman, 86 Wis. 164; Calloway v. Wetherspoon, 5 Ired.
Eq. (N. Car.) 508; Birdsong ». Birdsong, 2 Head (Tenn.), 289; Wright
v. Waller, 127 Ala. 557, 54 L. R. A. 440, 445, and note; Murray »v. Car-
lin, 67 Tl. 286.

5 Holland v. Barnes, 53 Ala. 83, 25 Am. R. 595.
CONTRACTS OF DRUNKARDS 593

the time being non compos mentis.! If it has this effect
it makes no difference that the drunkenness was volun-
tary, unless the party got drunk with a view to the con-
tract and with intent to avoid it if it proved disadvan-
tageous to him.?

679. Same—Drunkard under Guardianship—Neces-
saries.

The existence of habitual drunkenness does not change
the application of the foregoing rules, unless the drunkard
is under guardianship as a person unfit to have the care
and management of his own estate.’ If this is the case,
his conveyances and his contracts during guardianship,
save contracts for necessaries, are void by force of statutes
in several states, if not at common law, even though he
was sober at the time of contracting.‘

A drunken person, whether under guardianship or not,
is clearly liable for necessaries upon substantially the
same principles as infants and the insane.®

1Gore v. Gibson, supra; Wade v. Calvert, 2 Mill (8. C.), 27, 12 Am.
D. 652; Caulkins v. Fry, 35 Conn. 170; Bush v. Breinig, supra; Wright
v. Fisher, 65 Mich: 279, 8 Am. St. R. 886; Johns v. Fritchey, 39 Md. 259;
Joest v. Williams, 42 Ind. 565, 138 Am. R. 377; Burnham v. Burnham,
119 Wis. 509, 100 Am. St. R. 895; South v. Williamson, 8 Utah, 219;
Johnson v. Harmon, 94 U.S. 371, 397; Wright v. Waller, supra, 54 L.
R. A. 440, and note. Whether the reason and judgment were thus
obliterated is, in actions at law, naturally a question for the jury. One
who agrees when sober to sign a contract, cannot avoid it on the
ground that he was drunk at the time of signing. Page v. Krekey,
63 Hun (N. Y.), 629, 21 L. R. A. 409. See also Hawley v. Howell, 60
Ta. 79.

? French v. French, 8 Ohio, 215; Bush v. Breinig, supra; 1 Pars. on
Cont. (7th Ed.) 384.

3 See Wright v. Fisher, 65 Mich. 279, 8 Am. St. R. 886; Burnham ».
Burnham, 119 Wis. 509, 514, 100 Am. St. R. 895. ‘

4See Statutes in Minn., Mich., Neb., Oreg., Wis. See also Conn.
Gen. Stat. 1902, sec. 1833, Mass. R. L. 1902, Chap. 145, sec. 8. See
ante, secs. 644, 646; Lynch v. Dodge, 130 Mass. 458; Wadsworth ».
Sharpsteen, 8 N. Y. 388, 59 Am. D. 499. See Jones ». Semple, 91 Ala.
182, construing Ala. Code, 2502-03.

5 Baxter v. Earl of Portsmouth, 5 B. & C. 170, 11 E. C. L. 415; Gore

38
594 CONTRACTS OF DRUNKARDS

680. Ratification and Avoidance of Drunkards’ Con-
tracts.

The general principles applicable here are not essentially
different from those that obtain in cases of infancy and
insanity. A drunkard who wishes to rescind his voidable
contract must act promptly upon recovering his reason,*
and must restore or offer to restore whatever of value
he received under the contract,? though if he lost or
squandered it while still intoxicated a return of its equiv-
alent is probably excused, for one who deals with a
drunken person can hardly claim, as in the case of a luna-
tic, that he dealt bona fide.

The right of avoidance is personal to the drunkard, or
his guardian or representatives.’

681. Same—Rights of Bona Fide Purchasers.

The contracts and conveyances of one insane in the
ordinary sense are voidable, as a rule, even as against
bona fide purchasers for value,‘ and this rule applies even
to the holder of his commercial paper in due course.®
But voluntary drunkenness, being in some sense the fault
of the drunkard, the courts show little inclination to
restore his property or otherwise protect him after the
rights of bona fide purchasers have attached, unless he
was under guardianship when the transaction took place.®

v. Gibson, 13 M. & W. 625; Bush v. Breinig, 113 Pa. 310, 57 Am. R.
469; Richardson v. Strong, 35 N. C. 106, 55 Am. D. 430.

1 Williams v. Inabnet, 1 Bail L. (S. Car.) 343; McGuire v. Callaghan,
19 Ind. 128. Compare Berkley v. Cannon, 4 Rich. L. (S. Car.) 136.

2 Joest v. Williams, 42 Ind. 565, 13 Am. R. 377; Hawley ». Howell,
60 Ia. 79.

3 Doe v. Harter, 1 Ind. 427, 2 Id. 252; Carpenter ». Rodgers, 61
Mich. 384, 1 Am. St. Rep. 595.

4 See ante, sec. 647.

5 See ante, sec. 642.

‘Shaw v. Thackeray, 17 Jur. 1045; Campbell ». Breckenridge, 8
Blackf. (Ind.) 471; Wadsworth v. Sharpsteen, 8 N. Y. 388, 59 Am. D.
499. That this is the rule as to commercial paper see Miller v. Finley,
26 Mich, 249, 12 Am. R. 306; McSparren v. Neeley, 91 Pa. 17; State
WILLS OF DRUNKARDS—TORTS 595

682. Wills of Drunken Persons.

Drunkenness destroys capacity to make a will only
where it disables the testator from comprehending the
nature and effect of his act under the rules previously
stated for the insane.! If it has this effect, however, it
makes no difference whether his lack of mental capacity
was due to alcohol or to other drugs or narcotics.? But
the mere fact that one is an habitual drunkard, or even
that he is under guardianship as such, does not invalidate
his will unless he was drunk at the time of making it,’ or
his excesses had brought about acute alcoholic mania, or
some other form of insanity under which he was laboring
at the time of the testamentary act. The burden of
showing actual drunkenness or insanity when the will
was made is on the contestants, at least where the sub-
scribing witnesses testify to the due execution of the will
and the testator’s competency at the time.*

683. Torts by and Against Drunken Persons.

A drunken person is liable for his torts, at least to the
same extent as a lunatic or a fool. But the defense of
drunkenness is not a favored one, and drunkenness of
whatever degree could hardly be shown in bar of a tort
action, unless, perhaps, actual malice is an ingredient of
the wrong.’ So, the drunkard is liable for negligence,® or

Bank ». McCoy, 69 Pa. 204, 8 Am. R. 246. Compare Calkins v. Fry, 35
Conn. 170.

1 See ante, secs. 650 et seq.; Peck v. Cary, 27 N. Y. 9, 84 Am. D. 220;
Gardner v. Gardner, 22 Wend. (N. Y.) 526, 34 Am. D. 340; In re Lee’s
Will, 46 N. J. Eq. 193.

2 In re D’Avignon, 12 Col. App. 489.

3 Peck ». Cary, supra; Harrison v. Bishop, 131 Ind. 161, 31 Am. St.
R. 422. That one is under guardianship as an habitual drunkard is
prima facie evidence of testamentary incapacity. Lewis v. Jones, 50
Barb. (N. Y.) 645, and authorities cited and discussed.

4In re Lee’s Will, 46 N. J. Eq. 193, 200; ante, sec. 667.

5 Welty v. Indianapolis, etc., R. R. Co., 105 Ind. 55; Hubbard ».
Mason City, 60 Ia. 400; McKee »v. Ingalls, 5 Ill. 30. See Gates ».
Meredith, 7 Ind. 440.

6 Cassady v. Magher, 85 Ind. 228.
596 CRIMES OF DRUNKARDS

for assault, or other forcible injury to person or prop-
erty.

Though intoxication is no defense to an action for defam-
ation, drunkenness at the time of speaking slanderous
words may doubtless be shown in mitigation of damages,
and might be so gross and so obvious to third persons as
to reduce the verdict to a mere nominal sum.'-

While intoxication is not negligence per se, it may be
considered in determining whether a person injured by
the negligence of another was himself guilty of negligence;
and if the intoxication actually contributed to the injury,
no recovery can be had, for one cannot voluntarily render
himself incapable of exercising due care and hold others
responsible for the consequences of his inability to do so.?
Yet one who is aware of the presence of an intoxicated
person must use such care not to injure him as his known
condition reasonably demands.’

684. Crimes of Drunken Persons.

Voluntary drunkenness, generally speaking, is no de-
fense to a criminal prosecution. Indeed it has sometimes
been said to aggravate the offense, though this is hardly
true unless it is understood in a moral rather than a legal
sense.‘ Evidence is, of course, admissible to show that
at the time of an alleged offense the defendant was so
drunk as to be physically incapable of committing it.*

1See ante, sec. 65; Gates v. Meredith, 7 Ind. 440; Reed v. Harper,
25 Ia. 87, 95 Am. D. 774; Howell ». Howell, 32 N. C. 84. But see Mix
v. McCoy, 22 Mo. App. 488.

*1 Shearm & Redf. Neg., secs. 93, 94, 110; Thorp v. Brookfield, 36
Conn. 320; Smith v. Norfolk, etc., R. R. Co., 114 N. C. 728, 25 L. R. A.
287. See Fitzgerald v. Weston, 52 Wis. 355.

3 Isbell v. N. Y., ete., R. R. Co., 27 Conn. 393, 71 Am. D. 78, 81; Ed-
gerly v. Union St. Ry., 67 N. H. 312; Smith v. Norfolk, etc., R. R.
Co., supra.

“Compare Beck »v. State, 76 Ga. 452, and Haile v. State, 11 Humph.
(Tenn.) 154.

5 Ingalls v. State, 48 Wis. 647.
CRIMES OF DRUNKARDS 597

685. Where Specific Intent, Malice or Deliberation
an Ingredient of Crime.

Where a specific intent is an essential ingredient of a
crime or determines its grade or degree, intoxication so
great as to preclude the existence of such intent may be
a complete defense, or may reduce the degree of guilt.
Thus, in larceny the offense does not consist in the mere
taking, but in taking with intent to appropriate as against
the owner; and if it is shown that at the time of the taking
the defendant was too drunk to entertain such intent, he
must be acquitted.! By the common law, all criminal
homicides were either murder or manslaughter, and de-
grees of these offenses were unknown. ‘The former in-
volved malice aforethought, but the latter did not, and
embraced every other felonious killing, as in the heat of
passion or in a sudden quarrel, or upon sudden provoca-
tion.? But voluntary drunkenness, it seems, will not reduce
murder to manslaughter at the common law, where the
offense would be murder in a sober person, for it is reasoned
that one voluntarily drunk, if still in sufficient posses-
sion of his faculties to perform a voluntary act, should
be held liable for its consequences, and the law will
impute to him the malice which is a necessary ingre-
dient of murder. In other words, one who voluntarily
puts himself in a condition to have no control of his
actions must be held to intend the consequences of his
deeds.?

1 People v. Walker, 38 Mich. 156; State ». Schingen, 20 Wis. 74;
O’Grady v. State, 36 Neb. 320. Where one accused of passing counter-
feit, money is too drunk to know that it is counterfeit, though a sober
man would have known it, no conviction can be had. See also Whit-
ten v. State, 115 Ala. 72.

2 See 2 Bish. New Crim. Law, sec. 623.

3 Springfield v. State, 96 Ala. 81, 38 Am.-St. R. 85; Shannahan ».
Com., 8 Bush. (Ky), 464, 8 Am. R. 465; U. 8. ». Drew, 5 Mason
(U. S.), 28; Com. ». Hawkins, 3 Gray (Mass.), 463; People v. Garbutt,
17 Mich. 9, 97 Am. D. 162, and note; State v. Avery, 44 N. H. 392;
People v. Rogers, 18 N. Y. 9, 72 Am. D. 484; Flanagan ». People, 86
N, Y. 554, 40 Am. R. 556.
598 CRIMES OF DRUNKARDS

686. Homicide under Statutes.

But this rule has been broken in upon in most states
by statutes redefining murder and manslaughter accord-
ing to several degrees. Thus, murder in the first degree,
according to most statutes, requires express malice or a
premeditated design to effect the death of the person
killed or of some other person, as distinguished from the
implied malice of the common law. Under many statutes,
therefore, the intoxication of the defendant may be
shown upon the question whether he was in such condition
of mind as to be able to form the intent to kill, essential
to murder in the first degree; + and so as to his ability to
form any other specific intent that may be an ingredient of
the crime, as appears in the preceding section. It should
be remembered, however, that the mere intoxication of
the defendant does not excuse or palliate his acts if he
is still capable of forming a specific intent; ? and this is
clearly so where the intent was formed while sober though
acted upon while drunk.’

687. Acts done in Self-Defense—Heat of Passion.

If the defendant was sufficiently sober to form an intent
to kill, it is no defense that he acted in what, owing to his
intoxication, he regarded as necessary self-defense, if he
acted unreasonably when judged from the standpoint of a
sober man.‘ So it is held where heat of passion is alleged
as reducing the grade or degree of crime, it cannot avail
if the provocation was not adequate to overcome the
self-control of the average sober man.*® If such provoca-
tion had been given, however, evidence of drunkenness is

1 Hopt. v. State, 104 U. S. 631; People v. Mills, 98 N. Y. 176.

? People v. Fish, 125 N. Y. 136; Marshall v. State, 59 Ga. 154; Com.
v. Dudash, 204 Pa. 124; Keenan v. Com., 44 Pa. 55, 84 Am. D. 414.

3 State ». Robinson, 20 W. Va. 713, 43 Am. R. 799.

‘ Springfield v. State, 96 Ala. 81, 38 Am. St. R. 85; State ». Davis,
52 W. Va. 224.

’Com. ». Hawkins, 3 Gray (Mass.), 463; Keenan v. Com., 44 Pa.
55, 84 Am. D. 414; Haile v. State, 11 Humph. (Tenn.) 154.
CRIMES OF DRUNKARDS 599

competent to show that the defendant acted in the heat ~
of passion rather than from malice or revenge.!

688. Involuntary Drunkenness.

Intoxication caused by the fraud or stratagem of others,
or due to the mistake of a physician, or even of the ac-
cused, would seem, so far as criminal responsibility is
concerned, to put the defendant substantially upon the
footing of one technically insane.’

689. Insanity Caused by Intoxicants or Drugs.

Where one accused of crime suffered at the time of its
commission from acute or chronic insanity, though due
to the habitual use of intoxicants or drugs, as distinguished
from their immediate effects, he is deemed legally insane,
and his criminal responsibility will be determined accord-
ingly. Thisrule is well settled both with respect to chronic
insanity * and to acute alcoholic mania or delirium tremens,
so-called.*

The condition known as dipsomania, in which the vic-
tim is overtaken at intervals with an overmastering de-
sire to drink, amounting to an irresistible impulse, has
given rise to some difficulty. If the dipsomaniac, while
under the influence of liquor as the result of what high
medical authority would consider his malady, commits a
crime, it is generally held that he is responsible as a
drunken person and not as a lunatic, unless he is other-
wise insane.°®

1 People v. Rogers, 18 N. Y. 9, 72 Am. D. 484.

2 Bartholomew ». People, 104 Ill. 601, 44 Am. R. 97.

’ United States v. Drew, 5 Mason (U. 8.), 29; Wagner v. State, 116
Ind. 181; Kenny »v. People, 31 N. Y. 330; State v. Potts, 100 N. Car.
457.

4 Reg. v. Davis, 14 Cox C. C. 563; United States ». Drew, supra;
Maconnehey ». State, 5 Ohio St. 77. Compare State v. Haab, 105
La. 230.

’ State v. Potts, 100 N. Car. 457; Flanigan v. People, 86 N. Y. 554,
40 Am. R. 556; Com. ». Gilbert, 165 Mass. 45. Contra State 2. Pike,
49 N. H. 399, 6 Am. R. 533. See State ». Johnson, 40 Conn. 136.
Compare ante, sec. 660.
600 SPENDTHRIFTS

Where an insane person commits a crime while volun-
tarily drunk, it is held that he must rest his defense upon
the insanity and not upon the drunkenness.’

690. Drunkards as Witnesses.

The fact that one is an habitual drunkard, even though
he is under guardianship as such, does not disqualify
him as a witness, unless he is also insane or is intoxicated
when he is called.2 But if a witness be under the influence
of liquor or drugs when offered, the court may determine
his competency on its own view and examination with
or without the aid of witnesses,’ and if he is too befogged
to appreciate his obligations as a witness or to testify
understandingly, he should be excluded, at least for the
time.* While intoxication at the time of the event re-
garding which a witness is offered does not destroy his
competency, it naturally impairs his credibility, and may
be shown for that purpose,® though if his testimony is
corroborated or his recollection appears distinct and clear,
he is entitled to belief.®

SPENDTHRIFTS

691. In General—Guardianship—Contracts.

Though the term spendthrift seems not to have been
judicially defined, a spendthrift may be generally defined
as one who, by reason of some idiosyncrasy or peculiarity
of character or habits, whether intemperate or not, is so
plainly incapable of managing his own affairs that he is

1 Choice v. State, 31 Ga. 424; State v. Kraemer, 49 La. Ann. 766,
62 Am. St. R. 664.

? Gebhard ». Shindle, 15 S. & R. (Pa.) 236; Thayer v. Boyle, 30
Me. 475.

* Gebhard v. Shindle, supra; Hartford v. Palmer, 16 Johns. (N. Y.)
143; Gould ». Crawford, 2 Pa. 89; State ». White, 10 Wash. 611.
Compare Cannady ». Lynch, 27 Minn. 435.

‘ 4Hartford v. Palmer, supra.
5 Pones v. State, 43 Tex. Crim. App. 201.
* State v. Castello, 62 Ia. 404; Pones ». State, supra.
SPENDTHRILTS 601

reasonably certain, if left to his own devices, to so waste
or misapply his income or means as to render himself or
his legal dependents a public charge.!

The guardianship of spendthrifts was unknown to the
common law, but is provided for by statute in most juris-
dictions. Unless the spendthrift is a drunkard or is insane,
however, the active duties of the guardian are confined to
the estate, and he is governed in the administration of his
trust by the rules applicable to probate guardians gen-
erally.”

Ordinarily, by force of statute in most states, and per-
haps at common law in analogy to the insane, after the
appointment of a guardian for one adjudged a spend-
thrift, his contracts and conveyances while the guardian-
ship continues, are void,* though he may still be liable
for necessaries actually supplied.*

692. Spendthrift Trusts.

A spendthrift trust is a settlement of property in trust
so that it or its income cannot be alienated by the bene-
ficiary by way of anticipation or subjected to his debts
in advance of its payment tohim. No one can create such
a trust in his own favor as against his creditors,® though
it may in many states be created in favor of another,
whether actually a spendthrift or not.6 Whether, and
to what extent a spendthrift trust will be enforced in
favor of the beneficiary, and as against his creditors
however, is a question upon which courts are not agreed.

1 See Rev. Stat. Me., Chap. 67, sec. 4; Ga. Civil Code, 1895, sec. 3449;
Rev. Stat. Wis. 1898, sec. 3978; Morey’s Appeal, 57 N. H. 54; Pratt
v. Court of Probate, 22 R. I. 596; Chandler ». Simmons, 97 Mass. 508,
93 Am. D. 117.

2 See Ex parte Chace, 26 R. I. 351, 69 L. R. A. 493.

3 Chandler ». Simmons, supra; Lynch v. Dodge, 180 Mass. 458; Man-
son v. Felton, 19 Pick. (Mass.) 506; Mix v. Peck, 13 Conn. 244.

‘Chandler v. Simmons, supra; McCullis v. Bartlett, 8 N. H. 569.

5 Nolan v. Nolan, 218 Pa. 135, 12 L. R. A. (N. 8.) 369.

6 Nichols ». Eaton, 91 U. 8. 716; Broadway Bank v, Adams, 133
Mass. 170, 43 Am. R. 504.
602 PERSONS BEREFT OF SPECIAL SENSES

In fact, the whole matter properly belongs to special
treatises on equity and trusts rather than a work on the
present subject. In some states the matter is regulated
by statute.! Restraints on alienation or anticipation
have long been generally upheld in settlements for mar-
ried women, even in jurisdictions where spendthrift
trusts are invalid.?

PERSONS BEREFT OF SPECIAL SENSES

693. Deaf and Dumb—In General.

The time was when those born deaf and dumb were
legally deemed idiots.? But in modern law no presump-
tion of mental incompetency arises from the fact of con-
genital deaf-mutism, in view of the fact that some of
its victims have shown capacity, not merely for rudimen-
tary education, but for a degree of mental and moral
culture in many respects superior to that of the average
hearing person.*

694. Civil Capacity.
It follows, therefore, that the so-called deaf and dumb
have, prima facie at least, full civil capacity. They may

1See on this general subject an article in 54 Cent. Law Jour. 382;
Gray’s Restraints on Alienation (2d Ed.), 1895.

2 See ante, sec. 224; Gray’s Restraints on Alienation (2d Ed.), secs.
125 et seq., and summary. See also Jackson v. Von Ziedlitz, 136 Mass.
342, holding that a woman about to marry cannot, under a statute
making her sui juris as to her property, settle it upon herself with a
clause against anticipation so as to defeat the claims of creditors.

*1 Hale, P. C. 34; 1 Bl. Com. 304; Potts v. House, 6 Ga. 324, 50
Am. Dee. 329.

4 Barnett v. Barnett, 1 Jones’s Eq. (N. Car.) 221; State ». Howard, 118
Mo. 127; Christmas v. Mitchell, 3 Ired. Eq. (N. Car.) 535; Potts o.
House, supra. It seems that where a party is deaf, dumb and blind,
particularly from birth, a presumption of mental incapacity exists.
Brown v. Brown, 3 Conn. 299, 8 Am. Dec. 187. That the presumption
of incapacity, if it exists as to the deaf and dumb, is very weak, see
Brower v. Fischer, 4 Johns. Ch. (N. Y.) 441, and note thereto in
Ewell’s Cas. on Disabilities, 726. See also Harrod v. Harrod, 1 Kay
& J. 4, 18 Jur. 853.
PERSONS BEREFT OF SPECIAL SENSES 603

contract, make wills, and prosecute and defend without
the intervention of a guardian or next friend, unless it
appears that they are mentally incompetent in fact.!
Naturally, however, the civil acts of those bereft of spe-
cial senses, whether testamentary or contractual, are
closely scanned where fraud, duress or undue influence
are alleged.

695. As Witnesses.

In view of modern methods of educating these defect-
ives, it would seem that they should be regarded as prima
facie qualified to testify under due precautions as to
competent interpreters or in writing.”

696. Crimes and Torts of Deaf-Mutes.

It has been said that one deaf and dumb from birth is
presumptively incapable of crime. This is probably
doubtful as a general proposition of modern law, though
courts will be tender and circumspect in dealing with a
prisoner deaf and dumb from infancy.‘

Deaf-mutes are of course liable for their torts, and may
be guilty of contributory negligence in failing to use such
care as their defective condition reasonably demands.*®

697. The Blind.

There seem to be very few cases concerning the blind
that are worthy of special notice save those involving
fraud, undue influence and negligence and contributory
negligence.® So far as the latter is concerned, the blind,

: In addition to authorities supra, see In re De Biddulph’s Trusts, 5
De G. & S. 469; Dickenson ». Bissett, 1 Dickens, 268. See Harrod v.
Harrod, supra, as to capacity to marry, and presumptions thereof.

2 Rushton’s Case, 1 Leach C. C. 455; Spaggs v. State, 108 Ind. 53;
State ». Howard, 118 Mo. 127, 143, 144.

3 State ». Draper, 1 Houst. Cr. Cas. (Del.) 291 (1868).

‘See 5 Am. & Eng Ency. L. (Ist Ed.), 120, note.

5 Thompson v. Salt, Lake Rapid Transit Co., 16 Utah, 281, 67 Am.
St. R. 621, 40 L. R. A. 172.

6 It has been held that where a testator is blind, that the witnesses
604 PERSONS BEREFT OF SPECIAL SENSES

like others whose special senses are absent or defective,
are doubtless bound to use a degree of care and caution
proportioned to their infirmities. !

With respect to negotiable paper, a blind person who
signs such an instrument supposing it an instrument of a
different character, relying upon a reading of it by the
other party, is not guilty of such negligence from that fact
alone as will estop him from setting up the fraud as
against a bona fide holder for value.?

must sign in such situation that the former might have seen them do
so had he had his eyesight, where the statute requires them to sign in
his presence. In re Goods of Piercy, 1 Rob. Ecc. Cas. 279.

1 Florida Central Ry. Co. v. Williams, 37 Fla. 406; Karl v. Juniata
Co., 206 Pa. 633. See also Harris ». Nebelhoer, 75 N. Y. 169.

* The rule here is probably no more strict against the blind than
against illiterates or others unfamiliar with the language. See Walker
v. Ebert, 29 Wis. 194, 9 Am. R. 548; Anderson v. Walter, 34 Mich. 118,
122; Foster v. McKinnon, L. R. 4 C. P. 704.
CHAPTER LVI

CONVICTS

698. In General—Status at Common Law—Attainder.

It is the purpose of the present chapter to consider
generally the status of those convicted of crime, with ref-
erence chiefly to the effect of such conviction upon their
civil rights and capacities. As to what constitutes a
valid conviction of crime, and the remedion Yor an un-
lawful conviction, reference should be had to works on
criminal law and procedure.

A convict may be generally defined as one who has
been adjudged guilty of treason, felony or a misdemeanor
by a court of competent jurisdiction, whether he is await-
ing or undergoing the execution of the sentence of such
court after his guilt has been adjudged, or is simply
awaiting the pronouncement of sentenee.?

Conviction of a misdemeanor, at least at common law,
carried with it no legal consequences to the one convicted
beyond the penalties of fine or imprisonment or both,
and possible disqualification as a witness if the offense
were of a certain sort. By the English common law, how-
ever, one convicted of treason or felony and sentenced
to death was said to be attained. The four chief incidents
of attainder were:

1. Forfeiture.

2. Corruption of blood.

3. Extinction of civil rights, termed civil death.

1 Though the definitions differ on this point, it is perhaps the pre-
vailing view that one is not strictly a convict by reason of a mere

verdict of guilt not followed by a judgment of conviction. See 2 Words
and Phrases, 1584 et seq.; Quintard ». Knoedler, 53 Conn. 485, 55

Am. R. 149.
605
606 CONVICTS

4, Infamy, disqualifying the attainted party to testify as
a witness.)

It seems, however, that attainder was not complete upon
a verdict or plea of guilty, but only ensued when judg-
ment upon the plea or verdict was pronounced.’

699. Same—Forfeiture.

At common law, the goods and chattels of one convicted
of treason or felony were forfeited absolutely to the
crown.? He was not divested of his lands, however, ex-
cept by a proceeding of office found, save that in case of
high treason they were forfeited absolutely. Except in
the latter case he could devise them, and his devisees would
hold them subject only to the rights of the crown.*

700. Same—Corruption of Blood.

Attainder of treason or felony worked corruption of
blood, so that the person attainted could neither take nor
transmit by inheritance.®

701. Same—Civil Death—Infamy.

It has been sometimes said that at common law a
person convicted of a capital offense is civiliter mortuus,
i. e., civilly dead, or dead in law.® But this is not strictly
true, and unlike one who was banished or had abjured the
realm, or entered into a monastery before the reforma-
tion as a monk professed,’ one convicted of a capital
crime or sentenced to imprisonment for life, was deemed

1See Avery v. Everett, 110 N. Y. 317, 6 Am. St. R. 368, 1 L. R. A.
264; Shepherd ». Grimmett, 3 Idaho, 403. Judgment of outlawry,
which was pronounced against those accused of felony who failed to
appear and answer the accusation, had the same effect. See 1 Pol. &
Mait. 476; Cozens v. Long, 3 N. J. L. 764.

2 Quintard v. Knoedler, supra, quoting 1 Coke, Inst. 391.

3 See 4 BI. Com., 386; Bullock ». Dodds, 2 B. & A. 258.

4 Doe »v. Pritchard, 5 B. & Ad. 765, 27 E. C. L. 322.

52 Bl. Com. 251, 252; Avery v. Everett, 110 N. Y. 317, 6 Am. St.
R. 368, 1 L. R. A. 264.

6 Coke’s Litt., 130a.

71 BL. Com., 132.
a

CONVICTS 607

civilly dead only in a restricted sense or for certain pur-
poses.! He might devise his lands subject to the rights
of the crown,’ and could still be sued. He could make a
contract, it seems, but could not enforce it while his at-
tainder lasted, or sue for any other civil wrong.‘ His
grants to others and their grants to him, however, were
good save as against the crown, and a conviction of
treason or felony gave neither curtesy nor dower.’ Fur-
thermore, upon conviction of treason or felony, and
certain offenses known as the crimen falsi, the disquali-
fication of infamy attached whereby the convict was dis-
qualified as a witness, and probably as a juror, by the rules
of the common law. The disqualification to testify was
not strictly an incident of civil death, but proceeded upon
the ground that one guilty of a heinous crime cannot be
trusted in any respect, and hence is not to be trusted as
a witness. As the disqualification of infamy still exists
in a few states, it will be again noticed later on.”

702. Status of Convicts under Modern Law.

The harsh consequences of a conviction of felony have
been largely abolished in England,® and few if any of
them have ever been recognized in this country, or would
be held to ensue in the absence of statute, being deemed
incompatible with our civilization, institutions and pub-
lic policy.° In fact many of them would be impossible,
for the federal constitution provides that no attainder

1See Avery v. Everett, supra, where the matter is discussed at length.

2 See ante, sec. 699; Rankin’s Heirs v. Rankin’s Exrs., 6 T. B. Monr.
(Ky.) 531, 17 Am. D. 161.

3 Ramsey v. McDonald, 1 W. BI. 30, 1 Wils. 217.

4 Kynnaird v. Leslie, L. R. 1 C. P. 389, 1 H. & R. 521.

5 See ante, sec. 206.

8 See 1 Wigmore on Ev., sec. 519.

7See post, sec. 703. See also 1 Wigmore on Ev., sec. 488.

8 See Stat. 3 & 4, Wm. 4, Chap. 106: 33 & 34 Vict., Chap. 23.

9In re Nerac, 35 Cal. 392, 95 Am. Dec. 111; Williams ». King, 23
Fla. 478; Davis v. Laning, 85 Tex. 39, 34 Am. St. R. 784, 18 L. R. A. 82;
Cannon v. Windsor, 1 Houst. (Del.) 143; Frazier ». Fulcher, 17 Ohio,
260.
608 CONVICTS

of treason shall work corruption of blood or forfeiture,
except during the life of the person attainted,1 and many
state constitutions and statutes contain similar or even
broader provisions applicable to treason or to crimes
in general.2 In New York, California, and Missouri,
however, it is provided that one sentenced to imprison-
ment for life shall’ be deemed civilly dead,’ and in
Wisconsin a sentence to imprisonment for life of either
party to a marriage ipso facto dissolves it. Under the
New York statute it has been held that the term civil
death has no wider meaning than it had at common law,
and that one sentenced to life imprisonment is not ipso
facto divested of his property,> and that administration
cannot be granted upon his estate. The statutes in a few
states, however, provide for administration upon estates
of life convicts.’ Statutes of these and a few other states
provide expressly for more or less complete suspension of
civil rights during imprisonment less than for life.2 It

2Const., Art. III, sec. 3; Rankin’s Heirs v. Rankin’s Exrs., 6 T. B.
Monr. (Ky.) 531, 17 Am. D. 161. Whether an heir convicted of the
murder of his ancestor can inherit or take by will the estate of the
latter has been differently decided in several states. That he can is
held in Wellner ». Eckstein, 105 Minn. 444, where the conflicting au-
thorities are discussed.

2 Stimp. Am. Stat. L., sees. 143, 1162.

3 See poe v. Everett, 110 N. Y. 317, 1 L. R. A. 264, 6 Am. St. R.
368, and/note, and cases from those states cited below. In Virginia a
conservator may be appointed over estates of convicts sentenced for
more than one year. Code, secs. 4115, 4116.

4 See ante, sec. 383. See also Avery v. Everett, supra.

» Avery v. Everett, supra. See Coffee v. Haynes, 124 Cal. 561, 71
Am. St. R. 99; Cal. Pen. Code, sec. 675.

6 Matter of Zeph., 50 Hun (N. Y.), 528, 3 N. Y. Supp. 460, 20 N. Y.
St. 382.

7See Kan. Gen. Stat. 1899, sec. 5583; Smith #. Becker, 62 Kan.
541, 53 L. R. A. 141; Wilson v. King, 59 Ark. 32, 23 L. R. A. 802;
Williams », Shackleford, 97 Mo. 322; In re Nerac, 35 Cal. 392, 95 Am.
D. 111." The life convict is deprived of his right to inherit. In re
Donnelly, 125 Cal. 417, 73 Am. St. R. 62.

§ See Kenyon v. Saunders, 18 R. I. 590, 26 L. R. A. 232; In re Nerac,
CONVICTS 609

seems, however, that the statutes do not apply to sentences
otherwise than by the courts of the state where the dis-
ability is claimed.!

703. Convicts as Witnesses.

At common law those convicted of infamous crimes,
which ordinarily included treason, felony, and certain
offenses known as the crimen falsi, were deemed insensi-
ble to the obligation of an oath, and hence were disquali-
fied as witnesses, unless their disability had been removed
by pardon or reversal of the conviction. The disqualifica-
tion of infamy, as it is called, has been removed by
statutes in England and most of our states, though a con-
viction may still quite generally be shown to affect the
credibility of the witness.?

What crimes are to be deemed infamous within the
meaning of the rule, has given rise to much discussion
and to some conflict in the decisions. It is enough to say
that in addition to treason and felony, the conviction of
any offense given in the note below, whether it amounts to
felony or not, will disqualify a witness where the common
law prevails.? The disqualification of infamy does not

supra, with which compare Coffee v. Haynes, supra; Williams 2.
Shackleford, supra; Beck ». Beck, 36 Miss. 72. In Rhode Island a
convict cannot make a deed or will during his imprisonment.

!Presbury v. Hull, 24 Mo. 29; Platner ». Sherwood, 6 Johns. Ch.
(N. Y.) 118; Sample v. Horner, 61 Kan. 738. See also Avery v. Everett,
110 N. Y. 317, 6 Am. St. R. 368, 1 L. R. A. 264. As to conviction and
sentence as ground for divorce, see ante, sec. 383. P

2 See post, next sec.; Wigm. on Hv., secs. 519 et seq.

? See Smith v. State, 129 Ala. 89, 87 Am. St. R. 47. Forgery, perjury
and subornation of perjury, suppression of testimony by bribery or
conspiracy to prevent the attendance of witnesses, conspiracy to
accuse of crime or to defraud creditors, burglary, grand and petit
larceny, receiving stolen goods and barratry, have severally been held
infamous crimes. Jones on Ev. (2d Ed.), sec. 716, and cases cited in
note 35; 1 Greenl. on Ev., sec. 873. It is the character of the crime
‘and not the nature of the punishment that destroys the competency
of the witness. People v. Whipple, 9 Cow. (N. Y.) 708; Schuylkill
County v. Copley, 67 Pa. 386, 5 Am. R, 441.

39
610 CONVICTS

follow upon mere conviction, but only upon final judg-
ment of guilt,! and it is sometimes held that the convic-.
tion can be proved only by the record, or an authenticated:
copy thereof, and not on cross-examination or otherwise,
except where statutes have changed the rule.’

‘By the apparent weight of authority, conviction by
the courts of another state or country cannot be shown
to disqualify a witness.*

704. Same—Conviction as Affecting Credibility.

Where the testimonial disability of infamy has been
removed by statute, a conviction of crime may never-
theless be shown to affect the credibility of a witness.
This rule proceeds on somewhat different principles from
that which disqualifies a witness generally, and a foreign
conviction may be shown as well as one within the state.*
So, a conviction may be shown to affect credit even after
pardon granted.’ While some courts hold that only such
offenses can be proved to impeach a witness as would
have rendered him infamous at common law, others hold
that any crime, or at least any crime involving moral
turpitude, can be shown. This question is sometimes af-
fected by particular statutory terms, as is also the further
question as to whether the conviction must be shown by
the record, or may be elicited from the witness himself
on cross-examination. Any adequate discussion of these
questions belongs to special works on evidence.®

706. Conviction of Crime as Affecting Competency
as Juror or Office Holder.
Infamy appears to have disqualified a juror at common

1 People v. Whipple, supra; Boyd v. State, 94 Tenn. 508.

2 See, however, note to Lodge »v. State, 82 Am. St. R. 34.

’ Logan v. United States, 144 U. S. 263, and authorities cited; Com..
v. Green, 17 Mass. 515. Contra, State v. Foley, 15 Nev. 64, 37 Am. R.
458, and cases cited.

*Com. ». Green, supra.

6 Curtis ». Cochran, 50 N. H. 242.

6 See Underhill on Ev., sec. 321; Wigm. on Ev., secs. 524, 488, and
notes,
CONVICTS 611

law. Whether this disqualification is recognized under the
common law of this country seems not to have been de-
termined, probably because of statutes in most juris-
dictions covering the subject and specifying the particular
offense that shall disqualify the person convicted or
accused.

Under the constitution or statutes of most states prior
conviction of certain specified crimes is a disqualification
for public office. Upon this point the reader will of course
consult local statutes and decisions.

In many states persons convicted of treason, felony,
or other specified offenses are disqualified as voters.

706. Pardon.

The effect of an absolute pardon, whether before or
after conviction, is to remove all the future consequences
of the crime, not merely to remit the penalties, at least in
the absence of some constitutional limitation upon the
power of the executive.! It follows, therefore, that all
disabilities flowing from the crime are legally obliterated,
all unenforced penalties are remitted, and the party
pardoned is restored to all civil and political rights of
which he was deprived by the commission or conviction
of the crime pardoned,’ save that he is not restored to
any office of which he may have been deprived by the
conviction,’ nor to marital rights if these were extinguished
by the conviction, or by a divorce based upon such con-
viction as a cause.*

707. Domicile of Prisoners.
It is generally held that a convict retains the domicile

1 Ex parte Garland, 4 Wall. (U. 8.) 333; Dehl ». Rogers, 169 Pa. 316,
47 Am. St. R. 908.

2 Ex parte Garland, supra; Singleton v. State, 38 Fla. 297, 56 Am.
St. R. 177, 34 L. R. A. 251, and note; Roberts v. State, 160 N. Y. 217.

+ Ex parte Garland, supra.

4 See ante, sec. 383. That he is entitled to the custody of his children,
see Matter of Déming, 10 Johns. (N. Y.) 232.
612 CONVICTS

that was his at the time of conviction, and this is probably
true though he is sentenced for life.!

708. Crimes and Torts by and Against Convicts.

The fact that one is under sentence of imprisonment,
even for life, does not, in general, prevent his trial and
conviction for a distinct offense, whether committed be-
fore or after his first conviction.”

On the other hand, the convict is fully within the pro-
tection of the criminal law even though awaiting the
death penalty, so that whoever kills him, save in lawful
execution of his sentence, may be guilty of criminal
homicide.*? Doubtless the convict in this country is
civilly liable for his torts, whether committed while in
prison or out of it, and the right of a convict to sue
third persons responsible for torts to his person or prop-
erty, even while he is in prison, is undoubted,‘ though in
cases of treason or felony his right of action might, in
some states, be held to be suspended while his imprison-
ment endures.> Upon grounds of public policy, however,
and its immunity from suit without its consent, the state
is not liable for personal injuries to convicts confined in
its prisons or reformatories.6 The same rule extends to
prisons as agencies of the state,’ and to the officers thereof,®
though the latter are doubtless liable for willful injuries or

1See Jac. on Dom., secs. 272, 274, 275. See also Guarantee Co. ».
Lynchburg First Nat. Bank, 95 Va. 480.

2 Thomas ». People, 67 N. Y. 218; Henderson v. James, 52 Ohio St.
242; People v. Flynn, 7 Utah, 382. Compare State 2. Buck, 120 Mo.
479.

3 Whart. Crim. Law (8th Ed.), sec. 401; Com. ». Bowen, 13 Mass.
356, 7 Am. D. 154.

4 Dade Coal Co. v. Haslitt, 83 Ga. 549; Cannon v. Windsor, 1 Houst.
(Del.) 143.

5 Local statutes on this point should be examined.

* Lewis 2. State, 96 N. Y. 71, 48 Am. R. 607; Clodfelter v. State,
86 N. Car. 51, 41 Am. R. 440,

7 Moody ». State Prison, 128 N. Car. 12, 53 L. R. A. 855.

*O0’Hare ». Jones, 161 Mass. 391. Compare 21 Tex. Civ. App. 326.

\
CONVICTS 613

those not due to mere negligence in the performance of
official duties. Lessees of convict labor, however, and
their private servants and agents, are undoubtedly liable
for torts to leased convicts, and in case of negligence are
not protected by the doctrine of assumed risks, where the
convict was injured while under their orders and control.?
And a sheriff and his sureties are liable on his official bond
for injuries to the health and safety of a prisoner due to
the negligence of such sheriff or his deputies.? But a
county or municipal corporation is not liable to a prisoner
for the unsafe or unsanitary condition of its jails, or for
injuries received by prisoners at the hands of those in
charge.

It has been held that one in custody under a void com-
mitment cannot recover for his services from a contractor
for convict labor, who has paid the state for such services,®
but the contrary has also been held.®

1 Wightman »v. Brush, 10 N. Y. Supp. 76.

2 Chattahoochie Brick Co. v. Braswell, 92 Ga. 631; Dalheim »v.
Lemon, 45 Fed. 225, limiting his right to recover for incapacity to labor
during his unexpired term.

3 Shields v. Pflanz, 101 Ky. 407; Hixon v. Cupp, 5 Okla. 545; Indiana
v. Gobin, 94 Fed. 48.

4 White v. Sullivan Co., 129 Ind. 396; Brown v. Guyondotie, 34 W.
Va. 299, 11 L. R. A. 121; Doster v. Atlanta, 72 Ga. 233. Compare
Coley »v. Statesville, 121 N. Car. 301.

5 Thompson v. Bronk, 126 Mich. 455.

6 Patterson v. Crawford, 12 Ind. 241; Greer ». Critz, 53 Ark. 248.
CHAPTER LVII
CITIZENS AND ALIENS

709. In General.

In all legal systems more or less distinction is always
made between citizens and aliens. It is the purpose of
the present chapter to explain this distinction and to
discuss, in a general way, the effect under our law of the
status of citizenship on the one hand, and that of alien-
age upon the other, chiefly in their bearing upon civil, as
distinguished from strictly political, rights, duties and
capacities.?

710. Definitions.

A citizen, in the full acceptation of the term, is a mem-
ber of the civil state, entitled to all its privileges.?, More
fully, a citizen is a person who is entitled to the rights,
privileges and protection due to members of the body
politic, i. e., a nation or sovereign state, and who owes
it the allegiance due from the individuals who compose it.*

Generally, aliens are those owing paramount allegiance
to another prince, potentate or nation. More specific-
ally in this country, an alien is one born out of the juris-
diction of the United States and who has not been natural-
ized under the constitution and laws of the United States,

1For a discussion of citizenship from a political standpoint, see
Cooley’s Const. L. (8d Ed.) 268 et seq.; Black’s Const. L. (8d Ed.), 19.

2 Cooley’s Const. L. (3d Ed.) 88.

3See Amy »v. Smith, 11 Ky. (1 Litt.) 326, 331; United States 2.
Crukshank, 92 U. 8. 542, 549. The term citizen is sometimes used as
synonymous with subject, though the latter term is more appropriate
to one living under a monarchy than a republic. See Minor ». Happer-
sett, 21 Wall. (U. 8.) 162; White ». Clements, 39 Ga. 232.

614
CITIZENS AND ALIENS 615

or any one of them.' If the sovereignty to which he be-
longs is at war with the United States, he is termed an
alien enemy, as distinguished from an alien friend or alien
amy.

Ezxpatriation is the voluntary act whereby one trans-
fers his citizenship and allegiance from one country to
another.’

Naturalization is the process whereby one not previously
such, is received into the state or nation as a citizen.?

711. How Citizenship Is Acquired.

Citizenship in this country may be acquired either by
birth or naturalization, and citizenship once acquired
may be lost by expatriation, as explained in the next
section. By the federal constitution, all persons born
or naturalized within the United States and subject to
the jurisdiction thereof, are citizens of the United States
and of the state wherein they reside.’

To be a citizen of the United States by birth one must
not only be born within the United States, but must be
subject to the jurisdiction thereof. This last phrase ex-
cludes from citizenship by birth the children of foreign
sovereigns and their representatives, those born of for-
eign parents in foreign ships, and the children of alien
enemies born during hostile occupation of our territory.®
It also excludes Indians born of parents whose tribal re-
lations are preserved, for, though born within the United
States, they are not strictly subject to the jurisdiction
thereof.®

But one born abroad may be a citizen of the United
States without naturalization, for Congress has provided

12 Kent’s Com. 50.

2 See post, sec. 712.

3 See Boyd v. Thayer, 143 U.S. 162.

4 Amendment XIV.

5 United States ». Wong Kim Ark, 169 U. S. 693.

6 See post, sec. 720; Elk v. Wilkins, 112 U. 8. 94. As to Chinese,
see post, sec. 721.
616 CITIZENS AND ALIENS

that one born outside the United States when his father
was a citizen thereof shall be deemed a citizen of the
United States, unless his father never resided therein.!
A child born of foreign parents who remove here during
its minority becomes a citizen if its parents were citizens
at the time of such removal or had previously been citi-
zens of the United States.? These rules apply, however,
only where the child is legitimate.’

Citizenship by naturalization arises where the state
or government accepts an alien and clothes him with the
attributes of a citizen.‘

Congress is empowered ‘‘to establish an uniform rule
of naturalization.” > It is not our purpose to discuss the
details of the naturalization laws enacted by Congress pur-
suant to this clause. Their requirements are easily ascer-
tained by application to clerks of local courts of record,
state or federal, or to the Bureau of Naturalization, and
Immigration of the Department of Commerce and Labor.®

It should be observed that while the states have power
in general to confer upon aliens such rights, privileges
and capacities as they please within their own limits, the

‘ United States Rev. Stat., secs. 1993, 2172.

2 34 U.S. Stat. at L. 1229.

3 Guyer v. Smith, 22 Md. 239, 85 Am. D. 650. While the inhabitants
of the ceded Spanish colonies, Porto Rico and the Philippines, and the
inhabitants of the Panama Canal Zone are not citizens of the United
States in the strict sense, neither are they aliens. They may be said
to have a restricted or qualified citizenship, the scope and incidents of
which are not yet fully defined. See Gonzalez v. Williams, 192 U. 8. 1;
De Lima ». Bidwell, 182 U. 8. 1; Downs v. Bidwell, 182 U. S. 244;
Hawaii v. Mankichi, 190 U. 8. 197; Dorr ». United States, 195 U. 8.
138; Carino v. Insular Gvt. of the Philippines, 212 U. S. 449; Bosque ».
United States, 209 U. S. 91. As to the inhabitants of Alaska, see
Rasmussen ». United States, 197 U. S. 516.

‘Osborn v. United States Bank, 9 Wheat. (U. 8.) 827; Minneapolis
v. Reum, 12 C. C. A. 447.

5 Const., Art. I, sec. 8, cl. 4.

*The naturalization acts and the cases construing them will be
found in 5 Fed. Stat. Anno., 200 et seq., and in the supplement thereto
(1909), 364 et seq. (Act of June 29, 1906, Chap. 3592, 34 Stat. L. 596).
CITIZENS AND ALIENS 617

power to confer federal citizenship by naturalization is
vested exclusively in Congress.!

Furthermore, a child born abroad of alien parents be-
comes a citizen by naturalization of the latter, provided
such child is a minor and dwells here when the naturali-
zation of the parent takes place, or resides here perma-
nently during its minority.”

An alien woman takes the citizenship of her husband,
provided she is capable of lawful naturalization.’

712. How Citizenship is Lost.

Citizenship once acquired is lost only by expatriation,
or the voluntary renunciation of a subsisting citizenship
or allegiance in favor of a new one.* While the right of
expatriation was denied at common law, it is now clearly
recognized both here and in England,® the only doubt
being as to the conditions and proof of its exercise. Gener-
ally it can take place only where the party is free from any
disability that would preclude voluntary, intelligent and
independent choice. Minors, lunatics and married women
cannot, as a rule, discard their old citizenship and assume
a new one.® So, there must be a fixed and voluntary de-
termination to cast off the old allegiance and adopt a
new one accompanied or followed by what is intended

1 Slaughter House Cases, 16 Wall. (U. 8.) 72, 73; State v. Vellatio,
2 Dall. (U. S.) 370; Minneapolis ». Reum, 12 C. C. A. 446,

2 See U. S. Rev. Stat., sec. 2172; Act of March 2, 1907, Chap. 2534,
sec. 5, in Fed. Stat. Anno., Supp. (1909), 69. See also Boyd v. Ne-
braska, 143 U. 8. 178.

3 Act of 1906, supra; Kelley ». Owen, 7 Wall. (U. 8.) 496. A female
citizen of the United States who marries an alien does not lose her
citizenship so long as she resides here. Wallenburg v. Missouri Pacific
Ry. Co., 159 Fed. 217. Whether the act of 1907 changes this rule it is
difficult to say.

4 The Santissima Trinidad, 1 Brock. (U. S.) 478.

51 Bl. Com. 370, Cooley’s note; 2 Kent’s Com., 43; Stat. 33 Vict.,
Chap. 14, sec. 6; Rev. Stat. U. S., sec. 1999; Act of March 2, 1907,

Fed. Stat. Ann., Supp. (1909), 68.
‘See Ludlam ». Ludlam, 26 N. Y. 356, 84 Am. D. 193, and note;
Beavers v. Smith, 11 Ala. 20; Moore ». Tisdale, 5 B. Monr. (Ky.) 352.
618 CITIZENS AND ALIENS

to be a permanent removal from the country whose citi-
zenship is discarded.

713. Power of the Government to Exclude or Deport
Aliens—Equal Protection and Capacity.

The United States has all the powers of sovereignty
under the rules of international law, and like any other
independent sovereignty may exclude, expel or deport
aliens; ? and the enforcement of the laws in this respect
by executive officers without appeal to the courts is not
a denial of due process of law.? The states, however, can
exercise no such power by taxation or otherwise except
so far as its exercise is confined to immigrants plainly
dangerous to health or morals. The fourteenth amend-
ment forbids the states to deny to any person the equal
protection of the laws. This means that the states must
accord aliens equal justice and equal security rather than
absolute equality with citizens, and they may hence ex-
clude them from the ownership of real estate unless treaty
forbids.’ Aliens who are non-residents may probably
be debarred from holding shares in domestic corpora-
tions.®

1 Kenna v. Brockhaus, 10 Bliss (U. S.), 128, 5 Fed. 762; The San-
tissima Trinidad, 7 Wheat. (U. 8.) 283, 347; Comitis v. Parkerson, 5
Fed. 556, 22 L. R. A. 148; Lynch v. Clarke, 1 Sandf. Ch. (N. Y.) 583,
638; State v. Adams, 45 Ia. 99, 24 Am. R. 760; Ludlam v. Ludlam, 31
Barb. (N. Y.) 486, 489. Proof of expatriation, or the intention to cast
off a former allegiance in favor of a new one, can be made by any
evidence that satisfies the court. Green ». Salas, 31 Fed. R. 106.
See also Act of March 2, 1909, Fed. Stat. Anno., Supp. (1909), 63.

2 Ekiu v. United States, 142 U. 8. 651; Fong Yue Ting v. United
States, 149 U. S. 698; Lem Moon Sing »v. United States, 158 U. S. 538;
Yamataya v. Fisher, 189 U. S. 86; post, sec. 721.

3 Wong Wing v. United States, 163 U.S. 651.

4 Passenger Cases, 7 How. (U. 8.) 283; New York v. Miln, 11 Pet.
(U. 8.) 102; State v. 8. S. “Constitution,” 42 Cal. 578, 10 Am. R. 303;
People ». Compagnie Generale Transatlantique, 107 U.S. 159; Com-
pagnie Francaise v. State Board of Health, 186 U. S. 380.

5 See post, next sec.; Fairfax 1. Hunter, 7 Cranch (U. 8.), 602.

* State v. Travelers’ Ins. Co., 70 Conn. 590, 66 Am. St. R. 138.
‘CITIZENS AND ALIENS 619

714. Capacity of Aliens to Acquire and Hold Prop-
erty.

By the common law alien friends, whether resident or
not, are capable of acquiring, holding, transmitting and
disposing of personal property in the same manner and
to the same extent as citizens. No other rule would have
been compatible with the operations and expansion of
commerce,’ and state legislation has naturally left this
rule practically intact.?

By the common law, an alien could not take real prop-
erty by descent, or otherwise by operation of law, as in
the case of curtesy or dower,’ nor could he be the inter-
mediary through whom lands could be transmitted to
another by descent, as where the heir, though a citizen,
must rest his right of inheritance upon a claim of descent
cast upon an alien ancestor,‘ or trace the kinship upon
which his right to inherit depends through a foreigner.®
Descent between brothers and sisters, however, is deemed
immediate, and they may, if citizens, inherit from one an-
other notwithstanding the alienage of their father.6 An
alien even at common law could take by devise or pur-
chase, and hold against all but the crown, which might

1Calvin’s Case, 7 Coke, 17; Com. v. Detwiller, 131 Pa. 614, 7 L.
R. A. 357. An alien may transmit or take a distributive share.
Greenheld v. Morrison, 21 La. 538.

2 See State v. Traveler’s Ins. Co., supra, as to ownership of stock
in domestic corporations.

3 Reese v. Waters, 4 W. & S. (Pa.) 145.

42 Bl. Com. 249; 2 Kent’s Com., 62, 64; Orr »v. Hoagson, 4
Wheat. (U. S.) 453; Levy v. M’Cartee, 6 Pet. (U. 8.) 102; Jackson ».
Fitzsimmons, 10 Wend. (N. Y.) 9, 24 Am. D. 198; Beavan v. Went,
155 Ill. 592, 31 L. R. A. 85, and note; Murray v. Kelly, 27 Ind. 42, 46;
note to Easton v. Huott, 95 Ia. 473, 31 L. R. A. 177, where many cases
in support of these propositions are cited. As to dower and curtesy,
see ante, secs. 201, 212. ;

5 Levy v. M’Cartee, supra; Beavan v. Went, supra; Furnes v. Meck-
elson, 86 Ia. 508. Contra, Campbell’s Appeal., 64 Conn. 277, 24 L. R.
A. 667; McKellar v. McKellar, 1 Speers (S. C.), 536.

‘Collingwood ». Pace, 1 Vent. 413; Levy ». McCartee, supra;
Luhrs v. Eimer, 80 N. Y. 171, 179.
620 CITIZENS AND ALIENS

declare a forfeiture or escheat in a judicial proceeding
known as office found,! and one to whom he conveyed
the property in the meantime held the title in like manner,
subject to divestiture by the state.? If the alien died
intestate, however, without having conveyed, his title
escheated immediately to the state, without inquest of
office.®

At common law a devise or grant of land in trust for
an alien will not protect the cestui que trust as against
the state in a proceeding of office found. If the terms
of the trust require a sale of the land, however, and the
application of the proceeds to the benefit of an alien, it
is valid, and so where the trustee is merely to pay over
the profits of the land to the alien during life.+

It should be borne in mind that the right of aliens to take
land by purchase and to hold absolutely, even against the
state, at least for a limited time, is often secured by treaty
between our own and certain foreign countries of which
they may be subjects.> Furthermore, the naturalization
of an alien confirms and makes absolute ab initio his title
to all lands previously acquired by devise or purchase.®

The rule of the common law that an alien could not

1 Governeur v. Robertson, 11 Wheat. (U. 8.) 332; Fairfax v. Hunter,
7 Cranch. (U. 8.) 604, 619; Phillip ». Moore, 100 U. S. 208; Harley v.
State, 40 Ala. 689, 695, and cases cited; Guyer v. Smith, 22 Md. 239,
85 Am. D. 650; Waugh ». Riley, 8 Met. (Mass.) 290. Consequently
he can devise lands so acquired and his devisee will hold against all
save the sovereign. Williams v. Wilson, Mart. & Y. (Tenn.) 248,
258, 254.

2 Bradstreet v. Supervisors, etc., 13 Wend. (N. Y.) 548; Purczell 2.
Smidt, 21 Ia. 540; Harley v. State, supra; Waugh v. Riley, supra.

3 Crane v. Reeder, 21 Mich. 24, 4 Am. R. 430; Mooers ». White, 6
Johns. Ch. 360, 366; Rubeck ». Gardner, 7 Watts (Pa.), 455.

‘See 1 Perry on Trusts (4th Ed.), sec. 64; Meakings ». Cromwell, 5
N. Y. 136.

5 See Blythe v. Hinckley, 180 U. 8. 333, and Article in 43 Cent. L.
Jour. 211; Wunderle v. Wunderle, 144 Ill. 40, 53, 19 L. R. A. 84. In
the absence of treaty the admission of aliens to heirship is solely a
matter of state regulation. Blythe v. Hinckley, supra.

6 2 Kent’s Com. 54; Harley v. State, 40 Ala. 689.
CITIZENS AND ALIENS 621

take by inheritance or hold lands under grant or devise
as against the state, is abrogated in a majority of our
states by constitutions and statutes which place aliens,
whether resident or not, upon the same footing with citi-
zens as to property rights. In some states a distinction
is made between resident and non-resident aliens as to
the ownership of land, and there are still other distinc-
tions.?

716. Contracts of Alien Friends.

Ordinarily an alien friend may make such contracts
as he will, whether with our own citizens or with other
aliens, and they will be enforced by our courts wherever
they have jurisdiction over the parties, whether the con-
tract was made in the state where the suit is brought or
in some other state or country, unless there is some cogent
reason of justice or policy why such jurisdiction should
be declined.?

716. Crimes and Torts by or Against Aliens.

Alien residents and sojourners are entitled to the full
protection of our criminal law, both on general principles
and under the fourteenth amendment to the federal con-
stitution. On the other hand, they are deemed to owe
such a temporary or qualified allegiance that they are
completely amenable to punishment for crimes against our
laws,? or other breaches of our civil regulations. The
rule as to temporary or qualified allegiance, however,
does not apply to rulers of friendly foreign states or to
their ambassadors or public ministers, their attachés and

1 See U. S. Rev. Stat. sec. 2322. See also 43 Cent Law. Jour., 220,
and note to DeWolf v. Middleton, in 31 L. R. A. 146, and note to
Beavan v. Went, 155 Ill. 592, in 31 L. R. A. 85.

2 Roberts v. Knights, 7 Allen (Mass.), 449; McKee ». Jones, 67

Miss. 405; Arbuckle ». Reaume, 96 Mich, 243; post, sec. 717.

+ Rex v. Esop, 7 C. & P. 456,32 E. C. L. 705; Carlisle v. U.S., 16 Wall.
(U. 8.) 147; In re Wong Yung Quy, 6 Sawy. (U. 8.) 442, 2 Fed. 624;
People v. McLeod, 1 Hill (N. Y.), 377, 37 Am. D. 328, 25 Wend.
(N. Y.) 783.
622 CITIZENS AND ALIENS

members of their households.!. They apply to consuls,
however, who are in the nature of commercial agents
merely, though civil actions against them must usually
be brought in the federal courts if they object to the juris-
diction of the state courts.”

Generally, aliens may sue or be sued in our courts for
civil wrongs whether committed here or elsewhere.’

717. Civil Actions by and Against Alien Friends.

As a general rule based upon comity,‘ alien friends who
are sui juris and not specially disabled by the law of the
place where the action is brought, may there maintain
suits to vindicate their rights and redress their wrongs
even though the cause of action arose elsewhere, so long
as the action in question is transitory in its nature and
not local to some other place.’ While the right of a citi-
zen of one of our states to go into another state and there
sue upon a cause of action arising in the state of -his resi-
dence is probably secured by the federal constitution,
through its guarantee to citizens of each state of all the
privileges and immunities of citizens in every other state, ®
the courts of a state may in their discretion decline juris-
diction of a cause of action between aliens where it arose
in another country.’

1See post, sec. 717; Philmore’s Int. Law, 346; Wheaton’s Int. Law
(6th Ed.), 148, 146. In case of grave crimes ambassadors or public
ministers may be remanded home to their own sovereigns for punish-
ment. See Woolsey’s Int. Law (5th Ed.), sec. 96.

2 See Wilcox v. Luco, 118 Cal. 639, 62 Am. St. R. 305, and elaborate
note thereto in 45 L. R. A. 579.

3 See post, next section.

4 Comity is well defined in Hilton v. Guyot, 159 U. 8. 113, 163.

5 See Story’s Confl. Laws (8th Ed.), sec. 565; 7 Am. L. Rev. 417;
Cooley on Torts (2d Ed.), 551; Hingartner v. Ill. Steel Co., 94 Wis.
70, 59 Am. St. R. 859, 34 L. R. A. 503; Dennick v. R. R. Co., 103 U.S.
11; Herrick ». R. R. Co., 31 Minn. 11, 47 Am. R. 771; Belknap Sav-
ings Bank ». Robinson, 66 Conn. 542.

* Hingartner v. Ill. Steel Co., supra; Confrode v. Circuit Judge, 79
Mich. 382, 7 L. R. A. 511.

7See Eingartner v. Ill. Steel Co., supra; Great Western Ry. Co. v.
CITIZENS AND ALIENS 623

In order that an alien may maintain an action in the
courts of a state for a cause arising abroad against a citi-
zen or another alien, it is said that it must be based upon
an act or omission recognized as wrongful by the law and
policy of the forum,! and this rule is sometimes applied
as between the citizens of different states, though the
Tule is generally otherwise, unless to recognize the cause
of action would violate the law or policy of the forum.?

No state will enforce the merely penal laws of another
state or nation,® nor will it, by some authorities, permit
non-resident aliens to obtain priority over its own citizens
by priority of attachment or in other sequestration pro-
ceedings as to property situated within the state, by vir-
tue of a cause of action arising abroad against another
alien, or perhaps a citizen.‘ While a foreign state or sov-
ereign may sue in our courts for the protection of his civil
rights > and may be met therein by the usual defenses,
no foreign state or sovereign or its diplomatic representa-
tives may be sued, or his or its property taken therein,

Miller, 19 Mich. 305; Disconto Gesellschaft ». Umbreit, 127 Wis. 651,
115 Am. St. R. 1063, 15 L. R. A. (N. 8.) 1045; Gienar v. Meyer, 2 H.
Bl. 603. Sometimes the right to adjudicate between foreigners is ef-
fected by treaties, but these usually relate to foreign shipping, and
particularly to controversies between masters and mariners of foreign .
vessels.

1 Pollock on Torts, 176; Dicey’s Parties to Actions, 55, 59; Northern
Pac. Ry. Co. v. Babcock, 154 U. 8. 190.

2 Northern Pac. Ry. Co. v. Babcock, supra; Eingariner ». Ill. Steel
Co., supra. Enforcing statute of sister state as to death by wrongful
act, De Harn v. Mexican Ry. Co., 86 Tex. 68. As to the right of non
resident alien beneficiaries to recover for death by wrongful act see
Anustasakas ». International Contract Co., 51 Wash. 119 and note
thereto in 21 L. R. A. (N. 8.) 267.

3 Story’s Confl. Laws (8th Ed.), secs. 620, 621; Flash ». Conn., 109
U. 8. 371, 376; Carnahan v. W. U. Tel. Co., 89 Ind. 526, 46 Am. R.
175; Attrill v. Huntington, 70 Md. 191, 14 Am. St. R. 344, and notes,
2L. R.A. 779, and note.

48ee Disconto Gesellschaft v. Umbreit, 127 Wis. 651, 115 Am. St.
R. 1063, 15 L. R. A. (N. 8.) 1045, affirmed in 208 U. 8. 570.

5 Dicey’s Parties to Actions, 2.
624 CITIZENS AND ALIENS

without voluntarily submitting to the jurisdiction.!. This
immunity extends to their diplomatic representatives,
their servants and members of their‘ households, but not
to mere consular or commercial agents.2, With the ex-
ceptions noted, our own citizens or even aliens may main-
tain civil actions in our courts against either resident
or non-resident aliens, and may recover judgments in
personam therein whenever they can get personal service
upon the defendant within the jurisdiction of the court,
or the defendant voluntarily appears,’ or in rem against
his property in many cases without such service.

718. Contracts with Alien Enemies.

The law of nations, as judicially declared, prohibits
all such intercourse between citizens of belligerents as
is inconsistent with the state of war between their coun-
tries; and this includes any act of voluntary submission to
the enemy, or receiving his protection, as well as any act or
contract which tends to increase his resources; and every
kind of trading or commercial dealing or intercourse, either
directly or indirectly between the two countries, or through
the intervention of third persons or partnerships, or by con-
tracts in any form looking to or involving such transmis-
sion, or by insurances upon trade with or by the enemy.‘

Text writers and judicial dicta often go further than
this, and characterize as void all contracts entered into

1 See ante, sec. 716; The Parlement Belge, 5 P. D. 197; Wrighell ».
Sultan of Johore, 1 Q. B. 149, 157; Briggs v. The Lightships, 11 Allen
(Mass.), 157.

2 See Dicey’s Parties to Actions, 5. The immunity of these persons
as well as the sovereign himself may perhaps be lost where they mix up
with the trade or commerce of the country on the footing of private
individuals, or become owners of immovable property therein. See 1
Philm. 365.

8 Roberts ». Knights, 7 Allen (Mass.), 449; Barrell ». Benjamin, 15
Mass. 354.

‘Shaw »v. Carlisle, 56 Tenn. 594; Kershaw v. Kelsey, 100 Mass. 561,
97 Am. D. 124; Briggs v. U. S., 143 U. 8. 346. As to the belligerent
status of citizens of the North and South during the Rebellion, see The
Prize Cases, 2 Back (U. 8.), 655.
CITIZENS AND ALIENS 625

between our subjects and the citizens or subjects of a
country with which we are at war.!

Even if the general rule be as broad as is last stated,
it is subject to several well recognized exceptions, as fol-
lows:

1. Ransom bills, whether for the release of persons
or property from the enemy’s hands.’

2. Contracts for subsistence made by a prisoner of war
while within the enemy’s lines.*

3. Contracts made by a shipmaster in an enemies’ port
to enable him to return the vessel to her home port.‘

4. Contracts made under a license to trade, whether
expressly given to individuals or implied from a general
relaxation of the rule against non-intercourse.® In fact
permitting subjects of the enemy to continue their resi-
dence within our borders, or to come into our territory
and reside during war, will be an implied license to them
to contract with our citizens.®

Contracts entered into with the subjects of the enemy
before war was declared are rendered void, as a rule, only
so far as they contemplate or necessitate intercourse with
the enemy or his subjects during the continuance of hos-
tilities.’. Rights under them are suspended or are in abey-

1 See authorities cited in Kershaw v. Kelsey, supra. Compare Green-
hood’s Pub. Pol., 371, note 3.

2 Brandon »v. Nesbit, 6 T. R. 28; Crawford v. The William Penn, 2
Wash. (U. 8S.) 484; Goodrich ». Gordon, 15 Johns. (N. Y.) 6.

3 Crawford v. The William Penn, supra.

‘Crawford v. The William Penn, supra; Hallet ». Jenks, 3 Cranch
(U. 8.), 210.

5 Dana’s Wheaton, note 158; Woolsey’s Int. Law (5th Ed.), sec. 155;
Blackburne v. Thompson, 15 East, 81.

6 See Clark v. Morey, 10 Johns (N. Y.), 69.

7 Booker v. Kirkpatrick, 26 Gratt. (Va.) 145; Cramer v. U.S., 7 Ct.
Cl. 302; Williams v. State, 37 Ark. 463; Yeaton v. Berney, 62 Ill. 61;
Shaw ». Carlisle, 56 Tenn. 594; Brown v. Delano, 12 Mass. 370. As to
the effect of war on contracts of life insurance see N. Y. Life Ins. Co.
v. Stratham, 93 U. 8. 98; Cohen v. Mut. Life Ins. Co., 50 N. Y. 610,
10 Am. R. 522. Compare Worthington v. Charter Oak L. Ins. Co., 41
Conn. 401, 19 Am. R. 495, and note.

40
626 INDIANS AND CHINESE

ance, however, while war continues, but revive and will
be enforced when peace is declared, unless there is some
cogent equitable reason to the contrary.

719. Suits by and Against Alien Enemies.

Generally, during war, our courts are closed to the
subjects of the enemy, as their courts are to our subjects.
Their existing rights of action are suspended, and they
cannot without permission of the government sue in our
tribunals for the enforcement of ante bellum causes of
action until the return of peace.? A citizen may sue an
alien enemy in our courts, however, whereupon the latter
has the same rights of defense as a citizen or an alien
friend.* In fact it would seem that an enemy’s subject
who is here under an express or implied license to remain,
might sue in our courts as a citizen or an alien friend,
so long as the license is unrevoked.‘

If an alien enemy sues in our courts, his disability in
any case must be taken advantage of by plea. If the
cause of action arose before the war, it is ground for plea
either in abatement or bar, but if it arose during hos-
tilities, it is ordinarily ground for a plea in bar.®

INDIANS AND CHINESE

720. Indians.

The North American Indians (‘‘aborigines” or ‘‘na-
tives,” as they are sometimes called) occupy a peculiar
position under our law. So long as they maintain tribal

1 Griswold v. Waddington, 15 Johns. (N. Y.) 57; New York Life Ins.
Co. v. Stratham, 93 U. S. 24; Semmes v. City Fire Ins. Co., 6 Blatchf.
(U. 8.) 445, affirmed 13 Wall. 158; Kierstad ». Orange, etc., Co., 54
How. Pr. (N. Y.) 29, 25 Am. R. 199.

? Wells v. Williams, 1 Salk. 46; Dorsey ». Thompson, 37 Md. 25, 39;

‘Hopkins ». Gentry, 2 Duv. (Ky.) 285.

3 McVeigh ». U. S., 11 Wall. (U. S.) 259, 267; Buford ». Speed, 11
Bush. (Ky.) 388, 342.

4 Clark ». Morey, 10 Johns. (N. Y.) 69.

5 See 1 Chit. Pl. 447; Bell ». Chapman, 10 Johns. (N. Y.) 183.
INDIANS AND CHINESE 627

relations they are neither aliens nor citizens, strictly speak-
ing, though they closely resemble the latter.1 They have
often been described, and sometimes ironically, as ‘wards
of the government.’”’ They may become citizens in the
full sense only by naturalization under treaty or statute
of Congress especially applicable to them.? Further dis-
cussion of their peculiar status under our laws is not within
our present purpose, as legal questions growing out of it
are largely of local interest, and are naturally diminishing
in number and importance.®

721. Status of the Chinese.

Persons of the Chinese race are not entitled to natural-
ization under our laws.* But children born of Chinese
parents while actually domiciled here are citizens by
birth under the fourteenth amendment to the federal
constitution.®

Under the treaties and the laws of Congress known as
Chinese exclusion acts, Chinese are only admitted to the
country under restrictions which we will not take space
to enumerate.® These acts are constitutional as an exer-
cise of that power necessarily inherent in sovereignty to
exclude foreigners or to admit them to its territory upon
such terms only as it sees fit to prescribe.’ When once
admitted or lawfully within our territory, however, China-
men, like other aliens, are entitled to the equal protection

1 See Jackson v. Goodell, 20 Johns. (N. Y.) 188; Roff v. Burney, 168
U. S. 218.

? In re Camille, 6 Fed. 256, 6 Sawy. (U. 8.) 541.

3 For comprehensive articles on this subject see 16 Am. & Eng.
Ency. L. 213 and 22 Cyc. 112. As to Indian marriage, see ante, sec. 80.

‘ The power to become naturalized is confined to free white persons
and to aliens of African nativity or descent. U.S. Rev. Stat. (1878),
sec. 2169.

5 In re Wong Kim Ark, 169 U. S. 649.

® See Treaty of 1880; 32 U.S. Stat. L. 176, 1 Fed. Stat. Ann. 754, 34
U.S. Stat. L. 911.

7 Fong Yue Ting v. U.S., 149 U.S. 698; United States ». Williams,
194 U. 8. 279; ante, sec. 713.
628 INDIANS AND CHINESE

of the laws, nor can they be deprived of life, liberty or
property without due process of law.!

1 Wong Wing ». U.S., 163 U. S. 228. Compare Yamataya v. Fisher,
189 U. S. 86. A statute or ordinance compelling Chinamen to reside
in a certain locality or district has been held unconstitutional and void.
In re Lee Sing, 43 Fed. 359.
CHAPTER LVIII

GUARDIAN AND WARD—IN GENERAL—KINDS OF GUARD-
IANS-——APPOINTMENT

722. Guardianship in General—Definitions.

A guardian in our modern law is one who is legally in-
trusted with the person or property, or both, of another
known as the ward, whose youth, insanity or other cause
is deemed by law to disable him from properly managing
his own affairs.!

Though the definitions of a guardian make prominent
the protection of the ward as the object of guardianship,
protection to those who deal with him, or who have rights
against him or his property, plays an important though
subsidiary part.’

The history and origin of the different kinds of guard-
ianship is more or less obscure, and many of the forms of
guardianship spoken of in the older books, being of feudal
origin, are obsolete in England and have never been known
here. It seems that the only kind of guardianship known
to the common law was over infants, and that guardian-
ship over other classes of incompetents is of chancery or
statutory origin.’

The several kinds of guardians familiar to the law of
this country may be classified thus:

2 Natural Guardians,
y According to Source | 2. Testamentary Guardians,
of Their Authority. 4 3. Judicial (a) Chancery Guardians,
[ Guardians ( (b) Probate Guardians,
4, Guardians by Nomination of the Infant.

1See Schouler’s Dom. Rel. (5th Ed.), sec. 283. A guardian is one
whose duty it is to protect the rights, whether of person or property, of
some other person, his ward, who, as in the case of minors, is conclu-
sively presumed to be incompetent to manage his affairs. Woerner on
Guard., sec. 14.

2 See post, sec. 762.

? See 2 Kent’s Com., 219 et seq.; ante, secs. 635, 675, 691.

629
630 APPOINTMENT OF GUARDIAN

Scope of Their + 2. Guardians of the Estate,
Authority. 8. Guardians ad litem.
III. According to the (1. Guardians of Infants,
Character of A Guardians of Lunatics,

II. According to the {3 Guardians of the Person,

Ward. 3. Guardians of Spendthrifts and Drunk-
ards.t

723. Guardians by Nature and for Nurture.

Guardianship by nature and for nurture, though differ-
ing from one another in English law, are now practically
merged, and denote neither more nor less than the rights
and duties of parents as to their minor children, termed
natural guardianship, and sometimes guardianship by na-
ture.2 The nature and extent of parental rights and duties
having already been. discussed, the subject of natural
guardianship requires no further separate notice.

724. Testamentary Guardians—Who May Appoint.

Testamentary guardianship, or guardianship estab-
lished by deed or will, is of statutory origin, and is hence
occasionally called statute guardianship, though the same
term is sometimes used of probate guardians. It dates
in England from 12 Car. 11, Chap. 24.2 In this country

1 Among the forms of guardianship formerly known to the English
law were guardianship in chivalry, which belonged to the lord as an
incident of tenure of knight service, abolished by statute, 12 Charles II,
Chap. 24, and guardianship in socage, which devolved upon the next of
kin who could not possibly inherit, and arose where an infant inherited
lands held in socage. It extended to the person of the infant and the
lands inherited, and terminated when the ward, having reached the
age of fourteen, nominated his own guardian. This form of guardian-
ship is practically unknown in this country save in New York where it
still exists in a modified form, being confined, of course, to the real
property of the ward. See 1 Bl. Com. 461, 2 Kent’s Com. 221, 223;
Foley v. Mut. Life Ins. Co., 138 N. Y. 333, 34 Am. St. R. 456, 20 L. R.
A. 620.

2See Schouler’s Dom. Rel. (5th Ed.), sec. 285; 2 Kent’s Com.
219.

3 See also the Guardianship of Infants Act of 1886.
APPOINTMENT OF GUARDIAN 631

it rests in a few states upon that statute as part of the
common law.! In most of them, however, it is authorized
by local statutes. By many of these the father only is
authorized to make the appointment,? though a more
liberal and just policy in some states enables the mother
to appoint if the father dies without making an appoint-
ment, or requires the consent of the mother to an appoint-
ment by the father, or confers the right to appoint solely
upon the parent who survives. In any case the appoint-
ment must be made by the party authorized by the
statute, or it is void,*® though the court may, in a proper
case, respect the choice expressed if the selection is other-
wise a proper one, a rule most frequently applied where
a father attempts to appoint a testamentary guardian for
his bastard child, or the attempted appointment is by
the mother.‘ Furthermore, the attempt of an unauthor-
ized person to appoint a testamentary guardian may
create the appointee a trustee of property affected by the
instrument of appointment, if its language may reason-
ably be construed to create a trust.® ,

725. Same—Mode of Appointment.

In most of our states the appointment of a testamen-
tary guardian may be either by deed, or by will validly
executed, but in some it can be made only by will.6 But

1 Munro ». Ritchie, 8 Cranch C. C. 147; Ingalls ». Campbell, 18 Oreg.
461; Wardwell ». Wardwell, 9 Allen (Mass.), 518; In re O’Connell, 102
Ta. 355.

2See Matter of Van Houten, 2 Greens Ch. (N. J.) 220, and note
thereto in 29 Am. D. 713.

3 Camp »v. Pittman, supra; Lamar v. Harris, 117 Ga, 993.

4 Ramsay v. Thompson, 71 Md. 315, 6 L. R. A. 705; In re O’Connell,
102 Ia. 355; Hernandez v. Thomas, 50 Fla. 522, 111 Am. St. R. 137,
21. R. A. (N. 8.) 203.

5 Camp ». Pittman, supra; Matter of Lichtenstadter, 5 Dem. (N. Y.)
214. But see Brigham v. Wheeler, 8 Met. (Mass.) 127.

*Ex parte Ilcheiter, 7 Ves. Jr. 348; Wardwell v. Wardwell, 9 Allen
(Mass.), 518; Dorsey v. Sheppard, 12 Gill. & J. (Md.) 192, 37 Am. D.
77. =
632 APPOINTMENT OF GUARDIAN

the instrument need not be probated,! unless, as in most
states, the statutes require probate.”

In most states a testamentary guardian is now required
to qualify and give a bond, at least before he can lawfully
act as guardian of the estate, unless the instrument of
appointment expressly dispenses with a bond.’

726. Judicial Guardians—Chancery and Probate
Guardians.

Courts of equity are generally regarded in this country,
as in England, as having jurisdiction to appoint guardians
for infants and other incompetents, to control and super-
vise them in the execution of their trusts, and to remove
them under appropriate circumstances and appoint others
in their stead. Guardians so appointed are often called
chancery guardians. But in most of the states, if not in
all, similar authority is vested by statute in the courts
having jurisdiction over matters of probate and the settle-
ment of estates. Their appointees are termed probate,
and sometimes statute, guardians, though the latter term
is also applied to testamentary guardians. Whether this
jurisdiction of the probate courts is exclusive, or is con-
current with that of courts of general equity jurisdiction,
must depend upon the statutes in each state. Usually,
however, the probate jurisdiction will be found concur-
rent with that of the chancery courts, and subject to their
supervisory powers when fairly necessary.*

‘ Brigham »v. Wheeler, supra; Woerner on Guard., sec. 20.

2 Wardwell ». Wardwell, 9 Allen (Mass.), 518; Describes ». Wilmer,
69 Ala. 25, 44 Am. R. 501.

3 See Wadsworth v. Connell, 104 Ill. 369; Woerner on Guard., sec. 20.

4Story’s Eq. Jur., secs. 1328 et seq.; Pomeroy’s Eq. Jur., sec. 78;
People »v. Wilcox, 22 Barb. (N. Y.) 178; Matter of Andrews, 1 Johns.
Ch. (N. Y.) 99; Preston v. Dunn, 25 Ala. 507. See also ante, secs. 480,
628. As to the precise origin of chancery jurisdiction over guardians
of the insane, see Meurer’s Appeal, 119 Pa. 115, Dodge ». Cole, 97
Til. 338, 37 Am. R. 111. Compare Oakley v. Long, 10 Humph. (Tenn.)
254.

5 In re Guardianship of Klein, 95 Wis. 246.
APPOINTMENT OF GUARDIAN 633

727. Same—Jurisdiction to Appoint.

As a general rule, no court can appoint a guardian of
any kind for a person who is not domiciled within its
jurisdiction, unless he has property within such jurisdic-
tion, or is there involved in litigation that may affect his
personal status or rights, as where the suit is for di-
vorce.!

728. Guardian by Nomination of the Infant.

While an infant cannot nominate another in place of
either his natural? or his testamentary guardian,’ or,
perhaps, in place of his chancery guardian,* he may, by
statutes in most states, upon reaching the age of fourteen
nominate his own guardian, and the court will be bound
to respect his choice even though a guardian already ap-
pointed would be superseded,* unless the nominee be in
some way unfit for the trust,® or his appointment would
be likely for some other reason to be prejudicial to the
ward.? The ward, it seems, can exercise his right of
nomination but once,® and must do so in the manner pre-
scribed by statute.

1 See Minor’s Confl. Laws, secs. 114 et seq. Doubtless, however, the
courts may appoint guardians for infants found within their jurisdic-
tion, regardless of technical questions of domicile, though due regard
will always be paid to the rights of the domiciliary guardian, if any,
so far as this can be done without detriment to the ward. See post,
sec. 743; Woodworth ». Spring, 4 Allen (Mass.), 321; Hospital v. Gatti,
9 Ariz. 105, 7 L. R. A. (N. 8.) 306. See also as to adoption, ante,
sec. 465, note 3. See also post, sec. 743.

2 Beard v. Dean, 64 Ga. 258.

3 Sessions v. Kell, 30 Miss. 458; Robinson v. Zollinger, 9 Watts (Pa.),
169.

‘ Matter of Nicoll, 1 Johns. Ch. (N. Y.) 25; Sessions v. Kell, supra.

’ Adams’s Appeal, 38 Conn. 304. Contra, Dibble v. Dibble, 8 Ind.
307; Ham». Ham, 15 Gratt. (Va.) 74.

* Sherman 7. Ballou; 8 Cow. (N. Y.) 304; Bryce v. Wynn, 50 Ga.
332; Munro ». Ritchie, 3 Cranch C. C. 147; Kelley ». Smith, 15 Ala.
687.

7 Lee’s Appeal, 27 Pa. 229.

8 Lee’s Appeal, ‘supra
634 APPOINTMENT OF GUARDIAN

729. Who Should Be Appointed Judicially.

Usually a non-resident will not be appointed guardian,
as it is often necessary to his proper control that he should
be within the jurisdiction of the court.!_ In the absence of
statute, however, the appointment of a non-resident is a
matter of discretion and not of strict rule.?

Formerly there was doubt as to the competency of a
married woman to act as guardian, but in most states her
appointment will be valid, at least if her husband con-
sents.’

The appointment of an executor or administrator is
usually improper, since he may be compelled to represent
interests conflicting with those of the ward. The appoint-
ment of one who is already trustee for the ward is usually
proper.®

As a rule a corporation cannot act as a guardian, but in
many states incorporated trust companies are empowered
by law to act as guardians and their appointment is then
proper, at least where personal custody and control of
the ward or supervision of his education is not required.®

730. Considerations Governing the Selection.

The selection of a guardian is a matter peculiarly within
the discretion of the court, and its appointment will not
be disturbed except for manifest error or abuse, in view
of the principle that the permanent welfare of the infant
is the primary and controlling consideration, due regard
being had to the natural ties of blood and affection.’

1 Stuart v. Bute, 9 H. L. Cas. 440; Matter of Johnson, 87 Ia. 130.

2 Berry v. Johnson, 53 Me. 401; Martin ». Tally, 72 Ala. 23.

* Palmer v. Oakley, 2 Doug. (Mich.) 483, 47 Am. D. 41; Byrom ».
Gunn, 102 Ga. 565.

4 Ex parte Crutchfield, 3 Yerg. (Tenn.) 336.

5 Bennett v. Byrn, 2 Barb. Ch. (N. Y.) 216.

§ Matter of Buckler, 96 N. Y. App. Div. 397, 89 N. Y. Supp. 206.
Compare 42 Mich. 528.

7 Matter of Vandewater, 115 N. Y. 669; Matter of Stockman, 71
Mich. 180; Describes », Wilmer, 69 Ala. 25, 44 Am. R. 501; Foster 2.
Mott, 3 Bradf. Surr. (N. Y.) 409, 412. See also ante, sec. 480.
APPOINTMENT OF GUARDIAN 635

While the wishes of an infant under fourteen may be
consulted, they are entitled to only such weight as the
court sees fit to give them.! The known wishes of a parent,
whether living or dead, are entitled to weight, but are by
no means conclusive.’

Ordinarily, and in the absence of strong reasons to the
contrary, the parents of a minor child are entitled to be
appointed guardians of its estate. The father will usually
be preferred to the mother, who is next in order of prefer-
ence;* and after her come the nearest relatives.‘ In the
selection of a guardian of the person, one will usually be
preferred whose religious belief conforms to that of the
ward and his parents, though this consideration by no
means controls, particularly in this country.®

731. Mode of Appointment—Qualification—Bond.

The procedure in appointing guardians naturally dif-
fers in its details in the different states. Where statutes,
as in most states, require notice to the infant and to his
parents or other relatives of the application for the ap-
pointment of a guardian, its omission, it seems, is juris-
dictional.®

Probate guardians, at least, are quite generally required
to give a bond for the faithful discharge of their duties,
and in most states their appointment confers no authority
until such bond is given and approved by the appointing

1 Walton v. Twiggs, 91 Ga. 90.

2In the matter of Johnson, 87 Ia. 130; Watson v. Warnock, 31 Ga.
716; Goss v. Stone, 63 Mich. 319; Foster ». Mott, supra. See Guardian-
ship of Tank, 129 Wis. 629.

3 Read v. Drake, 2 N. J. Eq. 78; Ramsay v. Ramsay, 20 Wis. 507;
ante, sec. 470.

4 Matter of Stockman, 71 Mich. 180.

5 See in re McGrath, 1 Ch. 143; Nicholson’s Appeal, 20 Pa. 50; In
re Turner, 19 N. J. Eq. 433.

§ See Davis v. Hudson, 29 Minn. 27; Badenhoof v. Johnson, 11 Nev.
87; In re Eikerenkotter, 126 Cal. 54; Kurtz ». W. Duluth Land Co.,
52 Minn. 140; Ramsay 2. Ramsay, 20 Wis. 507; People v. Wilcox, 22
Barb. (N. Y.) 178.
636 APPOINTMENT OF GUARDIAN

court.!_ The liability of sureties upon guardian’s bonds
is discussed later on.?

Whether the administration of an oath or the issuance
of formal letters of guardianship are prerequisite to the
valid appointment of a guardian must depend upon the
language and interpretation of particular statutes.®

Statutes commonly prescribe the amount of a guard-
ian’s bond, usually at twice the value of the personal
property.

Laws authorizing trust companies to act as guardians
commonly dispense with the bond, as the capital of the
corporation or securities belonging to it deposited with
the state are deemed ample protection to the ward.‘

1 Holden »v. Curry, 85 Wis. 504; State ». Sloane, 20 Ohio, 327; Hatch
»v. Furgeson, 57 Fed. 966, 68 Fed. 43; Clarke v. State, 8 Gill & J. (Md.)
111. But see Palmer v. Oakley, 2 Doug. (Mich.) 433, 47 Am. D. 41;
Fay v. Hurd, 8 Pick. (Mass.) 528; Hunt ». Insley, 56 Kan. 213; Cuyler
v. Wayne, 64 Ga. 78.

2 See post, secs. 769 et seq.

3 See Lee v. Ice, 22 Ind. 384.

4 Matter of Cordova, 4 Redf. (N. Y.) 66.
CHAPTER LIX

NATURE AND SCOPE OF GUARDIAN’S OFFICE—FOREIGN
AND ANCILLARY GUARDIANSHIP—GUARDIANS AD LITEM

732. Nature of Office in General.

As to the ward’s person the guardian stands in loco
parentis, and is sometimes described as a quasi parent.
But when the natural guardian is living, the appointment
of a guardian will be construed to extend to the estate only
and not to the person, unless such natural guardian has
been found unfit to have custody of the child.!

As concerns the estate, the precise nature of the guard-
ian’s office and title is somewhat uncertain. Clearly he
takes no title to the ward’s realty. As to personalty, it is
usually held that he is a mere agent or trustee whose
power is not coupled with an interest,? though it is some-
times said, as to personalty at least, that he is a trustee in
interest. The question seems of practical importance
chiefly in so far as it may determine, in the absence of
statute, whether suits touching the ward’s estate must be
brought in the name of the guardian, or in the name of
the ward by the guardian.* In many states this matter
is determined by statute.‘

' Brooke v. Logan, 112 Ind. 183, 2 Am. St. R. 177; McDowell ».
Bonner, 62 Miss. 278. See statutes in the several states. See also ante,
sec. 480.

? Lamar v. Micou, 112 U. 8. 452.

*See 15 Am. & Eng. Ency. Law, (2d Ed.) 54, and cases cited in
notes ] and 2. See and compare Judson ». Walker, 155 Mo. 166, with
Mueller v. Brenner, 69 Ill. 108. For English rulings see Schouler’s
Dom. Rel. (5th Ed.) sec. 321; post, secs. 741, 748.

‘See Norton v. Ohrns, 67 Mich. 612, R. 8. Wis. 1898, sec.
3982,

637
638 NATURE OF GUARDIAN’S OFFICE

733. Guardian Entitled to Possession of Ward’s
Estate.

In any case, it is the right and duty of the guardian
to take possession of the ward’s property, both real
and personal, within the jurisdiction of his appointment,’
and his possession is in legal effect possession by the
ward.?

734. Same Person Guardian and Personal Repre-
sentative.
. Sometimes the same person is appointed both guardian
and executor or administrator. Where this is the case he
cannot be sued in both capacities, nor can his sureties in
one capacity be held for his defaults in the other. He is
chargeable primarily as executor or administrator, and he
so continues until, in fact or in contemplation of the law,
the property or funds of the estate to which the ward is
entitled have been carried over from his account as per-
sonal representative to his account as guardian. Ordi-
narily his accounts rendered in court will show the transfer.
In other cases slight evidence will be held to show a trans-
fer, as the division of the estate among other legatees or
distributees, placing chattels on the ward’s land, and the
like.* Indeed it is held in several states that the transfer
will be legally regarded as having taken place, and the
guardian chargeable as such, and his sureties as guardian
liable, from the time when it was his duty to settle his
accounts as executor or administrator and hold the prop-
erty as guardian.‘

1 Pierce v. Prescott, 128 Mass. 140, 146.

2 Davis v. Rame, 1 McCord, Ch. (8. Car.) 191; Williams ». Walton,
8 Yerg. (Tenn.) 387, 29 Am. D. 122; Sallee ». Arnold, 32 Mo. 532, 82
Am. D. 144; Tenney v. Evans, 11 N. H. 346.

* Broadus v. Rosson, 3 Leigh (Va.), 12; Johnson ». Johnson, 2 Hill
Ch. (8. Car.) 277, 29 Am. D. 72; Drane v. Bayliss, 1 Humph. (Tenn.)
174. But see Conkey v. Dickinson, 13 Met. (Mass.) 51.

4 Stanley’s App., 8 Pa. 431, 49 Am. D. 530; In re Mackintosh, 158
Pa. 525; Watkins v. State, 2 Gill & J. (Md.) 220; Adams v. Gleaves, 10
Lea (Tenn.) 367. See, however, Burton v. Anderson, 5 Harr. (Del.)
NATURE OF GUARDIAN’S OFFICE 639

735. Joint Guardians—One Guardian for Several
Wards.

In this country if one of several joint guardians dies,
resigns or is removed, the trust devolves upon the other
or others,! and a like rule applies where one of several
joint guardians under a will declines the trust.”

While one of several joint guardians is liable, as a rule,
only for such property of the ward as actually came into
his possession or under his control, he is liable where he is
negligent in permitting the other guardian to waste or mis-
apply the estate, or connived in his wrongdoing.? Where
one guardian represents several wards, he is liable to each
as upon a separate trust.‘

736. Quasi Guardians.

The terms quasi guardian and guardian de son tort, or
guardian by estoppel, are sometimes applied to those who
assume to act as guardians without valid authority. Such
persons may usually be held as trespassers at law, or are
liable in equity either as guardians or trustees at the elec-
tion of the ward.* Like rightful guardians, however, quasi
guardians are entitled to credit for all sums properly ap-
plied to the ward’s benefit.®

Where the intermeddling was intentional rather than
the result of honest mistake, the quasi guardian will be
held to the strictest accountability.

221; Burton v. Tunnell, 4 Harr. (Del.) 424; Cluff ». Day, 124 N. Y.
195; Potter v. Ogden, 136 N. Y. 384; Gilmer v. Baker, 24 W. Va. 72.

1 Kevan v. Waller, 11 Leigh (Va.), 414, 36 Am. D. 391; People ».
Byron, 3 Johns. Cas. (N. Y.) 53; Pepper v. Stone, 10 Vt. 427.

2 Matter of Reynolds, 18 N. Y. 41; Kevan v. Waller, supra.

3 Pim v. Downing, 11 Serg. & R. (Pa.) 66; Clark’s App., 18 Pa. 175;
Hocker v. Woods, 33 Pa. 466.

4 Croft ». Terrell, 15 Ala. 652; Weyand’s Est., 62 Pa. 198. See post,
sec. 774,

5’ Sherman ». Ballou, 8 Cow. (N. Y.) 304; Evans v. Pierce, 15 Gratt.
(Va.) 513, 78 Am. D. 635; Gilfillen’s Est., 170 Pa. 185, 50 Am. St. R.
760.

‘In re Besondy, 32 Minn. 385, 50 Am. R. 579; Matter of Beisel, 110
Cal. 267; Gilfillen’s Est., supra.
640 NATURE OF GUARDIAN’S OFFICE

737. Foreign and Ancillary Guardianship.

At common law the guardian’s office is strictly local,
and he has no power or authority over the person or
property of the ward outside the jurisdiction of his ap-
pointment.! Neither can he sue outside the state of his
appointment without statutory authorization.2 Whether
he is liable to be sued elsewhere seems unsettled.* Neither
can he be called upon or permitted to account in any
court save that of his appointment,’ though a guardian
who has removed to a foreign state with the property of
his ward, may doubtless be sued there for money had and
received upon a refusal to account to the ward who has
come of age,> or may be compelled to account in a court
of general equity jurisdiction.

Unless the foregoing rules have been modified by comity
or statute, authority over the person and property of the
ward in a state other than that of the original guardian-
ship can be exercised only by virtue of a special appoint-
ment in such other state. The guardianship thus created
is called ancillary, being deemed in many respects sub-

1 Johnstone v. Beattie, 10 Cl. & F. 42; Hoyt v. Sprague, 103 U. 8S. 537;
Morgan 2». Potter, 157 U. 8. 195; Earl ». Dresser, 30 Ind. 11, 95 Am. D.
660. The tendency of modern decisions, independent of statute, is
toward recognizing the right of a foreign domiciliary guardian to the
custody of his ward, even to the extent of permitting him to remove the
ward to the jurisdiction where he was appointed, due regard being
always had to the best interests of the ward. Nugent v. Vetzera, L. R.
2 Eq. 704; Woodworth ». Spring, 4 Allen (Mass.), 321; Grimes v. Butsch,
142 Ind. 113; Taylor v. Jeter, 33 Ga. 195, 81 Am. D. 202; Townsend ».
Kendall, 4 Minn. 412, 77 Am. D. 534; Kelsey v. Green, 69 Conn. 291,
38 L. R. A. 471; In re Stockman, 71 Mich. 180. Compare Johnstone
». Beattie, supra. See post, sec. 743.

2 Morgan ». Potter, 157 U. 8. 195; Potter v. Hiscox, 30 Conn. 508;
Grist v. Forehand, 36 Miss. 69. Compare McCleary ». Menke, 109 Ill.
294,

* See Glendenning v. Conrad, 91 Va. 410; Donley ». Shields, 14 Ohio,
359.

‘ Bell v. Suddeth, 2 Sm. & M. (Miss.) 532; Burnet v. Burnet, 12 B.
Monr. (Ky.) 323; Anderson »v. Story, 53 Neb. 259.

5 Pickering ». De Rochmont, 45 N. H. 67.
NATURE OF GUARDIAN’S OFFICE 641

servient or subordinate to the prior appointment.' Usually
the guardian first appointed, particularly if he be the
domiciliary one, will be granted letters of ancillary guard-
ianship.?

In view of the inconvenience incident to the common-
law rules as to foreign and ancillary guardianship, stat-
utes have been enacted in a number of states authorizing
foreign guardians to take possession of the personal es-
tate of wards situated within their borders and remove it
to the state of their appointment, upon compliance with
the conditions imposed by law. Usually, however, the
foreign guardian is not absolutely entitled under these
statutes, but the court should exercise a sound discretion
in permitting or forbidding the removal, due regard being
had to the interests of the ward and the protection of
residents of the state.®

Usually it is the duty of the domiciliary guardian to
maintain the ward if the property in his hands is ade-
quate, and particularly where the ward resides in the
state of his domicile. If the domiciliary guardian has no
property, or it is insufficient, however, the ancillary guard-
ian may support the ward or contribute thereto, being
accountable for the proper expenditure of the ward’s
funds for that purpose.‘

738. Guardians ad Litem.
We have seen that an infant must be represented in
civil suits by an adult who, in the case of an infant plain-

1 See post, sec. 743; In re Gable, 79 Ia. 178, 9 L. R. A. 218.

2 Hoyt v. Sprague, 103 U. S. 613. See local statutes on this point.
It has been held, however, that whether a guardianship is ancillary or
not does not depend upon its being later than another one, but upon
the domicile of the ward, a prior guardianship being deemed ancillary
to a later domiciliary appointment. Com. ». Rhodes, 37 Pa. 60; Met-
calf ». Louther, 56 Ala. 312.

4 See Earl v. Dresser, 30 Ind. 11, 95 Am. D. 660; In re Wilson, 95
Mo. 184; Cochran ». Fillans, 20 8. Car. 237; Tate ». Mott, 96 N. Car.
19.

“See Kraft v. Wickey, 4 Gill & J. (Md.) 332, 23 Am. D. 569.

41
642 NATURE OF GUARDIAN’S OFFICE

tiff, is usually called a prochein ami or next friend, and in
the case of an infant defendant, a guardian ad litem;
though the latter term is often applied indifferently to one
who represents an infant litigant, whether plaintiff or de-
fendant.

Generally this appointment is made by the court under
local statutes and rules impossible here to consider. In
many states the general guardian is the proper representa-
tive of an infant defendant, unless he has adverse claims
or interests, when a guardian ad litem should be ap-
pointed.?

The effect of a judgment rendered for or against an
infant who has not been properly represented has already
been stated.’

Guardians ad litem and next friends have no control
over the ward’s person or estate. Their powers and duties
are strictly limited to the conduct and management of the
suit.4- They cannot bind the ward by admissions or stip-
ulations which are or may be against his interests,® but
are bound to see that his cause is fully and fairly prose-
cuted or defended. It follows that they cannot bind him
by a release, or by a compromise of his claims without
the sanction of the court,® or by a submission to arbitra-
tion.’

Generally the guardian ad litem is quite strictly under
the control of the court and is subject to removal for
negligence or misconduct, and is liable therefor in dam-
ages to the ward.

1 See ante, sec. 615.

* As to power of a general Zuardian to sue, see post, sec. 748.

3 See ante, secs. 616, 620.

‘See Richter v. Leiby’s Est., 107 Wis. 404.

5 Kidam v. Finnegan, 48 Minn. 53, and note thereto in 16 L. R. A.
507.

6 Edsall v. Vandemark, 39 Barb. (N. Y.) 589; Isaacs ». Boyd, 5 Port.
(Ala.) 388; Fletcher ». Parker, 53 W. Va. 422, 97 Am. St. R. 991, and
cases cited.

7 Millsaps v. Estes, 137 N. Car. 535, 107 Am. St, R. 496, 70 L. R. A.
170, 175, and note,
‘NATURE OF GUARDIAN’S OFFICE 643

In the absence of statute, right to collect a judgment in
favor of the ward is usually in the general guardian as
distinguished from the guardian ad litem. The powers of
the latter end with the recovery of judgment.!

1 See State ex rel. Lane v. Ballinger, 41 Wash. 23, 3 L. R. A. (N. 8.)
72, and note.
CHAPTER LX

RIGHTS AND DUTIES OF GUARDIAN AS TO WARD’S
PERSON

739. Rights of Guardian as to Person of Ward.

Where the authority of the guardian extends to the
person of his infant ward, his right of custody and control
is practically the same as that of a natural parent. This
is certainly the rule as to very young children or those
unfit to exercise intelligent choice.! The courts, however,
will interfere with the custody and control of a technical
guardian even more readily than with that of a natural
one where the welfare of the child requires it.?

740. Right of Guardian to Services and Earnings of
Ward.

Unlike a parent, the guardian usually has no right to
the ward’s services and earnings. Where the service is
rendered by a ward as a member of the guardian’s family,
however, some courts hold that the guardian is entitled
to them, and is not bound to allow for them as against his
claim for maintenance.®

It has been held, on the other hand, that substantial
service even in the guardian’s household should be re-
garded as extinguishing the guardian’s claim for support,‘
and by the weight of authority it seems that the ward
should always be allowed the true value of any substan-

1 Fitts v. Fitts, 21 Tex. 511; In re Van Houten, 3 N. J. Eq. 220, 29
Am. D. 707.

2 Foster v. Aleston, 6 How. (Miss.) 406; Matter of Heather, 50
Mich. 261.

* Moyer ». Fletcher, 56 Mich. 508, and cases cited.

“Marquess v. La Baw, 82 Ind. 550.

644
THE PERSON OF THE WARD 645

tial service he may have rendered the guardian, whether
greater or less than the value of his maintenance.!

741. Right to Sue for Injuries to Ward.

The guardian of the ward’s estate is in no case entitled
to recover in his own right for injuries to the ward, and
the same is true of a guardian of the person, unless he is
also a parent, for unlike the parent he usually has no
legal right to the ward’s services and earnings.”

742. Consent to Marriage, Apprenticeship, Adop-
tion, etc., of Ward.

In England, wards in chancery were forbidden to marry
without the sanction of the court, and marriage without
such sanction would ordinarily lay liable those concerned,
whether as principals or otherwise, to punishment for
contempt. No such rule seems to have been recognized
in this country, even as to chancery wards.* In this
country, furthermore, the consent of the guardian is
in no wise necessary to the valid marriage of a ward
of either sex, unless statutes provide otherwise.* Stat-
utes, however, often require the consent of guardians to
the adoption,’ apprenticeship, or enlistment of their
wards.

1 Boardman v. Ward, 40 Minn. 399, 12 Am. St. R. 749; Calhoun ».
Calhoun, 41 Ala. 369.

2 See Louisville, etc., Ry. Co. ». Goodykoontz, 119 Ind. 111, 12 Am.
St. R. 371. It would appear from this that inasmuch as a female ward
cannot sue for her own seduction, that unless the guardian is also the
parent or someone else is entitled to her services as parent or master,
there is in most states no civil remedy whatever against one who seduces
her. Blanchard ». Ilsley, 120 Mass. 487, 21 Am. R. 535. Com-
pare Ball v. Bruce, 21 Ill. 161; Palmer ». Oakley, 2 Doug. (Mich.)
433, 47 Am. D. 41; Fernsler ». Moyer, 3 W. & S. (Pa.) 416, 39 Am.
D. 33.

* Bisph. Eq. (8th Ed.) 550; Van Deuzer ». Van Deuzer, 6 Paige
(N. Y.), 279. As to the older law of wardship and marriage see 1 Pol.
& Mait. (2d Ed.) 318, et seq.

‘See ante, sec. 92.

5 See ante, sec. 465.
646 THE PERSON OF THE WARD

743. Power of Guardian as to Ward’s Domicile—
Right of Foreign Guardian to Custody of Ward.

The principal objection to a change of the ward’s domi-
cile from one state or country to another by the guardian,
lies in the fact that it may injuriously affect the powers
and capacities of the ward or the rights of his relatives by
destroying his testamentary capacity, or his right or capac-
ity to marry, or by changing the succession of his per-
sonal estate. The right of the parent acting in good
faith toward them to change the domicile of his minor
children seems generally conceded. In fact the domicile
of the child ordinarily changes with that of the parent,
though the change may in some ways be disadvantageous
to the child.!. Some courts concede a similar right to
testamentary guardians of the person,? but in no case
would it be permitted to a mere guardian of the estate,
though of testamentary appointment. Beyond this the
power of the guardian to change the ward’s domicile
from one state or country to another is generally denied.*
The power of a guardian appointed at the legal domicile
of the ward to remove the latter from a foreign jurisdic-
tion back to his domicile, even against a guardian ap-
pointed in the latter place, is more generally conceded.‘
This is upon grounds of comity rather than absolute
right, and a court of chancery has undoubted power to
forbid or restrain the removal of a ward from its juris-
diction, whether it would involve a change of domicile
or not, in any case where the ward’s interests would be
injuriously affected thereby, or where the guardian ap-

1See ante, sec. 483; Potinger ». Wightman, 3 Mer. 67; Johnstone ».
Beattie, 10 Cl. & F. 42; Townsend »v. Kendall, 4 Minn. 412, 77 Am. D.
534; Wheeler v. Hollis, 19 Tex. 522, 70 Am. D. 363.

2 See Wood v. Wood, 5 Paige (N. Y.), 596, 28 Am. D. 451.

3 Lamar v. Micou, 112 U. 8. 452; Mears v. Sinclair, 1 W. Va. 185;
Daniel v. Hill, 52 Ala. 480; School Directors ». James, 2 W. & 8. (Pa.)
568, 37 Am. D. 525; Wilkins’ Guardian, 146 Pa. 585.

‘See Nugent v. Vetzera, L. R. 2 Eq. 704; Lamar v. Micou, supra;
Grimes v. Butsch, 142 Ind. 118; Taylor v. Jeter, 33 Ga. 195, 81 Am. D.
202; Woodworth ». Spring, 4 Allen (Mass.), 321.
THE PERSON OF THE WARD 647

pears to be acting in bad faith or for his own benefit. at,
the expense of the ward or his relatives... The guardians’
power to change the ward’s local or municipal residence
or domicile, however, is generally admitted, so that a
mere change from one town or county to another within
the state will not be interfered with unless there is some
showing of bad motive or abuse.’

744. Right to Control and Discipline Ward.

The rights of parents, teachers, and others standing in
loco parentis to control and discipline infants has been
considered elsewhere.? Guardians of the persons of in-
fants have substantially the same rights as parents in this
respect, with the difference that they are liable, not only
criminally, like a parent, but civilly to the ward as well,
for legally excessive chastisement.*

746. Guardian’s Duty of Maintenance and Education.
Generally the guardian is bound to maintain and educate
the ward in a manner suitable to his means and station
in life. But save in the case of natural guardians, this
duty is owing, as a rule, only where the guardian has prop-
erty or income of the ward sufficient to meet the expense.°®
In discharge of his duty of maintenance and education,

1 Kelsey ». Green, 69 Conn. 291, 38 L. R. A. 471; Wood ». Wood, 5
Paige (N. Y.), 596, 28 Am. D. 451; Townsend v. Kendall, 4 Minn. 412,
77 Am. D. 534. See note to New York Foundling Hospital ». Gatti, 9
Ariz. 105, in 7 L. R. A. (N. 8.) 306.

2 Jac. on Dom., sec. 257; Wilkins’ Guardian, 146 Pa. 585; Ex parte
Bartlett, 4 Bradf. Sur. (N. Y.) 221; Lamar ». Micou, 112 U. 8. 453;
Kerkland ». Whatten, 4 Allen (Mass.), 462; Townsend v. Kendall,
supra. Even this limited power of removal is denied in one state.
Marthienke v. Grotthaus, 72 Mo. 204.

3 See ante, secs. 484, 485, 534.

4 See post, sec. 764.

®In the absence of property or income there is no alternative but
to throw the ward upon the world, apprentice him, or consign him to
some public institution, unless the guardian is willing to maintain and
educate him at his own expense in exchange for such services as the
ward may render.
648 THE PERSON OF THE WARD

the guardian should resort first to the income of the
ward’s estate.! Indeed the English rule seems strict
against any encroachment upon principal even for these
purposes unless the court sanctions it in advance.? In
this country also, in the absence of statute, the guardian
should not encroach upon the corpus of the ward’s estate
without the previous sanction of the proper court. But
in case of emergency or practical necessity, at least, the
courts will usually ratify reasonable expenditures of
principal made without order of court for support and
education, and will allow the guardian reimbursement
where such expenditures would plainly have been sanc-
tioned had application been made to the court in the first
instance. But there must be a plain equity in favor of
the guardian, and where he has permitted a ward to live
in idleness who might have been put to work and earned
his own living, he has been denied the right to credit for
support out of the corpus of the ward’s estate.®

1 Patton v. Thompson, 2 Jones’s Eq. (N. Car.) 411, 67 Am. D. 222;
Bond v. Lockwood, 33 Ill. 212; Bybee v. Tharp, 4 B. Monr. (Ky.) 313;
Villard v. Robert, 2 Strobh. Ch. (8. Car.) 40, 49 Am. D. 654, and note
at p. 657.

2 See Schoul. Dom. Rel. (5th Ed.), 338.

‘3 Bellamy v. Thornton, 103 Ala. 404; Patton ». Thompson, supra;
Gilbert v. McEachen, 38 Miss. 469; Ellis v. Soper, 111 Ia. 631, and cases
cited in note above.

41 Story’s Eq., sec. 1355; Gilbert ». McEachen, supra; Olsen ».
Thompson, 77 Wis. 666; Bond ». Lockwood, 33 Ill. 212; Hobbs ».
Harlan, 10 Lea (Tenn.), 268, 43 Am. R. 309; Johnson ». Coleman, 3
Jones’s Eq. (N. Car.) 290. If there is no income the guardian should
encroach upon personalty before realty. Indeed in most states he can-
not dispose of or encumber realty even in cases of emergency, without
the aid of a special proceeding. See post, sec. 757.

5 Marquess v. La Baw, 82 Ind. 550, and cases cited; Clark ». Clark,
8 Paige (N. Y.), 152, 35 Am. D. 676; Anderson v. Thompson, 11 Leigh
(Va.), 439, 458; Brown’s Appeal, 112 Pa. 18.
CHAPTER LXI

RIGHTS, POWERS AND DUTIES OF GUARDIAN AS TO
WARD’S ESTATE

746. In General—Good Faith—Care and Prudence.

The right and duty of the guardian to take possession
of the ward’s estate, both real and personal, has already
been stated.! This is but an incident to his further and
more important duty to preserve it and make it produc-
tive. Related to these duties and incidental to them and
to the duty to maintain and educate the ward is the
power to sell and dispose of the ward’s estate. Respecting
all these duties there is one cardinal principle from which
the courts never depart, and that is that like all other
fiduciaries the guardian is bound to exercise the greatest
good faith in all transactions where the ward’s interests
are involved.” Aside from this, however, he is bound in
general for such care and prudence only as characterize
men of ordinary or average business capacity in the man-
agement of their own affairs, for a more stringent rule
would not only be unjust and oppressive, but would
deter men of probity and responsibility from accepting
such trusts.’

747. Same—Collection and Protection of Ward’s Es-

tate.
Though the English chancery practice was somewhat
different,‘ a general guardian in this country, whatever

1 See ante, sec. 733.

2 French v. Currier, 47 N. H. 98; post, secs. 763, 768.

3 Harvard College v. Amory, 9 Pick. (Mass.) 446, 461; Gott ». Culp,
45 Mich. 265; State v. Slevin, 93 Mo. 253, 3 Am. St. R. 526; Balthaser’s
Appeal, 133 Pa. 338; Pierce v. Prescott, 128 Mass. 140.

«Schoul. Dom. Rel. (5th Ed.), sec. 323.

649
650 THE WARD’S ESTATE

the source of his appointment, usually has the control
and custody of all the ward’s estate, and acts largely upon
his own initiative and at his own risk. It is his duty,
therefore, to collect all debts due the ward and to reduce
to his possession all property real or personal to which
the ward is lawfully entitled.!| It follows, therefore, that
damages recovered by the ward should be paid to his
guardian and not to him or his next friend.

Where the property of the ward is in the hands of
trustees having no active duties to perform, it would
seem that the guardian is entitled to its possession as
against them, though the rule is doubtless otherwise
where the trust is active and possession by the trustees is
necessary to its proper execution.

Whenever it is the right and duty of the guardian to
take possession of his ward’s estate, his want of reason-
able diligence in so doing, or in reducing choses in action
to his possession whereby the ward suffers loss, will ren-
der him and his bondsmen liable.?

748. Same—Right to Sue.

It would seem to follow from what has been said, that
a general guardian should be permitted to sue for the
recovery and protection of the ward’s property, real and
personal, without the appointment of a prochein ami or
next friend, and this is the prevailing rule.? The action
in such cases should in most states be brought in the name
of the ward by the guardian as such,‘ though in many, by
statute or otherwise, the guardian may sue in his own

‘Lee v. Lee, 55 Ala. 590; Boruff v. Stipp, 126 Ind. 32; Potter ».
Hiscox, 30 Conn. 508; Pierce v. Prescott, 128 Mass. 140.

2 Pierce v. Prescott, supra; Love v. Logan, 69 N. Car. 70.

* Vincent ». Starks, 45 Wis. 458; Boruff v. Stipp, 126 Ind. 32, and
cases cited in Schoul. Dom. Rel. (5th Ed.), sec. 348, note 7.

4King v. Cutts, 24 Wis. 625; Vincent ». Starks, supra; Hutchins v.
Dresser, 26 Me. 76; Bradley v. Amidon, 10 Paige (N. Y.), 235; Perine
v, Grand Lodge, 48 Minn. 82; Brock v. Rogers, 148 Mass. 545, 2 L.
R. A. 447.
THE WARD’S ESTATE 651

name as guardian for the particular ward he represents. !
Where the action is founded upon a special contract with
the guardian, however, though it be for the benefit of the
ward, the guardian may sue and be sued in his own name,’
and this would seem to be the logical rule, at least in most
states, for such contract is deemed to bind the guardian
personally and not the ward or his estate.* For injuries
not affecting the estate of the ward, the ward himself
must sue by prochein ami or next friend, unless, as in
some states, the statute authorizes suit by the general
guardian.‘

This whole matter is so much affected by local codes
and rules of practice that any adequate presentation of
the law for all the states is out of the question. Naturally
where the guardian himself is an adverse party or has an
adverse interest, the ward must be represented by guard-
ian ad litem or next friend.

749. Duty of Guardian to Make Ward’s Estate Pro-
ductive.

The guardian, like any other trustee, is bound to use
due diligence to make the trust estate productive, and if
he defaults in this respect he will be chargeable with what
he would have received as rent, interest or other income,
had he performed his duty,* and sometimes with a staiu-
tory penalty beside.®

1Hutton v. Williams, 35 Ala. 503, 76 Am. Dec. 297; Turner ».
Alexander, 41 Ark. 254; Record v. Central Pac. Ry. Co., 15 Nev. 167;
Beecher v. Crouse, 19 Wend. (N. Y.) 306. .

2 McKinney ». Jones, 55 Wis. 39; Thomas v. Bennett, 56 Barb.
(N. Y.) 197; Stevenson ». Bruce, 10 Ind. 397; Hightower ». Maull,
50 Ala. 495; McLean v. Dean, 66 Minn. 369; Catron v. Lafayette Co.,
106 Mo. 659.

3 See post, sec. 762.

4 See Illinois Cent. Ry. Co. v. Head, 27 Ky. Law, 270.

6 Shurtleff v. Rile, 120 Mass. 131; Thompson ». Thompson, 92
Ala. 545; Clark ». Burnside, 15 Ill. 62; Thackray’s Appeal, 75 Pa.
132.

6 Colburn v. State, 47 Ind. 310.
652 HE WARD'S ESTATE .

750. Duty as to Ward’s Lands—Leases—Rents—
Easements.

It is said that at common law a guardian (except in
chivalry) has no power to lease the ward’s lands.! But
express or implied authority to lease will be found in the
statutes of most states, or is regarded as inherent in the
guardian’s office as part of his general duty to make the
ward’s estate productive. The lease, however, will not
be valid beyond the life of the ward, or the period of his
disability or the guardianship, though the ward, or his
representative, or the successor of the guardian in office,
may ratify or avoid the lease as to the excess at his option.?
The duty of the guardian to lease is not absolute. If he
can make the ward’s land equally productive by cultivat-
ing it, it is proper to do so, though he must cultivate it in
a husbandlike manner and subject to the rules against
waste.’ It is the duty of the guardian to use due diligence
to collect the rents of the ward’s real estate promptly,
and he may sue for them like other debts due the estate.‘
Usually the guardian may assign dower in the ward’s
lands.’ He can grant no license or private easement,
however, beyond the term of his office,* nor can he waive
or relinquish the ward’s homestead rights.”

1 Webster v. Conley, 46 II]. 13, 92 Am. D. 234.

2 People v. Ingersoll, 20 Hun (N. Y.), 316; Richardson ». Richardson,
49 Mo. 29; Emerson ». Spicer, 46 N. Y. 594; Snook v. Sutton, 5 Halst.
(N. J.) 183; Weldon ». Lytle, 53 Mich. 1. But the guardian cannot
make an oil or mining lease as that would empower the tenant to take
the corpus of the land. Stoughton’s Appeal, 88 Pa. 198. In some
states the power to lease, or to lease without order of court, is regulated
by statute. See Field ». Herrick, 101 Ill. 110. Compare 58 Ia.
308.

? Willis ». Fox, 25 Wis. 646; Remington ». Field, 16 R. I.
509.

‘See ante, sec. 748.

° 1 Washb. Real Prop. 226, and cases cited. Contra, under statute
in Illinois, Heisen v. Heisen, 145 Il]. 658, 21 L. R. A. 484.

6 Indianapolis ». Kingsbury, 101 Ind. 200, 51 Am. R. 749.

7 Ratcliff ». Davis, 64 Ia. 467.
THE WARD’S ESTATE 653

761. Encumbrances—Improvements—Changing Char-
acter of Property.

It is the duty of the guardian, so far as he has funds,
to pay the interest on encumbrances on the ward’s prop-
erty, and he has power, where there are available funds,
to pay off the corpus of the debt.! His right to sell. or
encumber lands, except under special proceedings in
court, is generally denied.? If the guardian invests the
ward’s funds or personal property in lands, the ward may
ordinarily elect to hold the lands or to relinquish them
to the guardian and demand the consideration or its value,
unless the lands were brought under order of court having
statutory authority to make it. The guardian may
usually make necessary repairs upon the ward’s property
without an order of court,‘ but without it he cannot law-
fully go further and make what may strictly be regarded
as improvements or betterments.*® Still, where improve-
ments, though not thus sanctioned, were wise and bene-
ficial to the ward, they have sometimes been allowed for
against his estate,® or the guardian has been permitted to
charge them against the resulting increased income.’

752. Duty as to Personal Estate—-Investments.
Beside the duty of the guardian to collect and preserve

1 Ronald v. Backley, 1 Brock. (U. S.) 356; Merkel’s Est., 154 Pa. 285.
Compare Windleton v. O’Brien, 68 Mo. App. 675.

2 See post, sec. 757; Sample v. Lane, 45 Miss. 556; Tyson v. Latrobe,
42 Md. 325; Northwestern Guaranty Loan Co. ». Smith, 15 Mont.
101, 48 Am. St. R. 662.

3 Boisseau v. Boisseau, 79 Va. 73, 52 Am. R. 616; Rowley v. Towsley,
53 Mich. 329; Collins ». Dixon, 72 Ga. 475. The inheritable quality of
the original property will be deemed to follow it in equity into the
investment. David’s Appeal, 60 Pa. 118; Matter of Bolton, 20 Misc.
(N. Y.) 532.

‘ Frankenfield’s Appeal, 102 Pa. 589; Cheney v. Roodhouse, 135 Ill.
257.

5 Guy v. Du Uprey, 16 Cal. 195, 76 Am. D. 518; Cheney ». Rood-
house, supra; Killpatrick’s Appeal, 113 Pa. 46.

® See Halbrook v. Brooks, 33 Conn. 347; May v. Skinner, 149 Mass.
375; Cheney v. Roodhouse, 135 Ill. 257.

7 Hobbs ». Harlan, 10 Lea (Tenn.), 268, 43 Am. R. 309.
654 THE WARD’S ESTATE

the personal estate of the ward, a matter already dis-
cussed,! it is his duty to see that all funds, both principal
and income, whether from real or personal property, be-
yond what are currently needed for the maintenance and
education of the ward and the preservation of his estate,
are properly invested so as to produce the greatest amount
of income consistent with their safety.

In determining the character of the investment and the
adequacy of the securities, all that can be required of a
guardian or other trustee to invest is, ‘‘that he shall con-
duct himself faithfully and exercise a sound discretion.
He is to observe how men of prudence, discretion and
intelligence manage their own affairs, not in regard to
speculation, but in regard to the permanent disposition
of their funds, considering the probable income as well as
the probable safety of the capital to be invested. This is
the general American rule on this subject, so far as there
can be said to be one.” 2? A guardian or other trustee who
does this, as we have seen, is not liable for honest errors in
judgment.°

He is allowed a reasonable time, usually six months,
within which to invest surplus funds, and if he neglects
to do so after its expiration he is prima facie chargeable
with simple interest upon them at the legal rate,‘ or, if
his neglect is willful or fraudulent, quite generally with
compound interest,® or with compound interest or profits

1See ante, sec. 747.

* Harvard College v. Amory, 9 Pick. (Mass.) 446, 461; Hunt, Appel-
lant, 141 Mass. 515; Lamar ». Micou, 112 U. 8. 452, and cases cited;
Nyces’s Estate, 5 W. & 8S. (Pa.) 254, 40 Am. D. 513, 518, and note;
Slauter v. Favorite, 107 Ind. 291, 57 Am. R. 106, and note.

* Nagle v. Robins, 9 Wyo. 211, 87 Am. St. R. 948; Hun ». Cary, 82
N. Y. 65, 37 Am. R. 546; Clement v. Clement, 19 N. H. 460; Norwood
v. Harness, 98 Ind. 134, 49 Am. R. 739, and cases cited in note above.
See ante, sec. 446. _

‘ Lent v. Howard, 89 N. Y. 169; Barney v. Saunders, 16 How. (U. 8.)
535, 542; Boynton v. Dyer, 18 Pick. (Mass.) 1; Matter of Thurston,
57 Wis. 104.

* Barney v. Saunders, supra; White ». Sherman, 168 Ill. 589, 61
THE WARD’S ESTATE 655

if he has speculated with the ward’s funds instead of in-
vesting them.!

753. Character of Investment.

The character of the investment that the courts will
sanction or approve has been the subject of some fluctua-
tions and conflicts of decision, and in some states the in-
vestment of trust funds, including those held by guard-
ians, is regulated by statute. While these statutes do not
necessarily prohibit other investments, unless that in-
tent seems manifest,” a different investment will be closely
scrutinized.* Where the instrument by which a testa-
mentary guardian is appointed expressly directs a partic-
ular investment, however, he will be protected, though it
is not of the kind authorized by statute, provided he
keep within the terms of the instrument; and he is ordi-
narily bound to follow them if he can, unless conditions
have changed so as to make such investment unsafe or
improper.‘ Securities of the federal government and of
the state appointing the guardian are universally approved
by the statutes and decisions, as both such governments
are considered perpetual and their obligations sure.> First
mortgages upon real estate are also universally approved,
provided the property is situated within the jurisdiction
of the court,® where due care is taken to see that there is a
proper margin for depreciation, or unless the value of the

Am. St. R. 132; Appeal of Hughes’ Minors, 53 Pa. 500; Matter of
Thurston, supra.

1See post, sec. 754.

2 Clark v. Beers, 61 Conn. 87; Brown v. Wright, 39 Ga. 96.

3 Clark ». Beers, supra; Nyces’s Estate, 5 W. & 8. (Pa.) 254, 40 Am.
D. 498.

42 Pom. Eq. Jur., sec. 1062; In re Allis’s Est., 123 Wis. 223; Nyces’s
Est., supra.

5 Perry on Trusts, secs. 452, 458.

¢Smith ». Smith, 7 J. J. Marsh. (Ky.) 238; Tuttle v. Gilmore, 36
N. J. Eq. 617; Nyces’s Est., 5 W. & 8. (Pa.) 254, 40 Am. D. 498, and
note. In England and at least three of our states the decisions seem
to regard the public funds and real estate securities as the only proper
656 THE WARD’S ESTATE

land is merely speculative.! Investment in a Junior mort-
gage, however, is usually deemed improper.’

In many states the guardian may invest in the stocks
and bonds of such private corporations as, by reason of
the character of their business and the amount of their
capital, are generally regarded by careful and intelligent
men as safe permanent investments,? though there is
some authority the other way, even in states where the
guardian is not restricted to real estate securities and the
public funds,‘ and in some states such investments are
expressly prohibited. Usually loans on mere personal
security are deemed improper, and consequently at the
risk of the guardian.’ They are sanctioned in some states,
however, under special circumstances, though it is com-
monly held the duty of the trustee to take a solvent
surety in addition to the obligation of the borrower.‘

754. Employing in Business or Speculation.
Employment of trust funds in business or speculation is
universally condemned, and the guardian or other trustee

investments for trust funds. In re Law’s Est., 144 Pa. 499, 14 L.
R. A. 108, and note; Vreeland v. Vreeland, 16 N. J. Eq. 512, 531:
Gray v. Fox, 1 N. J. Eq. 259, 22 Am. D. 508. See also Nance v. Nance,
18. Car. 209. That this is the Wisconsin rule except as modified by
statute, see In re Allis’s Est., 123 Wis. 223. As to investments in real
estate in foreign states, see Ormston v. Olcott, 84 N. Y. 339, 343.

‘Nagle v. Robins, 9 Wyo. 211, 246, 87 Am. St. R. 948; Gilbert ».
Kolb,.85 Md. 627. Two-thirds of the value of the property is the
maximum usually adopted. Foscue v. Lyon, 55 Ala. 440.

2 Woerner on Guard., sec. 63; Monroe v. Osborne, 43 N. J. Eq. 248.

3 Hunt, Appellant, 141 Mass. 515, and cases cited; Nagle v. Robins,
supra; Fidelity Trust Co. ». Glover, 90 Ky. 355; Haddock ». Bank, 66
Ga. 496.

4 See French v. Currier, 47 N. H. 88; Smith v. Smith, 7 J. J. Marsh.
(Ky.) 238; White v. Sherman, 168 IIl. 589, 61 Am. St. R. 132.

5 Judge of Probate v. Mathes, 60 N. H. 433; Clark ». Garfield, 8
Allen (Mass.), 427; Simmons ». Oliver, 74 Wis. 633.

* Lovell ». Minot, 20 Pick. (Mass.) 116, 32 Am. D. 206; Covington
v. Leak, 65 N. Car. 594; State ». Gooch, 97 N. Car. 186, 2 Am. St. R.
284, :
THE WARD’S ESTATE 657

will be personally responsible for all loss that results,
though he may have acted in entire good faith.! If he
employs the trust funds in his own business he will be
liable, as a rule, either for interest or for the profits aris-
ing from such employment, as distinguished from those
that accrued to the business from his own efforts or
capital or from other causes.’

765. Commingling Trust Funds—Deposits in Bank.

Guardians, like other trustees, should keep the trust
funds separate from their own. If they disregard their
duty they are liable in case of loss for the entire amount
of the trust fund with interest, without regard to the
nature of the investment or the cause of loss.? And
though the guardian may deposit such of the ward’s
funds in bank as are awaiting investment, or as may be
needed for current expenses, using due care to select a
safe and solvent institution, he should so deposit them
that their trust character appears. If he deposits them
in his own name, without designating that they are held
in a trust capacity, he will be absolutely responsible for
their loss. This rule is applicable to all trustees.‘

756. Changing Personal Estate into Realty.
While the guardian can invest the ward’s personal
estate in mortgages upon land,® he has no right to use

1 White v. Sherman, 168 Ill. 589, 61 Am. St. R. 132; Clark v. Gar-
field, supra; State ». Greenslade, 106 Ind. 364, 55 Am. R. 753; Kimball
v. Reding, 31 N. H. 352, 64 Am. D. 333. As to funds already invested
in business, see Powell ». North, 3 Ind. 392, 56 Am. D. 513; Thompson
v. Brown, 4 Johns. Ch. (N. Y.) 619.

2 Small’s Appeal, 144 Pa. 293; Seguin’s Appeal, 103 Pa. 189; Kyle
v. Barnett, 17 Ala. 306; Bond v. Lockwood, 33 Ill. 212.

* McCloskey v. Gleason, 56 Vt. 264, 48 Am. R. 770; White ». Sher-
man, 168 IIl. 589, 61 Am. St. R. 132, 145.

‘Williams v. Williams, 55 Wis. 300, 42 Am. R. 708; Mulholland’s
Est., 175 Pa. 411; Otto ». Van Riper, 164 N. Y. 536, 79 Am. St. R.
673. As to what is sufficient designation of a deposit as a trust fund,
see O’Connor v. Decker, 95 Wis. 202. Compare Parsley ». Martin,
77 Va. 376, 46 Am. R. 733.

5 See ante, sec. 753.

42
658 THE WARD’S ESTATE

them in the purchase of real estate without the sanction
of the proper court, and if he does so he will be absolutely
answerable. In fact the ward may claim the land itself,
or the funds invested therein, at his option, treating the
land as security for the funds, unless it has been conveyed
to a purchaser for value without knowledge of the trust.?

1§kelton v. Ordinary, 32 Ga. 266; Boisseau v. Boisseau, 79 Va. 73,
52 Am. R. 616.

2 Armitage ». Snowden, 41 Md. 119; Gordon v. English, 3 Lea
(Tenn.), 634.
CHAPTER LXII

POWER OF GUARDIAN TO CONVEY OR ENCUMBER WARD’S
LANDS OR CHATTELS OR TO BIND HIM BY CONTRACT

767. Conveyance of a Ward’s Real Property by Guard-
ian.

The natural guardian of a minor has no power to con-
vey or encumber the ward’s lands, and the courts can-
not authorize him, merely as such guardian, to do so.!
Neither has the guardian of the infant’s estate any power
to convey or encumber real property without special
judicial authority, and the same rule applies where the
ward is insane, a spendthrift, or otherwise incompetent.’

It is held in many states that a court of chancery, by
virtue of its inherent powers over the persons and estates
of minors, may, without the aid of statute, order the sale
or encumbrance of an infant’s realty where it is shown
that his best interests would thereby be subserved.* But
this is denied in England and probably by the majority
of the courts in this country.‘ In view of this state of the

1 See ante, sec. 469; Degenhart v. Carsraft, 36 Ohio St. 549; Shunks
v. Seamonds, 24 Ia. 131,92 Am. D. 465; Myers ». McGavock, 39 Neb.
843, 42 Am. St. R. 627.

2 Note to Schmidt ». Shaver in 89 Am. St. R. 250, and cases cited
therein at p. 312. But see Chandler v. Simmons, 97 Mass. 508, 93 Am.
D. 117.

?Thorington v. Thorington, 82 Ala. 489; Taylor v. Peabody, etc.,
Co., 65 Md. 388; Hale ». Hale, 146 Ill. 227, 20 L. R. A. 247; Hurt v.
Long, 90 Tenn. 445; Long v. Long, 62 Md. 33.

43 Pom. Eq., sec. 1309; Taylor v. Philips, 2 Ves. 23; Richards ».
East Tenn., etc., Ry. Co., 106 Ga. 614, 45 L. R. A. 712; Losey ». Stan-
ley, 147 N. Y. 560; Faulkner v. Davis, 18 Gratt. (Va.) 651, 98 Am. D.
698; N. W. Guaranty Co. v. Smith, 15 Mont. 101, 48 Am. St. R. 662;
State ». Hamilton County Commrs., 39 Ohio St. 58.

659
660 THE WARD’S ESTATE

law, statutes quite generally confer upon the probate or
orphans’ courts, or upon courts of equity, or of general
jurisdiction, power to authorize and supervise the sale or
encumbrance of the lands of infants and others under
guardianship, under certain circumstances, as where the
proceeds of a sale or mortgage are necessary to the sup-
port and education of the ward, or to preserve his estate
or render it productive, or to pay debts. A sale for a
purpose not authorized by statute, however, is void.1

While these statutes differ in their details, it is a general
rule and leading principle respecting them that, being in
derogation of the common law, they are to be strictly
construed, and their every detail having the semblance of
benefit to the owner must be strictly, or at least substan-
tially, pursued,? and the burden is upon the party claim-
ing title under such proceedings to show that all material
requirements of the statute have been met.*®

758. The Usual Steps.

Application must be made to the court specified in the
statute by the party authorized by its terms to make it.*
Notice to the ward or to some other designated person
in his behalf is sometimes required, and its absence is in
some states regarded as jurisdictional.» The petition or
application must usually state the purpose for which a
sale or encumbrance is desired to be made, which must
be a purpose specified by the statute, and a sale made for
an unauthorized purpose or for one not stated in the peti-
tion is void.®

1 Beal v. Harmon, 38 Mo. 435; Mohon v. Tatum, 69 Ala. 466

2 Ellwood ». Northrup, 106 N. Y. 172; McMannis ». Rice, 48 Ia.
361; Carder v. Culbertson, 100 Mo. 269, 18 Am. St. R. 548; Mulford ».
Saltsenback, 46 Ill. 303; Beezley v. Phillips, 117 Fed. 105, 54 C.C. A. 9.

3 Ellwood »v. Northrup, supra.

* State v. McLaughlin, 77 Ind. 335; Grier’s Appeal, 101 Pa. 412.

5 Kennedy v. Gaines, 51 Miss. 625; Rankin ». Miller, 43 Ia. 11.
Compare Myers v. McGavock, 39 Neb. 843, 42 Am. St. R. 627; Thaw
v. Ritchie, 136 U. 8. 519; Mohr 2. Porter, 51 Wis. 487.

§ Lyman v, Conkey, 1 Met. (Mass.) 317; Beal ». Harmon, 38 Mo. 435.
THE WARD’S ESTATE 661

759. Hearing—Bond of Guardian—Confirmation of
Sale.

If upon a hearing the necessity or advisability of a sale
appears, the court orders a contract of sale by the guard-
ian and orders him to give a special or sale bond, and the
failure of the latter to do so, even though he has already
given bond as general guardian, avoids the sale,! or ren-
ders it erroneous and liable to be set aside.? As a rule the
sale must be reported to and confirmed by the court or it
is without effect. Mere irregularity in the proceeding
has sometimes been held cured by confirmation,‘ but it is
otherwise if the defect were substantial or jurisdictional,‘
unless the ward ratified the sale after his disability ceased.

760. Power to Sell Personalty.

Unless the statute forbids, the guardian may sell or
encumber the personal property of his ward without an
order of court,® but the safer practice is to procure such
order whether the statute requires it or not.

761. To Compromise, Release or Arbitrate Ward’s
Claims.

Where the ward has claims that are fairly doubtful as
to their validity or extent, the guardian has power to
make a reasonable compromise thereof,’ though the ap-

1 Weld v. Johnson Mfg. Co., 84 Wis. 537; Vanderburg v. Williamson,
52 Miss. 233; Barnett v. Bull, 81 Ky. 127; Stewart ». Bailey, 28 Mich.
251.

2 Arrowsmith v. Gleason, 129 U. 8. 86.

: Donne v. Maun, 76 Ia. 723; Hicks ». Blakeman, 74 Miss. 459;
Boone ». Tyrrell, 113 Mo. 175.

4 Carder v. Culbertson, 100 Mo. 269, 18 Am. St. R. 548; Eliason 2.
Bronnenberg, 147 Ind. 248; Hamiel ». Donnelly, 75 Ia.. 98.

5 Jenness v. Smith, 58 Mich. 280; Carder v. Culbertson, supra; Fra-
zier v. Jenkins, 64 Kan. 615, 57 L. R. A. 575.

° Lamar v. Micou, 112 U. 8. 452; Maclay v. Equitable Life Ins. Soc.,
152 U. §. 499, 503; Humphrey v. Breisson, 19. Minn. 221.

7 Maclay. v. Equitable Life Ins. Soc., supra; Manion v. Ohio Valley
Ry. Co., 99 Ky. 504; Hagy v. Avery, 69 Ia. 434; Schee ». McQuilken,
59 Ind. 269.
662 GUARDIAN’S CONTRACTS

proval of the court is sometimes required by statute.’ He
may even submit disputed claims involving the ward’s
estate to arbitration so that the ward will be bound by
the determination, unless the guardian’s own interests in
the matter are antagonistic.’

The guardian has no power to release or waive the
ward’s claims or interests without consideration,*® nor to
bind him by an estoppel in pais.‘

762. To Bind Ward by Contract.

By the prevailing rule the guardian cannot bind the
ward personally by contract. If he attempts to do so
the liability is his own, though he may, if such contract
were proper and beneficial to the ward, have reimburse-
ment or indemnity out of his estate.’ This rule finds its
reasons in the fact that the guardian is charged with the
control and management of the ward’s person and estate
and is presumed to know both the needs of the ward and
the condition of his resources; that creditors dealing with
the guardian ought not to be compelled to investigate in
advance the sufficiency of the ward’s assets or the neces-
sity of the expenditure; and that a different rule would
subject the ward to the risk of numerous suits by different
persons, of the validity of whose claims he might be un-
able to judge. Even though the guardian contracts ex-

1See Hayes 7. Mass. Mut. L. Ins. Co., 125 Ill. 626, 1 L. R. A. 303,
and statutes in several states.

2 Hayes v. Mass. Mut. L. Ins. Co., supra; Hutchins v. Johnson, 12
Conn. 376, 30 Am. D. 622, and note. Contra, Millsaps ». Estes, 137
N. Car. 535, 107 Am. St. R. 496, 70 L. R. A. 170; Baker v. Lovett, 6
Mass. 78, 4 Am. D. 88; Williams’s Devisees, 6 Munf. (Va.) 453.

3 Pond ». Hopkins, 154 Mass. 38; Swarthout v. Curtis, 5 N. Y. 302,
55 Am. D. 345; Ditmar ». West, 7 Ind. App. 637.

4 Whitehead v. Jones, 56 Ala. 152; Cumings v. Bird, 33 Ohio L. J.
332; Shamleffer v. Council Grove Mill Co., 18 Kan. 32.

® Hooper v. Rideout, 2 Vern. 480; Massachusetts General Hospital
v. Fairbanks, 182 Mass, 414; Hardy ». Citizens’ Nat. Nank, 61 N. H.
34; Fessenden ». Jones, 52 N. Car. 14, 75 Am. D. 445; Copely v. O’ Neill,
57 Barb. (N. Y.) 299; Reading v. Wilson, 38 N. J. Eq. 446.

* Fessenden v. Jones, supra; Phelps v. Worcester, 11 N. H. 51, 53;
GUARDIAN’S CONTRACTS 663

pressly as guardian, or expressly on behalf of the ward,
the guardian, and not the ward or his estate, is directly
bound.! But in a few states the ward or his estate, and
not the guardian, is bound by contracts of the guardian
necessary or proper to the support and education of the
ward or the preservation and management of his estate.?
In any case, if the contract in question is entered into
upon the sole credit of the ward’s estate, or the guardian’s
liability was expressly limited thereto, the guardian is not
personally liable, at least beyond the assets in his hands.*

Brown »v. Eggleston, 53 Conn. 110; Andrus ». Blazzard, 23 Utah, 233,
54 L. R. A. 356; Mass. Gen. Hospital ». Fairbanks, supra.

1 Hardy ». Citizens’ Nat. Bank, supra; Nichols v. Sargent, 125 IIL.
309, 8 Am. St. R. 378; Andrus ». Blazzard, supra, and authorities cited.

* Robinson »v. Hersey, 60 Me. 225; Price’s Appeal, 116 Pa. 410;
Owens ». Mitchell, 38 Tex. 588; McCoy ». Lane, 66 Neb. 847.

3 Nichols v. Sargent, 125 N. Y. 309, 8 Am. St. R. 378; Salem Female
Academy »v. Phillips, 68 N. Car. 491; Strubbe v. Kings Co. Trust Co.,
169 N. Y. 603.
CHAPTER LXIII

MISCELLANEOUS—DEALINGS BETWEEN GUARDIAN AND
WARD——-REMEDIES, ACCOUNTS—GUARDIAN’S BONDS
AND LIABILITY OF SURETIES THEREON

763. Contracts, Gifts and Conveyances Between
Guardian and Ward.

As a rule, contracts, gifts and conveyances by the ward
to his guardian while the guardianship continues are at
least voidable, both on account of the general incapacity
of the ward to contract, and the fiduciary relation exist-
ing between the parties; 1 and this principle has been ap-
plied even where the guardian became the purchaser of
lands sold pursuant to a statutory proceeding, the sale
being held voidable at the option of the ward upon reach-
ing majority.? After the guardianship is terminated, even
by removal of the disability of the ward, but before the
guardian has settled his accounts, the trust relation still
subsists, and all conveyances or contracts between them
are at least prima facie voidable upon the ground of fraud
or undue influence.’ Even though the ward has attained
full capacity, and the guardian has accounted to him and
paid over the balance due, transactions occurring soon
afterward will be closely scrutinized, and if they are bene-
ficial to the guardian or disadvantageous to the ward,
the burden is on the former to show the utmost fairness
and good faith.4

11 Bigelow on Fr. 336-340; Howard v. Tucker, 65 Ga. 323.

2 Heyl v. Goelz, 97 Wis. 327; Winter v. Truax, 87 Mich. 324, 24 Am.
St. R. 160; Small ». Small, 74 N. Car. 16; In re Pierce, 68 Vt. 639;
Brockett v. Richardson, 61 Miss. 166. Compare Elrod ». Lancaster,
2 Head (Tenn.), 571, 75 Am. D. 749.

8 McParland v. Larkin, 155 Ill. 84.

4 See post, secs. 763, 768; Hatch ». Hatch, 9 Ves. Jr. 262; Goodrich

664.
 

REMEDIES BETWEEN GUARDIAN AND WARD 665

REMEDIES BETWEEN GUARDIAN AND WARD

764. In General.

While actions for personal torts committed during the
guardianship will not ordinarily lie between a ward and
his natural guardian,’ there seems to be no good reason
why such actions might not be maintained between the
ward and his judicial or testamentary guardian.”

Whether the guardian may sue the ward ex contractu
for necessaries furnished the latter during the guardian-
ship seems uncertain. Doubtless a mere guardian of the
person could do so, unless, as in the case of a parent, he
is legally bound to furnish them irrespective of the ward’s
means,* though a guardian of the estate could not, his
proper remedy being to charge such items in account
against the ward for allowance by the proper court.‘

Furthermore, under the present practice, the remedy
of the ward against the guardian as to all matters touch-
ing the trust estate, is usually through a proceeding in the
proper court for an accounting, and a suit against the
guardian and his sureties upon the guardianship bond.
In fact it is generally held, as to probate guardians at
least, that no action will lie against the guardian or his
sureties for any balance in his hands until an accounting
has been had in the probate court, or the guardian has
refused to account therein when duly cited to do so.° In

»v. Harrison, 130 Mo. 263; Wainright v. Smith, 106 Ind. 239. As to the
presumptions where the guardian settles his accounts with the ward
out of court, see post, sec. 768; Gillett v. Wiley, 126 Ill. 310, 9 Am. St.
R. 587; Kittridge ». Batton, 14 N. H. 401.

1See ante, secs. 484, 490, 507.

2See ante, sec. 519, and cases cited to the proposition that the
guardian is liable civilly for seduction of the ward. Compare Mason
v. Mason, 19 Pick. (Mass.) 506; McLane v. Curran, 133 Mass. 531,
43 Am. R. 5365.

2 See ante, sec. 745, for the rule where the ward is a member of the
guardian’s household.

‘ Rollins ». Marsh, 128 Mass. 116; Smith’s Appeal, 30 Pa. 397.

’ Robinson v. Robinson, 1 Root (Conn.), 51; Kugler ». Prien, 62
Wis. 248; Perkins v. Stimmel, 114 N. Y. 359, 11 Am. St. R. 659; O’Brien
666 GUARDIAN ACCOUNTS

a number of states, however, it is held that no accounting
is necessary before an action at law will lie upon a guard-
ianship bond, and that both the breach of its conditions
and the resultant damages may be determined in such
action.?

DUTY OF GUARDIAN TO ACCOUNT

765. In General.

Two kinds of guardians’ accounts require consideration:

1. The accounts which they are required to render an-
nually or at other stated periods during the guardianship,
or when required by the court having jurisdiction.

2. Final accounts, or those required to be made by the
guardian to his successor, if he is superseded, or to the
ward or to his personal representatives upon the termina-
tion of the guardianship.?

766. Principles of Accounting.

To mention everything that may be brought into a
guardian’s account by way of debit and credit would be
to rediscuss much that has already been stated. Generally
the guardian will be charged, not only with what he did
receive on account of the trust, but with what, in the
exercise of due diligence, he should have received.? On
the other hand, he is entitled to credit for all sums rea-
sonably and properly expended for the support and edu-
cation of the ward,‘ and for sums properly expended in
the collection, preservation and protection of his estate,
but not for sums lost through his want of good faith or
lack of ordinary care and prudence.*

v. Strang, 42 Ia. 643; Newton ». Hammond, 38 Ohio St. 430; Long ».
Long, 142 N. Y. 545.

‘McIntyre v. People, 103 Ill. 142; State ». Slevin, 93 Mo. 253,
3 Am. St. R. 526.

? See ante, sec. 762.

3 See ante, sec. 747.

4 See ante, sec. 745.

5 See ante, sec. 746.
GUARDIAN ACCOUNTS 667

767. Conclusiveness of the Accounts.

Annual or periodic accounts are chiefly and primarily
for the information of the court as a guide to its future
action, and are not usually conclusive either upon the
guardian or ward. When rendered to and passed upon
by the proper court, however, they are usually deemed
prima facie evidence of the state of the trust, in the ab-
sence of statute to the contrary.!

A final account, on the other hand, when duly made
and passed upon by the proper court is usually regarded
as in the nature of a final judgment, and is conclusive
against the guardian and his sureties and the ward as
well. It is not open to collateral attack, and can be di-
rectly impeached only for fraud or mistake, or upon
some other ground that would invalidate a final judg-
ment.’

768. Accounting to Ward out of Court.

A guardian, in the absence of statute, has a right to
account to and settle with his ward out of court as soon as
the guardianship is terminated and the ward has attained
full capacity. Even where such accounting and settle-
ment is permissible, however, it is usually an unwise and
hazardous proceeding so far as the guardian is concerned,
for like other dealings with the ward soon after the latter’s
majority, such settlement is open to suspicion of fraud
and undue influence, and the burden of proving good
faith and full and fair disclosure to the ward is upon the
guardian, unless the technical relation of guardian and

1 Turner v. Turner, 104 N. Car. 566; Douglass’s Appeal, 82 Pa. 169;
Davis v. Combs, 38 N. J. Eq. 473; In re Heath’s Est., 58 Ia. 36; Prindle
». Holeomb, 45 Conn. 111. Compare Coffin ». Bramlitt, 42 Miss.
194, 97 Am. D. 449.

2 Schoul. Dom. Rel. (5th Ed.), sec. 372; Cummings v. Cummings,
128 Mass. 532; State ». Peckham, 136 Ind. 198; McCleary ». Menka,
109 Ill. 294; State v. Leslie, 83 Mo. 60; Shepard v. Pebbles, 38 Wis. 373.
Compare Potter ». Hiscox, 30 Conn. 508; State v. Baker, 8 Md. 44;
Henley v. Robb, 86 Tenn. 474.
668 GUARDIAN’S BONDS

ward has been so long ended that the parties may be
fairly deemed to meet on a footing of equality.'

If the guardian hands over to the ward the assets of the
estate during minority and the latter wastes them, and a
fortiori if the guardian aids the ward in wasting them, even
though the ward consents, both the guardian and his sure-
ties remain liable.”

769. Guardian’s Bonds—Necessity for.

No bond is required of a natural guardian, for he has,
and can lawfully exercise, only parental authority and
rights.? Neither are bonds required of testamentary
guardians, in the absence of statute, at least where the in-
strument of appointment expressly dispenses with them,
though under the law of most states the court has discre-
tion to require bonds of a testamentary guardian in any
case.

Courts of equity have undoubted power to require
bonds of chancery guardians, and their duty in this re-
spect is sometimes prescribed by statute. Probate guard-
ians, however, are quite generally, if not always, required
by statute to give bonds for the faithful discharge of their
trusts, and the giving of such bond is usually regarded as
a prerequisite to the validity of their appointment.‘

!1 Story’s Eq. Jur., sec. 317; 2 Pomeroy’s Eq. Jur., secs. 961, 9623
Wade v. Loebdell, 4 Cush. (Mass.) 510; Say v. Barnes, 4 Sarg. & R.
(Pa.) 112, 8 Am. D. 679; Carter v. Tice, 120 Ill. 277. That the burden
to prove fraud in such cases is upon the ward when the action is
against the guardian’s sureties, see People »v. Seelye, 146 Ill. 189.
Long acquiescence by the ward in a settlement out of court -will
usually be treated as a confirmation thereof to the extent, at least,
of casting upon him the burden of proving that such settlement was
affected by fraud, undue influence or mistake. Aaron ». Mendel, 78
Ky. 427, 39 Am. R. 248; Alexander’s Est., 156 Pa. 368; Ela v. Ela,
84 Me. 423. See also Carter v. Tice, supra; Waller ». Armistead, 2
Leigh (Va.), 11, 21 Am. D. 594.

2 Heistand v. Kuns, 8 Blackf. (Ind.) 345, 46 Am. D. 481; Probate
Judge v. Cook, 57 N. H. 450.

‘See ante, sec. 469; Westbrook v. Comstock, Walk. (Mich.) 314.

4 See ante, sec. 731.
GUARDIAN’S BONDS 669.

770. Form and Requisites of the Bond.

The form of the bond, particularly in the case of pro-
bate guardians, is usually prescribed by statute. It com-
monly runs to the probate judge, and for that reason is
often termed a probate bond.! Usually it is in double the

.amount of the personal estate, with sureties to be ap-
proved by the court, conditioned, as a rule, as follows:
* 1. To make a true inventory of the estate of the ward
and return the same into the court.

2. To collect, preserve, dispose of and manage such es-
tate according to law for the best interests of the ward,
and also to discharge such duties as to the care, custody,
maintenance and education of the ward as the character
of the ward and the nature and scope of the guardianship
require.

3. To render accounts of his stewardship, at the times
(usually once a year) and in the manner prescribed by law.

4. To finally account to and settle his trust with the
court, or with the ward if he be of age and competent,
and to pay or deliver over to the ward or other person en-
titled, all money and property of the ward in his hands.

771. Same—lIrregularity in Bond or in Appointment.

Though the bond be in some respects irregular and in-
sufficient as a statutory or probate bond, it may still be
valid as a common law obligation and may be enforced as
such to the extent of its terms, both against the guardian
and his sureties.”

After giving bond as guardian and acting as such in
receiving the property of the ward, both the guardian and
his sureties are estopped from pleading the illegality of
the appointment, even though it involves the jurisdiction
of the appointing court.’

1Thomas v. White, 12 Mass. 367. In some jurisdictions the bond
runs to the state.

2 State v. Britton, 115 Ind. 55; Pratt v. Wright, 13 Gratt. (Va.) 175,
67 Am. D. 767. See also McFadden ». Hewitt, 78 Me. 24.

3 Hazelton v. Douglas, 97 Wis. 214, 65 Am. St. R. 122; Cotton’s
670 GUARDIAN’S BONDS

772. What Covered by Bond.

As a rule the bond of a general guardian covers all de-
faults or breaches of duty committed by him in that
capacity. But if the general guardian is also appointed
special guardian for the sale of the real estate, as already
explained,! he and his sureties as general guardian are not
liable on the bond for his defaults as special guardian or
for the proceeds of the sale coming to his hands as such.?
Funds received by a guardian after his trust is terminated
are not covered by his bond,’ nor is money or property
received otherwise than as guardian or after his final
discharge.*

The bond covers property of the ward in the guardian’s
hands when the bond was given, though it was received
before its execution. But whether the sureties are liable,
where the bond is not retrospective in its terms, for money
or property previously received and wasted, converted or
misapplied, is not uniformly decided.’ But ordinary debts
owing by the guardian to the ward at the time the guard-
ianship commences are deemed assets in his hands, both
as against him, and also as against his sureties, provided

Admr. ». Wolf, 14 Bush (Ky.), 238; McClure v. Com., 80 Pa. 167.
Compare State ». McLaughlin, 77 Ind. 335.

1See ante, secs. 757 et seq.

2Com. ». Pray, 125 Pa. 542; Williams v. Morton, 38 Me. 47, 61
Am. D. 229; Judge of Probate v. Toothaker, 83 Me. 195; Smith ».
Gummers, 39 N. J. Eq. 27; Kester v. Hill, 42 W. Va. 611; Madison Co.
v. Johnson, 51 Ia. 152. The rule seems otherwise in a few states as to
proceeds of the sale actually received. State v. Hull, 53 Miss. 626;
Tuttle v. Northrop, 44 Ohio St. 178; Hart ». Striebling, 21 Fla.
136.

5 People v. Seelye, 146 Ill. 189; Garrett v. Reese, 99 Ga. 494; Arm-
strong v. Walkup, 12 Gratt. (Va.) 608.

4Shelton ». Smith, 12 Heisk. (Tenn.) 82; Merrells v. Phelps, 34
Conn. 109; Naugle v. State, 101 Ind. 284.

’ That the sureties are liable, see Douglass v. Kessler, 57 Ia. 63;
Fogarty v. Ream, 100 Ill. 366. Contra, State ». Shackelford, 56 Miss.
648; Howe v. White, 162 Ind. 74; Holden v. Curry, 85 Wis. 504; Parker
v. Medsker, 80 Ind. 155.
GUARDIAN’S BONDS 671

the guardian was solvent when the bond was given.! The
bond of a general guardian covers property or assets re-
ceived from a foreign state.2. Usually, by the terms of the
bond, the guardian and his sureties are liable thereon as
well for what he should have received but failed to obtain
through his fraud or negligence, as for what actually came
to his hands and was wasted or misapplied.* For prop-
erty received during the guardianship they remain bound
until their liability is barred by the statute of limitations.‘
For property received after the guardianship is termi-
nated the sureties are not usually liable.®

773. Additional and Substituted Bonds.

Where the guardian is required to give additional
bonds and does so, the sureties on the original bond are
still liable, both for past and future defaults.* The sure-
ties on the new and additional bond, however, are liable
jointly with the sureties on the old one for all future de-
faults,’ and these may consist in misapplying or wasting
funds or property on hand when the new bond was given,
as well as what was afterward received,’ but not, as a
rule, for defaults that antedate the bond.’ Yet it is held
under many statutes that a new and additional bond is
cumulative where the old bond and the original guardian-
ship are not discharged or interrupted when the new bond

1Sargent v. Wallis, 67 Tex. 483; Johnson v. Hicks, 97 Ky. 116;
O’Neall ». Herbert, Dudley Eq. (8. Car.) 30.

2 Collins ». Slaughter, 1 Ky. L. Rep. 261; State ». Hull, 53 Miss.
626; Pearson v. Daley, 7 Lea (Tenn.), 674.

3 Culp v. Stanford, 112 N. Car. 664; Brooks ». Tobin, 135 Mass.
69.

4In re Walling, 35 N. J. Eq. 105.

5 See post, sec. 786.

6 Hutcheraft v. Shrout, 1 T. B. Monr. (Ky.) 208, 15 Am. D. 100.

7 Loving v. Bacon, 3 Cush. (Mass.) 465.

8 Clark v. Wilkinson, 59 Wis. 543; Parker ». Medsker, 80 Ind. 155;
State ». Dennis, 58 Mo. App. 568.

9MeWilliams »v. Northfleet, 60 Miss. 987; Parker v. Medsker,
supra.
672 GUARDIAN’S BONDS

is given, and that the sureties on the new bond are liable
for defaults at any time during the entire guardian-
ship.?

Where a new bond is substituted for the old, the sure-
ties on the latter are liable for defaults already committed,
but not for subsequent defaults.2 But whether the guard-
ian and his sureties are liable on the new bond for prior
defaults is not uniformly determined. In most states,
however, they are liable for all defaults during the guard-
ianship, on the ground that the condition of the bond is
that the guardian shall finally and truly account for his
stewardship.’

774. Same—One Guardian for Several Wards or Sev-
eral Guardians for Same Ward.

Where a guardian for several wards gives one bond for
all, he and his sureties are liable as if a separate bond were
given to each, except that each ward can enforce only his
proportionate amount of the penalty, unless the other
wards are made parties to the suit and it appears that
they would not be prejudiced by greater than a propor-
tionate recovery.

Joint guardians, as we have seen, are not usually bound
for the defaults of their fellows,® and though they exe-
cute a bond together, they are not liable as sureties for
one another, but each is bound solely for his own de-

' Merrills v. Phelps, 34 Conn. 109; Douglass v. Kessler, 57 Ia. 63;
Bell ». Jasper; 37 N. Car. 597; Knox v. Kearns, 73 Ia. 286; Sayers v.
Cassell, 23 Gratt. (Va.) 525.

? Spencer v. Houghton, 68 Cal. 82, 86; Bell ». Rudolph, 70 Miss.
234; State ». Drury, 36 Mo. 281; Foye ». Bell, 18 N. Car. (1 Dev. & B.)
275.

* Loving v. Bacon, 3 Cush. (Mass.) 465; Jones v. Hayes, 38 N. Car.
502, 44 Am. D. 78; Merrills ». Phelps, 34 Conn. 109; Com. ». Cox, 36
Pa, 442; Knox ». Kearns, 73 Ia. 286. Contra, Parker ». Medsker,
80 Ind. 155; State v. Shackelford, 56 Miss. 648.

4 Winslow »v. People, 117 Ill. 152; Walsh ». State, 53 Md. 539; Bescher
v. State, 63 Ind. 302.

5 See ante, sec. 735.
GUARDIAN’S BONDS 673

faults.! The sureties on such a bond, however, are liable
for the defaults of any or all of the guardians.”

775. Adjudication Against Guardian Conclusive
Against Sureties.

By the weight of authority, approval of the final ac-
count of the guardian and an order against him for the
balance found due is conclusive against the sureties on
his bond, though they were not parties to the proceeding
and had no notice of the filing of the account. This is
usually upon the theory that they are privy to the pro-
ceedings against their principal by the very terms of their
undertaking.’ In a few states, however, the adjudication
upon a final account is only prima facie evidence of the
fact and extent of liability as against the guardian’s sure-
ties, unless they are notified of the proceedings or appear
therein.‘ An adjudication upon a proceeding for final
accounting is at least equally as conclusive in favor of the
guardian and his sureties as it is against them,° unless it
was tainted with fraud.®

776. Liability of Guardian on Contracts Made by

Ward.
Generally the guardian is not bound by contracts en-

1 Manz ». Oakley, 120 N. Y. 84; Kirby ». Turner, Hopk. Ch. (N. Y.)
309; Hurlbut v. State, 71 Ind. 154. Contra, Williams v. Harrison, 19
Ala. 277; Freeman v. Brewster, 93 Ga. 648.

2 Manz v. Oakley, supra; Hocker ». Woods, 33 Pa. 466; People v.
Byron, 3 Johns. Cas. (N. Y.) 53.

3 See ante, sec. 770; Douglass v. Ferris, 1388 N. Y. 192, 34 Am. St. R.
435; Shepard v. Pebbles, 38 Wis. 373; Knepper ». Glenn, 73 Ia. 730;
Kattleman ». Guthries’s Est., 142 Ill. 357; State v. Slauter, 80 Ind.
597; Jacobson v. Anderson, 72 Minn. 426; Rice v. Wilson, 129 Mich.
520; Chase v. Wright, 116 Ia. 555.

4 Parr v. State, 71 Md. 220; Moore v. Alexander, 96 N. Car. 34;
State ». Hull, 53 Miss. 626. See Shepard v. Pebbles, supra, and cases
cited at page 379 of the opinion.

*’ Mitchell ». Williams, 27 Mo. 399; In re Dean, 38 N. J. Eq. 201.

* Douglass v. Ferris, 1388 N. Y. 192, 34 Am. St, R, 435; Parr »,
State, 71 Md. 220; Carter v. Tice, 120 IIL. 277.

43
674 GUARDIAN’S BONDS

tered into by the ward without his special authority, ex-
press or implied, even though such contracts were for
necessaries which the guardian had refused to furnish.
The ward alone is liable unless he can plead his incapacity,
his remedy for the neglect of the guardian to furnish sup-
port being through a petition for his removal.!

1 Note to Schmidt v. Shaver, 89 Am. St. R. 286; Brown v. Eggleston,
53 Conn. 110; Baird v. Steadman, 39 Fla. 40.
CHAPTER LXIV

TERMINATION OF GUARDIANSHIP

777. In General.

The office and authority of the guardian may be ter-
minated in a variety of ways, as:

1. By death of guardian or ward.

2. By the arrival of the ward at full age, or the age of choice.

3. By marriage (in some states) of a feme sole guardian.

4. By the marriage (in some states) of the ward.

5. By resignation of the guardian.

6. By removal by the court for unfitness or misconduct.

778. Death.

As the guardian’s office is one of personal responsibility
and trust it does not continue in his personal representa-
tives, but is terminated ipso facto by his death. If the
ward dies, the guardian’s authority is at an end, and he
becomes bound to account to and settle with the personal
representatives of the ward.

779. Ward’s Arrival at Full Age or Age of Choice.

When the ward arrives at full age the guardianship is
terminated, even though the guardian and ward agree
that it shall still continue.?

The right of the ward to nominate his own guardian
upon reaching the age of fourteen and the effect of his
nomination upon a guardianship then existing have al-
ready been considered.”

780. Marriage of Guardian or Ward.
At common law the marriage of a female guardian either

1Matter of Kincaid, 120 Cal. 203; Curtis 1. Devoe, 121 Cal. 468;
Coon v. Cook, 6 Ind. 268.
2 See ante, sec. 728.

675
676 TERMINATION OF GUARDIANSHIP

terminated her authority, or transferred it to her husband,
or afforded ground for her removal.'! In most states, un-
der statutes, married women may be appointed guardians,
and where this is true the marriage of a female guardian
does not terminate the guardianship, nor will it under
ordinary circumstances be ground for superseding her.
The marriage of a female ward to an adult terminates
her guardianship at common law, upon the ground that
its continuance is inconsistent with the marital rights of
the husband, both as to her person and estate.? If the
husband is an infant, it seems that his guardian succeeds
the guardian of the wife.* Under modern statutes, how-
ever, the law is not so clear. Generally guardianship of
the wife’s person terminates by marriage, even where the
husband is a minor, for its continuance would be incon-
sistent with the conjugal rights and duties of husband
and wife,’ though it doubtless continues as to her estate
until she or her husband becomes of age,® and in some
states until she reaches majority. Marriage of a male
ward in this country usually terminates the guardianship
of his person, but not of his estate. This last question,
however, is very apt to be influenced by statutes.’

781. Resignation of Guardian.
While any person may decline to qualify and act as

1 See Schoul. Dom. Rel. (5th Ed.), sec. 318.

2 Burr v. Wilson, 18 Tex. 367; Bickerstaff v. Marlin, 60 Miss. 509,
45 Am. R. 418; Becker v. Fessler, 146 Ind. 16; Montoya de Antonio v.
Miller, 7 N. Mex. 289, 21 L. R. A. 699; Weise v. Norton, 48 Ala. 214;
Fowler v. McLaughlin, 131 N. Car. 209; Bartlett ». Cowles, 15 Gray
(Mass.), 445.

3 Schoul. Dom. Rel. (5th Ed.), sec. 313; Ware v. Ware, 28 Gratt.
(Va.) 670; Hisle ». Hisle, 15 Ky. L. 237.

‘Decker v. Fessler, 146 Ind. 16; Montoya de Antonio v. Miller, 7
N. Mex. 289, 21 L. R. A. 699.

5 Decker v. Fessler, supra; State v. Joest, 46 Ind. 233.

®Schoul. Dom. Rel. (5th Ed.), sec. 318; Ware v. Ware, 28 Gratt.
(Va.) 670. Compare ante, sec. 476, as to emancipation and earnings.

7See Rev. Stat. N. Y., 1896, p. 3621, sec. 54, and statutes referred
to ante, sec. 538.
TERMINATION OF GUARDIANSHIP 677

guardian, one who has duly accepted the trust cannot
relieve himself of its responsibilities by mere resignation,
but remains liable as guardian until the court, in the ex-
ercise of its discretion, has accepted his resignation and
he has properly accounted therein and received his dis-
charge.!

782. Removal of Guardian.

The power to remove a guardian for due cause is usually
vested in the court which appointed him. A court of
chancery, however, has power to remove a probate guard-
ian,” or even to remove or supersede a testamentary
guardian, unless the statute forbids.*

A probate court, however, has no power to remove a
chancery guardian, though doubtless in most states it may
remove a testamentary guardian for due cause.‘

783. Cause for Removal.

Due and ‘sufficient cause for the removal of a guardian
must be shown beyond the mere fact that the interests of
the ward would be better promoted by a change.*®

The common grounds for removing a guardian are as
follows:

1. Unfitnesss for the trust.

2. Misconduct in office.

3. Removal from the jurisdiction of the court.

784. Same—Unfitness—Removal from Jurisdiction.
This usually consists of extreme or habitual intemper-
ance,® immorality likely to injuriously influence the ward,’

1 Wackerlie v: People, 168 Ill. 250; Bartee ». Hopkins, 4 Sneed
(Tenn.), 623.

2 Cowls v. Cowls, 8 Ill. 435, 44 Am. D. 708; Stallings ». Bartlett, 26
S. Car. 474; Matter of Kennedy, 5 Paige (N. Y.), 244.

3 In re Klein, 95 Wis. 246, 251, and authorities cited.

‘In re King, 42 Hun (N. Y.), 607.

8 Ledwith v. Union Trust Co., 2 Dem. (N. Y.) 489.

6 Kettelas ». Gardner, 1 Paige (N. Y.), 488.

7 Ruohs v. Backer, 6 Heisk (Tenn.), 395, 19 Am. R. 598; Perkins v.
Finnegan, 105 Mass. 501.

 
678 TERMINATION OF GUARDIANSHIP

or ignorance so gross as to jeopardize the interests of the
ward,! incapacitating illness or insanity,’ or hostility of
interests to those of the ward.*

Insolvency, bankruptcy or extreme poverty of the
guardian may be ground for removal in the discretion of
the court,‘ and this is true of fraud in procuring the ap-
pointment.’ That the guardian has removed from the
state is sufficient ground for his removal in the discretion
of the court,® or it may be the duty of the court to re-
move him, or his authority may ipso facto cease under
statutes.’

785. Same—Misconduct in Office.

A guardian who is guilty of positive or intentional mis-
conduct in office or of plain neglect of duty will usually
be held to have demonstrated his unfitness and may be
removed. Examples under this head are wasting or mis-
managing the ward’s estate,’ applying it to. his own use
to the detriment of the ward,? and conduct tending to
alienate the affections of the ward from a worthy parent.?°
Interference with the ward’s fixed religious beliefs has also
been held ground for removal," and so of failure to obey

1 Nicholson’s App., 20 Pa. 50.

2 Modawell v. Holmes, 40 Ala. 391; Maggill ». McEvoy, 85 Md.
286.

3 Gray v. Parke, 155 Mass. 433.

4Chew’s Est., 4 Md. Ch. 60; King ». King, 73 Mo. App. 78; Senior
v. Ackerman, 2 Redf. Surr. (N. Y.) 302.

5 Mintzer’s Est., 163 Pa. 484.

6 Farrington v. Secor, 91 Ia. 606; Nettleton v. State, 13 Ind.
159.

7 See Bookster’s Succession, 18 La. Ann. 157.

® Dickerson »v. Dickerson, 31 N. J. Eq. 652; In re Mansfield, 206
Pa. 64.

°Snavely v. Harkrader, 29 Gratt. (Va.) 112; Ex parte Crutchfield,
3 Yerg. (Tenn.) 336.

10 Perkins v. Finnegan, 105 Mass. 501. Compare Matter of Rose, 66
Cal. 240.

4 Nicholson’s App., 20 Pa. 50; ante, sec. 486; In re McGrath, 2
Ch. 496.
TERMINATION OF GUARDIANSHIP 679

the lawful orders of the court as to the filing of inventories
or accounts,’ or the giving of adequate security.”

786. Effect of Termination of Guardianship.

While the termination of the guardianship for any
cause puts an end to the power and authority of the
guardian as such, so that he no longer has power to bind
the minor or his estate, or in general to receive, recover
or dispose of property as such, or to exercise any author-
ity over the person of the ward, the trust relation still
exists for certain purposes,’ chief among which is the
settlement of the guardianship accounts with the ward
or his proper representatives, or with the court, and his
sureties are liable for his defaults in this regard.47 Whether
the sureties are liable for money or property received
after the termination of the guardianship and before
final settlement is not uniformly decided. By the weight
of authority they are not,® though the contrary has been
held where money was paid to the guardian in ignorance
of the death of the ward or under other special cireum-
stances. ®

787. Reimbursement and Compensation of Guardian.
The guardian is, of course, entitled to be reimbursed
from the ward’s estate for all necessary and proper ex-
penses.” If the ward has no estate or it has been ex-
hausted, the ward may be personally responsible to his
guardian for strict necessaries furnished by the latter.®
The guardian is entitled to a reasonable compensation
for his services, but the amount, in the absence of statute,

1 Deegan v. Deegan, 22 Nev. 202; Sanderson v. Sanderson, 79 N.
Car. 369.

2 West v. Forsythe, 34 Ind. 418.

3 See ante, secs. 763, 768.

4 People v. Brooks, 22 Ill. App. 594.

5 Douglass o. Kessler, 57 Ia. 63; Merrills v. Phelps, 34 Conn. 109.

* Carr v. Askew, 94 N. Car. 194; Farrington v. Secor, 91 Ia. 606.

7 Bellamy v. Thornton, 103 Ala. 404.

8 Mills v. St. John, 2 Root (Conn.), 188.
680 TERMINATION OF GUARDIANSHIP

is largely within the discretion of the court in view of all
the circumstances of the case. Where the amount or
rate of compensation or commission is fixed by statute,
it will, as a rule, be strictly adhered to, though the guard-
ian will usually be allowed compensation for necessary
and extraordinary services not contemplated by the
statute.” Gross derelictions or misconduct, however, may
deprive him of all right to compensation.?

1 May v. May, 109 Mass. 252; Gott v. Culp, 45 Mich. 265.

? Huson v. Wallace, 1 Rich. Eq. (S. Car.) 1.

3 Pyatt v. Pyatt, 44 N. J. Eq. 491; Glassell v. Glassell, 147 Cal. 510;
Schieb v. Thompson, 23 Utah, 564.
INDEX

[References are to sections]

A
ABANDONED CHILD,
commitment to special institution.....................0. 627 et seq.
Domicile of v2 20scaccua scastecs sane vawwes bees ewan d pes 483
ABANDONMENT,
Of wife or children as criminal offense..................... 126, 490
Wife as witness against husband in prosecution for............ 159
Effect of husband’s, on wife’s capacities...................... 184
Effect of, on her right to sue........... 0.0... eee 296
By wife as affecting postnuptial settlement.................. 285n
By wife as affecting right to support.................-...04. 122
And adultery of wife as affecting dower.............-....-.5- 213
As affecting her right to custody of child..................... 479
Effect of father’s, on domicile of child.....................-- 483
Of child as emancipation. .............0.00 0000 cece eee 476
Of homestead )c.c2 ccrsaav anda vein? 1 eeanehe gine a ceee cae 258
(See Desertion; Divorce)
ABATEMENT,
Of action by marriage of female defendant................... 298
By marriage of female plaintiff......................20.0005 180n
Of action for divorce. ....... 0... cece cece eee eee nee tanee 438
ABDUCTION,
Parent’s action for, of child............... 000022 c eee een eeee 529
Action for, Of SPOUSE s.::4 5 ssa. ce Seek ee ee ERY eae e ee eee Bx eS 148

ABJURATION OF REALM,

Effect of husband’s, on wife’s capacities.................4. 184, 296
ABSENCE,

Of husband in legitimacy cases.............. 0.0.0 sees ee eee 458

As conferring agency on wife............... 60 cece eee eee 311
ABSOLUTE! DIVORGH oi. iwogecxstars ys aieed salueeie tes ceed 326

(See Divorcs)
682 INDEX
[References are to sections]

ABUSE OF MARITAL RIGHTS,

DAIS! CHUL EY’ 3.5 o0 0 oe sisan-d-dsaahed ore Weta dork Sunde 8 BROS RRS DA DEE 358
ABUSIVE LANGUAGE,

As cruelty............. a auisnte Ata cma Saale toe Sau eee 360
ACCESS,

Presumption of husbands, in legitimacy cases...............- 458

Spouses incompetent as to......... 0... cette eee 165

Of parents to child after divorce.................000eeeeeeee 450
ACCORD AND SATISFACTION,

Guardian may bind ward by..............-.. eee ee eee eee 761
ACCOUNTING,

To ward out of court........... 0... cece ee eee eee 2. 768
ACCOUNTS,

Of QU ATID 22 cine Sak ace WEVA oa Rad Se eee ss 765 et seq.

Charging guardian’s, when also personal representative........ 734

(See GuARDIAN AND Warp)

ACCOUNT STATED,

By-iMfaNts ese 3 asta ese dais hes seeks Lauineelea alae ne 28 Gears Se napersle 578
ACKNOWLEDGMENT,

As evidence of marriage............... 000 cece eae 106, 108, 110

Effect of parent’s, on legitimacy of child..................... 456

Same—Conflict of laws... 0.0.0.6... cece cee eens 456, 457

Separate, of wife to bar dower................0 00 cece eee eeee 210

Separate, of wife’s deed......... 0.0... ce cece cee eee eee 249

Of deed of homestead.......... 2... eee eee e reece eee eee 264

Of debt contracted during infancy................... ee ee eee 569
ACTION,

Ratification of infant’s contract by.........-... 0. cece ee eee 572

Rescission of infant’s contract by................0ceeeeeeeee 574
ACTIONS,

For breach of promise, nature of........ 2.0... ccc cee eee eee 25

(See Promise To Marry)
By and against husband and wife...................... 291 et seq.
(See HusBAND AND WIFE; JOINDER)
For déath ‘of child v.22: :c.ctcacecue pias dav eewneneadekyyesiees 515
For injuries to child................... 00. cece eee eee 509 et seq

(See PARENT AND CuILD)
INDEX 683

[References are to sections]

ACTIONS—continued.

By and against infants........0.000 00... c ccc cee eee ee 615 et seq.

(See Inrancy)
By and against insane persons...................00000. 663 et seq.
(See Insanfry)

By deaf atid dutinbiss was i essuwsy aux red eee eee dies ee Kdules cassie 694

By and against convicts.............0.0. 00 ccc cece ee ee eee ee 701

By and against aliens............000 0.0. c ccc cece scene neces 717

By and against foreign sovereigns or their representatives. . cxse TL?

By and against alien enemies................ 0.000. e eae eeee 719

By and against guardians...................c000e eee 732, 748, 762

Between guardian and ward...............0..ceceeeseeeaes 764

By and against foreign guardians................00.. eee cece 737
ADDITIONAL BOND,

Liability of surety for guardian on................-.00000008 772
ADEMPTION,

Of legacy by provision in nature of an advancement.......... 506
ADMINISTRATION,

Husband’s right of.........0.0 0.0.00 ccc cece cence eeeeeeees 170

On estate of life convict... 2.0.0.0... 0. cc cece e eee ee eees 702
ADMINISTRATOR,

INPanit 88 ince equa s accents dose y ae ages Sede Re aes es 611

Not usually appointed guardian................2.00eeeeeeee 729

FAS (PUATOIADY 2 14a atid tpoamelaras ob ecra stad eeaeele pees 34 734
ADMISSIONS,

As evidence of marriage........... 0... c cece eee 106

An diVOreGs SUS issn sc hnevies aisha adele Gana ex eee seems 440

Of ‘service by Infant). « scovess gees cumadeacoatenwnd ae cines x 618
ADOPTED CHILD,

Definition and nature of adoption............... 00.0000 e eee 464

One may adopt his illegitimate child........................ 464

Rights of child where adoption defective.................... 464

Requisites of formal adoption.................. 2.2 eee eee 465

Domicile and conflict of laws as to adoption.................. 465

Who may adopt and be adopted................. 0... e eee 466

Inheritance by and from adopted child...................... 467

Personal relations of an adopted parent...............--000- 467

Rights of adopted child under will................ 0.0200 e eee 468
ADULT,

Adoption’ (Of; cee wsqausss sitet a ciaanea sean ee ARS Ys pote Seale 466

Rights and liabilities of child at home after full age........... 474

Seduction sOf a. sca c < auccsntes was sae eB aaesiece J susuna Soo Randi Be Bean 524
684 INDEX ts
[ References are to sections]

ADULTERINE BASTARD,

Inheritance: by sss. siis's se atalino suave dee waee Bee RS 460
ADULTERY,
And elopement as bar to dower.............6eeeeeeceeeees 213
As affecting larceny by wife or paramour..................i. 156
As affecting mother’s right to custody of child.............-.. 448
As ground for divorce.............. 2... ccc eee ee ee eens 350 et seq.
(See Drvorce)
Pleading in divorce.......... 0.00 ccc cece cee eee eee 435
Proof of, in divorce. ........... 0. 0c cece ee cnet eee ees 443
Consequences of, independent of divorce.................+--- 353
Effect of, upon deserter’s offer to return................-.-5- 372
Suit for divorce for, as affecting continuity for desertion....... 272
Effect of wife’s, concealed upor postnuptial settlement upon her 285
Effect of, on wife’s right to support...................0-004. 122
ADVANCEMENT,
Definition and nature........... 2.0.0. cece eee eee eee 502, 503
Distinguished from loan or gift...........--.0s ee eee eee eee 502
OTIgIh 4 lacs. caw eet hee Aa oe AE aoe ane te ee Geee SSeS 503
How share of child advanced is determined.................. 504
Bringing advancement into hotchpot...................-... 504
Valuation of advancement...............02002 eee cee eee eee 504
Interest: ON s-..65 3.4422 ¥eicese dene: Pe slg es ae ee age ees 504
What deemed an advancement...............-.220222 00005 505
Sums for support and education not.....................2.. 505
Provision for starting child in life presumed to be............. 505
In cases Of VeStaCYy. 22.0 2 wane nana Ae Sad aaa Meee ereeae 3 506

ADVERSE POSSESSION,

As) bar to dower: aos ess sesa54 seks s eee es oedere jee es ate es 219
AFFECTIONS,
Alienation of spouse’s.............. 2. cee ceeeeeeeeenees 144, 148

(See ALIENATION OF AFFECTIONS)
+ AFFINITY,
Relationship by, as an impediment to marriage............ 54, 55, 56

AFTER-ACQUIRED PROPERTY,

f Of spouses, conflict of laws touching. ....................005 301
Whether wife may charge in equity................0000.000- 226

*

AFTER-BORN CHILD,
Rights under parent’s will............. cece eceneeeeees 302 et seq.
INDEX 685

[References are to sections]

AGE,
Presumptions of criminal capacity vary with............. 622 et seq.
Of consent to marriage. ..... 0.2... ec eee 36
Of consent in criminal law ..............0.0 000000 c cece ee eee 626

(See Inrancy)

AGENCY,
Mutual of spouses, in general..... 0.00.00. 309
Wife’s for husband .............. 2.0 c ccc e cence crew n eens 310
Ratification by husband of wife’s acts of..................4. 310
Wife’s implied where husband absent....................... 311
Husband's fOr Wile: ccc savas ceed vng ane aw ees dee em oslo 312
Ratification and estoppel as tO.......... 00... e cece cece eee ees 312
Of husband in wife’s separate trade .............. 0.00 cee eeee 289
Of spouses for third person............... 0.0 e cece eee e eee es 313
Revocation of, by marriage... ............ 26sec cece cece ees 314
Spouse as witness in cases Of .... 0.0.00. eee eee eee tenes 161
Wife’s for realization of her support................... 120, 121, 122

(See HusBanp AND WIFE)

Liability of parent for child’s necessaries on theory of .......... 491
Liability of parent for child’s torts under SASSI OF sderos Reman anes 491
By and for mnfants.. jecccecckiemertulotionma sobmedtantorns 607

AGENT,
Barritig: GOWer bY sq cav eas stuns eee cece vow eee RY 210
Husband taking wife’s choses in action as ................0005 171
Property held by wife as..........0 000 cece ee eee eee 167
Property in possession of wife’s.......... 0000. c cece eee nee 167
Infant’s appointment of........ 0... eee eee eee 542
Is infant liable for torts of?.......... 0.000 cc ccc eens 600
Of husband procuring wife’s adultery..................000008 399

AGREEMENT TO MARRY,
(See Promisr to Marry)
AGREEMENTS FOR SEPARATION,

Nature, requisites and validity....................0000- 317 et seq.
(See SEPARATION)

ALIENAGE,
AL DAR CO ICUTLES Ysa eazas eiaeien a Seay wet abiecaiin Sean Bineaee scale 201
Of husband as bar to dower.............. 0. cece e eee eee 212
Effect of husband’s on wife’s capacities..................-... 184
ALIENATION,
Of Homestead... ces:s cess whovaua ar fas dud Wavalaae salam) aaarnien 257, 263, 264
Wife’s power of, over equitable separate estate.............. 224, 225
Restraints on, as to wife’s equitable separate estate ..... 224, 225, 692

Wife’s power of, over statutory separate estate.............. . 249
686 INDEX
[References are to sections]

ALIENATION OF AFFECTIONS,

Actions for, of spouse............. ccc cece eee eee e teens 144, 148
Letters of spouse as evidence in actions for...............+-65 165

ALIEN ENEMY,
(See CrrizENs AND ALIENS)

ALIENS,
(See CrrizeNs AND ALIENS)
ALIMONY,
In General
Origin, nature and kinds............ 2... cece eee eee eee nee 408
Authority and jurisdiction over........... 0... ee eee eee e ee 409
As an independent right........... 02... ce cece eee eee 410
Tn MINE SUIS eee ces eee Snia cch Sear eae hee Bad ea ee Tee 411
To husband or guilty wife......... 2... eee eee eeee ee eee 412
Temporary Alimony
General rules a8 t0....... 0.0... cece cece eee eee eect eens 413
Wife must make prima facie case.................. eee eee eee 413
Marriage must be prima facie shown................-000e0 ee 413
Takes place of support pendente lite...................... we. 413
Principles of allowance............... 0.00 e eee eee ee 414
Wife’s needs and husband’s abilities...................-005. 414
RTM OUEN GS icettlese ny By sists ay ele ethene Bae suey wees Skoda be wae daaCae bide Lb 415
When commences.......... asst ar ac eects hu Some Eat gp oder alana 416
OM appeal gets eects oes ma ma MOR BMG Baar ed 417
Other allowances pendente lite............... 0... cece eens 418
Permanent on Limited Divorce
Jurisdiction to grant....... 0... cece cece eee eee n ee eee 419
Principles of allowance........... 0... ccc e cece cece teenies 419
Characteristics) acs is age cease cia yee he Skee Sa See ew oe 420
How far subject to change..............-.. cece cece cece eee 421
Basis and amount............. 0... c cece cece cece cet eeeeues 422
Permanent Upon Absolute Divorce
(nS general icc ndniis ein hes Buin eee ntaadde Gan tes Gewese 423
Power to revise decree..... 0.1... cece cece eee eee 423
DitratiOn: OF oes secede Bink os wc soa shaw ead uihivers e Gusial se # MeO S de 424
AMOUNE, Bigs sce ciets cia cand cei MIAN ado sea nee Oe Me eoitiea: 3 425
Division and restoration of property upon divorce............ 426
Miscellaneous
After divorce in another state............ 00. c cee ec eee eeeee 341
No personal judgment for in ex parte divorce............... 338, 339
Voluntary appearance gives jurisdiction over.............. 338, 347
Under retrospective divorce act.............0. 00... cece 349
Decree stands in licu of wife’s right to support............... 327
INDEX 687

(References are to sections]

ALIMONY—continued.
Power of federal courts over... 6.00... eee cee 332, 427
Effect of marriage settlement on............. 00... eee eevee 280
Enforcement of Alimony Decrees
Iw general. 3s cn.sica% egerksnay seameies canal ca eee aees weloe es 427
Ex parte and foreign decrees. .......... 00... eee cee eee eee 427
Effect of bankruptcy on. ..... 0... cee eee ees 428
AMBASSADORS,
Suitssawainst), 2.050 5¢iconsnx se o45a EWE Reed ene ate 716
ANCILLIARY GUARDIANSHIP ......... 0... cece eee eee eee 737

(See GUARDIAN AND Warp)

ANTENUPTIAL AGREEMENT,
As to domicile of spouses... .......... cece cece eee er eeaee 117, 269
(See MARRIAGE SETTLEMENTS)

ANTENUPTIAL CONTRACTS,

Wife’s, at common law........... 0... eee eee eee eens . 180
Wife’s, under statutes... 0.0.0.2... 6... c cc cece eee ete ene 253
Actions to enforce................. i casi Rane ary ss BU a 180
Between) Spouses: « sicnecchotiaag nomad eee eed tees eng 185
ANTENUPTIAL DEBTS,
Wife's, at common law............. 00. c ec ee eect e eens 180
Wife's, tinder statutes 02. o.cas veentes yeasercaamnadseeensees 253
Actions ito-enloree:. «cman. nese Megara eae eee de aes EY Sg 180
Infant liable for wife's... cess cesar d en gues eeaee sce eeedas 544
ANTENUPTIAL SETTLEMENTS. ............-......55. 269 et seq.

(See MarriaGeE SETTLEMENTS)

ANTENUPTIAL TORTS,

Husband’s liability for wife’s............. 2. cece eee eens 132, 180

Statutory chanves). xc snenscusehi canned oaeesd cumen pees 132

arate Toei Se ered seesutes cuentas eeetuda coeds 133, 134, 135, 294

TO Wileicss + cextas sees ds eee eee re Re Seu Ee wae e se eRee ees 136
ANTICIPATION,

Clause against, in trust for married woman............... 224, 692

Power of, as to wife’s equitable separate estate......... 224, 225, 227
APPEAL,

Marriage during time for, from divorce decree................ 67

Marriage with criminal pending his.......................-. 383

Right to prosecute in divorce after death of party............ 438

Temporary alimony O0.......... 0. ccc e eee e eee eee 417
ae

688 INDEX
[References are to sections]
APPEARANCE,
By infant, no waiver of service............0++-eee reece eee 618
Voluntary, in divorce suit... ......... 0002 e ee eee eee eee 347
Where neither party to divorce suit domiciled confers no juris-
GiCtiON: 6 sis ase cee ARS AR POE e hee Dee aw eee R TORE 338
By defendant where plaintiff domiciled gives jurisdiction... ... 338
APPRENTICESHIP,
In PenePaly cini.4 seinen ahh ga dual ae Se ae eRe eee OEY 588
VONMNSEY in cca cen cede eek wie es dara ntee ia REPRE eee 588
CompulsOry: .caccousee recta aae beaters auuelie wea 64 CARS EERO 588
How entered intO..........0 6c cece ete eee eee 589
Consent of guardian to........0. 00 cee eect eee 742
Authority and rights of master.............. 0006: e ee eeeee 590
Enticing or harboring apprentice.............-.-.-..+..4-5: 590
Maater’s right to remove from state..............6.0 cece eee 590
Right to discipline............ 02.65.60. 008.sae sega sw ece ee eeeae 590
Right to services Of... 0405.0 eae tee bee ee een 590
Under defective indentures................. 00.0 e eee 590
Duties Of Master .../< 2 ceed cana Ge nde Vase Ledameeet ade 591
To protect and maintain........... 0... c cece ee eee 591
PO instructs aii cigs sad ayers Hae SAREE gtene ee ares ORE 591
Assignment of indentures......... 0.0.0.0 c cece eee eee 592
Termination of apprenticeship................ 0. cece eee 592
ARBITRATION,
Infant’s submission to........0.. 0... cece eee eee eee eee 577
Power of guardian to submit ward’s controversies to.......... 761
ARREST,
Actual or threatened as avoiding marriage................... 75, 76
And detention of supposed lumatic.....................0. 632, 633
ARSON,
By spouse in burning other's property....................... 156
ARTICLES OF PEACE,
Wife may exhibit, against husband......................... 131

ARTICLES OF SEPARATION,
(See SEPARATION)

ASSAULT,
Husband chastising wife, guilty of........................ 115, 156
One may justify in defense of child or other member of family.. 487
Parent may be criminally liable Oe on child.............. 484, 485
Excessive parental chastisement as. saath veneers 484, 485

Teacher may be liable for, for excessive e dhastisement sae cba Sedat 534
INDEX 689
[References are to sections]

ASSAULT—continued.
Davina tic: able fOr sic ores 24 mancoaimancin tie ccvdek com wnanp awe aeneas 655
Infant: lablestor:. ogc aa eens aes amid dais goes eek mal was Ree 593
To rape, by boy under fourteen................. 0000 cece eee 624
Indecent, upon female child. .............. 0.0. eee e eee eens 626
ASSIGNMENT,

Of wife’s choses in action as reduction to husband’s possession.. 171

ASSIGNMENT FOR CREDITORS,
Infant may be bound by............. 0. cece cece eee een enee 542

ASSIGNMENT OF DOWER,
By guardians on science savuny sos sande nee eewelgiw Seasons 750
(See Dowrr)

ASSUMPSIT,

Liability of infant in, following conversion.................+. 542
ATTAINDER,

Nature and consequences of..............-.000000 .... -698 et seq.

(See Convicts)
ATTEMPT TO KILL,

Bi Orn GY eases isc Scene ech cae Mowe acts Sos Bdetse Shee Peau es astyasnapnbalens 364
ATTORNEY,

Barniig dower bys eiucsau scare mses d meee eed eed oan 210

When services of, deemed necessaries for wife................ 125

Fees of, in wife’s divorce suit, as necessaries.................. 125

(See Power or ATToRNEY; AGENCY)

AVOIDANCE,
Of contract for drunkenness............ 0.0 c cece cece eee ees 680
Of mfant’sCOntTACt i: .aoc poem nser acess tae eh eee ware 557 et seq.
Of infant !siMarriage....22 cas acing Seton eows eR caw teases 41
(See InFaNncy)
Of lunatic’s contracts......... te A Pc ce NP en Sl as 643
OF Tunatic’s marriage... 0s. cse ae Ge dae ade oe SEMEL Me 46
Of separation agreement.............. 0.22 cece cece ee ee eee 325
Of marriage for fraud or duress. ........... 0.0 - cece eee eens 77
AWARD,
against an infanti.e os: soccwsaes geaass ees enawe nas vw ees ee 577
B
BAGGAGE,
Testimony of one spouse as to otherg...............200 eens 160

44
690 INDEX
[References are to sections]

BAILMENT,

Liability of infant bailee............00--- cece rece re eseenes 599
BANK,

Duty of guardian as to depositing ward’s funds in.........+-- 755
BANKRUPTCY,

Effect of, on alimony.............- pos Sa dite ba ek sane 428

Of guardian, cause for removal.........------:seeesereereee 784
BASTARD,

Cannot marry blood relative within prohibited degrees........ 56

Concealment of birth of, as fraud in marriage............-.-- 70
BASTARDY,

Actual or threatened arrest or prosecution for, as duress in mar-

<a 75

Nature of proceeding for...........-. 2 ees e cece eter teens 461
BASTARDY BOND,

Infant: liable Ones. ¢ isoes cacao es awe vied. gseewacee dea eeee es 542
BAWDY-HOUSE,

Visiting, as evidence of adultery...............- eee eee eeeee 443

BED AND BOARD,
marriage abroad after divorce from............... 2. see eeee 100
(See Divorce)

BELLIGERENTS,
(See CrmizENs aND ALIENS)
BEQUEST,
To unbormichild so. s:nnae vageins Coes ti wat et Sen hieen cinaeke 453
To wife’s separate USC... 2... cece cere w ee eees 222
BIBLE,
In public: schools... ss issiccics seve vce s caeedes cies s cacdenenes 533
BIGAMY,
Wn Generals iasisnk eta ciduuessdacroe sede sanidesl eaios News s 60
As a criminal offense........... eee e ccc e cece c eee eeeeeeee 60
Prior marriage essential in... ........ 0... cee ee eee cence 156
Proof and presumptions as to marriage in.................. 108, 109
Proof and presumptions as to death or divorce in.............. 109
BILLS AND NOTES,
Made and indorsed by infants...............0....c0ceeeee -. 5%

Of intoxicated persons............0..0 0.00. cece eeu aeeeeee 681
INDEX 691
[References are to sections]

BIRTH OF ISSUE,

As requisite of curtesy............. 2c cece eect e eect eeees 196, 197
BONA FIDE HOLDER,
Of infant’s commercial paper.................0.2000005 sau OCS
Of drunkard’s commercial paper............ Lies 681
BONA FIDE PURCHASERS,
Marriage as a consideration as against...........-......00005 270
Under 27 Eliz., Chap. 4........00 0.0000 cece cece een ee eee 290
Postnuptial settlements and............... 0.0. c cece eee ee 286
IS POUSCRIBS So co sitins haar tesiundle Gbvarie dard Cavin sd cedeualehoeangue anaes 287
From lunatics’ grantee... 0.0... 0.00. 647
From drunkard’s grantee or vendee................00ceeeee 681
BOND,
Infants, with penalty... ...2256.00 00003 5ecebueeeenaeueens 578
Of private corporation as investments by guardian............. 753
Necessity for guardian’s.... 0... ..... 0... c eee c cece eeeeenes 731
Remedies on guardian’s............ 0.00.0. ee ee ee eee 765 et seq.

(See GuaRDIAN AND Warp)
BOUNTY MONEY,

Infants right to, as against parent...................eeeeaee 469
BREACH OF PROMISE,
Liability of stranger for inducing...................000eee eee 7

(See Promise To Marry)
BURDEN OF PROOF,

TN diVOrGO. 22 szacrtneeee seen Vn eee Pe maw anak Ye eRe 442
Of insanity—In general........... 0... cece eee eee 667
Of testamentary capacity...... 0.2.2. cece ee eee 667, 682
(See Evipence; PRESUMPTIONS)
BURIAL,
Of deceased child. ..... 2... eee eee ees 498
Of deceased spouse................ 0. eee e cece e eee ee 129, 130
BUSINESS,
Guardian employing ward’s funds in.................0ceeeee 754

(See Separate TRADE)
BUSINESS CAPACITY,

’ As related to testamentary capacity...0...........ceeceeeees 651
Cc
CANON LAW,
And the English ecclesiastical.................. cece eee eeee 35n

As to marriage after Council of Trent,.....,.........0eeeneee 84
692 INDEX

(References are to sections]

CAPACITY TO MARRY,
Conflict of laws as to..... ad eonaatcniaraees eehaiees a est ana eave .-- 97
(See MARRIAGE)

CAPITAL PUNISHMENT,
OF tnfaiitss ii. occ ei dees hd lees ca tee Suma 33 AOR HEBEL Ee See 627

CARNAL KNOWLEDGE,
Of female Ghil@ss.c.c-sccxoa cca aad bead ooeie ees Hed $a Hews RSs 626

CELEBRATION OF MARRIAGE,
(See MarrraGe)

CERTIFICATE OF MARRIAGE,

AB OVId ONCE ie 252 acad Da Yackle nel os dase eee eT OOS 104
CHAMPERTY,

Agreement between parent and child may constitute........... 487
CHANCERY,

Jurisdiction over custody of children.................. 479, 480, 481

Jurisdiction over infants...............000 002 cece eee eee 628

Power to remove guardians.............00e-ee eee cece eee 782

Wards of. .................-. et Sobel Sanh STs Gee card eat ona die heh a 742
CHANCERY GUARDIANS,

Powers! Ofc g.we cis dna gars Wau zation ewan xia sede awed yon. 638
CHASTISEMENT,

Husband has no right of, over wife..............0...00...0... 115

Of BPPPENtCO ss. cad socks ka Maes be a nw werd ee eagal ae Re 590

Of Child 5. 9:55 aicig.e gains ped Anion RE Gens ea RAs sea 484, 485

OR WALD ces cides eutly de hte ROE aM anid Ny drags oe Sead Bn ge he fa. 744

Of pupil soos oobi aj ese siis ys des ow en oe ee er Chose 534, 585
CHASTITY,

Previous in seduction............. 0.0.0.0. ccc eee cece eas 520

CHATTELS REAL,

Husband’s rights in wife’s.... 00... eee een 173

Rights of husband’s creditors in wife’s....................... 173
CHILD,

Born after limited divorce. ...............0.00 000000 c cae 827, 455

Citizenship 0f 0 iiscc os pene cede ae cnaeeeae yee dea vauneeuun 711

Consent to marriage of... 0.2.0.2... cece cece eee. 92
INDEX 693

[References are to sections]

CHILD—continued.
In ventre-s8 meres 3s .0y 2s awees sevens erases eeaaies  peales ea es 453
Posthumous under will... 2.0.0... cece eee eee e een 302n
After-born, under will.... 0.0.0... 303
CHILDREN,
As witnesses in divorce suits... 0.2... cece cece eee eens 441
Custody Of ncccmex varus ¥ sists Penge equine camawa oan anes 479
(See PaRENT AND CHILD)
When wife entitled to earnings of........... 0.000 c cece ees 240
Custody of, pending and after divorce................... 446 et seq.
Support of, pending divorce... ..........0. 0c cece eee eee eee 418
Custody of, under separation agreements...............--0-5 323
When deemed within the marriage consideration under marriage
SettleMent.:).5-c 20k dtaneeu ccd te sear eeanes tamtwe sae 270
Very young, incapable of contributory negligence............. 605
Maintaining dangerous agencies attractive to................. 604
CHINESE,
Intermarriage of, with whites................ 0... ee eee eee 57
May be citizens by birth.........0....0 0.0000 c ccc cee 721
Not entitled to naturalization............ 0.00. e eee eee eee 721
VixelusiOn Acts: eae isis cee 35 4 kachane s vans ada Re RARE EEaS 721
Entitled to due process of law and equal protection of law... .. 718, 721

(See CrrizeNs AND ALIENS; CONSTITUTIONAL LAW)

CHIVALRY,
GUardian It scain ey aie aye eeied. owadmow eeatdnd voles oe neeee 722n

CHOSES IN ACTION,

Husband’s right in wife’s...... 0... 0. e eee eee eee 168

What deemed, of wife.......0. 00... tenes 167, 169

Reduction of, to possession by husband................-... 171, 293
CHOSES IN POSSESSION,

Husband took wife’s, absolutely at common law............... 167

What deenied s.:.¢o%.0 a5 sseuees eeus aesaeas eeu reaeeee x 167, 169

ACtIONB £0: TECOVER. .ic.5.c sida cena oka eee gee eee a eae 293

CHRISTIAN SCIENCE,

Belief in, not delusion... 0.0.0.0... cece cece ee cece eee eens 652
CITIZENS AND ALIENS,

In general—Definitions........... 0... ccc cece eee eee ees 709, 710

How citizenship acquired............ 0. cece cece eee eee 711

Citizenship by births. eos cecwes sews es os eins panna sierne 711

Citizenship by naturalization.............. 0.00. cece eee 711
694 INDEX

[References are to sections]

CITIZENS AND ALIENS—continued.

Citizenship by marriage..............- 200s eee cece wow C11
How citizenship lost—Expatriation..........--.--+seeeseee 712
Power of government to exclude or deport aliens......-.------ 713
Aliens entitled to equal protection of laws........-+--+-++++-+5 713
But not to equal privileges with citizens..........-.-.-++++-+-- 713
May hold and transmit personal property.......-.-+-+-+-+: 718, 714
May acquire realty by devise or purchase and hold until office
FOUNG s aioe Hx Ree ukk gga ewe nto dame ie ee Sees He ded 714
But not by descent or otherwise by operation of law.........--- 714
Descent between brothers and sister8..........- +255 5-52 ee 714
Rights of aliens in realty as affected by treaty and statutes...... 714
Contracts of alien friends. ............2...02 se eee eee 715
Crimes of aliens... 2.2.2.2... 002.2 tees 716
Torta of aliens... 0.0.0... 2... c cece eee eee ent eneee 716
Suits by and against aliens................6 00-2 e eee eee eee 717
Immunity of sovereigns and their representatives from suit. .... 717
Rule as to consuls... . 2.2.0... ee ce eens 717
Contracts with alien enemies. ..............0 06. e eee eee 718
Under license to trade. ........ 0... eee cece eee eee tees 718
Ransont bills)... ic cps se see ese BES RE Ewe Gade s Hams Re 718
Contracts of prisoners of war.... 1.20.2... 2 eee eee eee eee 718
Ante bellum contracts. .......... 006. ee cee eens 718
Actions by and against alien enemies...............-.--4+++0 719

CIVIL DAMAGE ACTS,

Nature, validity and construction.. ...............--.065- 151, 152
CIVIL DEATH,

Nature and consequences of...............-+-++5- ... -698, 701, 702

Effect of husband’s on wife’s capacity to sue.................. 296

On her capacity to contract......... 0.02. eee eee eee 184

Does not give consummate dower. .......-. 06.0. e cece eee nees 206

CLASS LEGISLATION,

Legislative divorce as... 2.2... eee eee cee eens 330
CLERGYMAN,

Not necessary to valid marriage at common law.............. 83, 84
COCAINE,

Excessive use of, as drunkenness... 2.2.2... .. cece eee cece eee 673
COHABITATION,

Right of matrimonial... ... 2.2.2... 0... ccc eee e eee e ees 114

Limited divorce terminates right to..........00..0 000000. 0 cae 327

As evidence of marriage..... 0.00.0... ccc ccc ceca ceceuee 106

Effect of voluntary, upon marriage under fraud or duresa....... 7
INDEX 695
[References are to sections]

COHABITATION—continued.
No remedy to compel............ Ceaeee Maines Sarees wos als 149
As condonation in divorce...... SeMEe ¢ Sie CAGES EateE es 392, 393
Effect of resuming in desertion.............--0 eee eee eens 372
COLLATERAL ATTACK,
On divorce dSGreé oii. segues ccqas petees Sees sere ewe es 432
On judgment against infant............ 2. cece ee eee eens 618
On guardians final account. ............0. 2c eee eee eee eee 767

COLLATERAL KINDRED,
Not usually deemed within influence of marriage consideration

Urider’ SettlEMENt 2... sci scenes Caan d Devons dace en ew ene es 270
(See DESCENT, INHERITANCE)
COLLUSION,
As ‘a, defense in: divorc@s<< 2% e.neacavasy caGaeee Hola eee eS 401
Definition and nature.......... He wnaate x eda s He PG AlaaS * 401
Paying plaintiff to procure divorce a8.......... 00sec cece eens 401
Agreement to offend or appear to offend as........... Lorawaiees 402
Offending in hope of divorce a8......... 2... 0 ccc eee eee eee 403
Facilitating divorce a8. ...... 00... cece eee cee eee eens 404
Effect of, on right to impeach fraudulent divorce.............. 432
COLORED CHILDREN,
Separate schools for..............- Wig eaien eS epaca wears 531
COMMITMENT,
OF lunatic to asym. .o..:0.:5 6 cds caren stated BROS MOR O6 632
Of children to penal or charitable institutions............ 627 et seq.

(See Inrants)
COMMON DRUNKARD,

COMMON SCHOOLS,
(See TEACHER AND Pupit; ConstTituTIoNAL Law)

COMMUNITY PROPERTY,

INO SCUTLEBY ID ioaccig care areyoisisse waavaiaie hoanaen dais a iacwuale’ oa Rava dcaemionee Geet 200

No dowerin's sass sawiss scodaac spans eenee'y sega as nea saan 209
COMMUNITY SYSTEM,

Origin and nature Of ...260: 000 ss eyes teces sean s saaeas sees 267

Incidents of ownership under............ 2. ese e eee renee ee 268
COMPENSATION,

Of quardian’s.2 vecuev seus vanieowke gaaaeS eS yea weve cine . 787

COMPOUND INTEREST,
When guardian chargeable with. ............eceeeeseees coer @O2
696 INDEX

[References are to sections]

COMPROMISE,
By infant of his cause of action.................00 0000 eee eee 602
Of ward’s claims by guardian.....................-- oad a ets 761

COMPULSORY EDUCATION,

Nature and constitutionality of laws as to...............-. ... 497
CONCEALMENT,
By infant of his title as estoppel... .............-2 eee eee eee 587
(See Fraup)
CONDITIONAL PROMISE,
As ratification of infant’s contract..................0...00 eee 570
Of marriage............. See MESSRS ema aceon Sea yansl Svc aeaieet Balers 21

CONDITION SUBSEQUENT,
Agreement to support parent may be deemed in conveyance to

Child jaateey idence Wiss eae wares cee wey auranees Bila anette 500
CONDONATION,
Effect on wife’s right to support ..................20 20 cee eee 122
As a defense in divorce ....... 2.2... 00 ccc cece eens 391
Definition and nature..........0. 00000. c cece eee eee ee 391
Must be accepted ......... 20... teen eee 391
Must be voluntary ........... 0... eee eee 392
Cohabitation (as jes ci dedi yee pan OSS Canta ee ee een Ge yeR ss 392
Knowledge of offense condoned.....................00 2c ee 393
Ability to prove offense 2.0.0... 2.0002. 393
Condonation of cruelty... 2.0... 0. eee eee eee 394
Is conditional and new offense revives old.................... 395
Character of new offense... 0.0.0.0... 0.0.0 c ccc ee cece cece cece 395
CONFESSIONS,
As proof of marriage ..... 0.0... 0c eee eee ee 106
TMidIVORCEISULGS widecuie austen Qew sn 4 ues Uwe Mot ea eeu nee Wale 440
Of anfanite's.<2cacsenigehcn spud vied aha es hha cet gow dna i 614n.
CONFIDENTIAL COMMUNICATIONS,
Between husband and wife............00 0.0... c cece ecce ee eee 164
CONFIRMATION,
Of sale of land by guardian ..............0.0 00.0000 c ccc eee 759
CONFLICT OF LAWS,
As to marriage generally... 22... cece eee 95
As to formalities of marriage celebration..................... 95
As to capacity to marry ... 0.6... ec ee eee eee 97
As to place of marriage celebration........................ 97, 101
INDEX 697

[References are to sections]

CONFLICT OF LAWS—continued.

As to personal relations of spouses .............seee cece eens 111
As to personalty of spouses ... 0.2.0.0... 00. esc ee eee eee 301
As to contracts of wife . 2.2.6... eee eee 301
As to realty of spouses, including dower and marriage settlements 301
As to death by wrongful act.............00..-e ee eee Syinentan 155
Ag tGdiVoreey: aces avacics aera eee eee eeoesien VR 333, 338
(See Divorce, DomiciLn, JURISDICTION)
As to alimony in ex parte and foreign divorce ................. 427
With respect to infancy»... 0.2... eee eee ee eee 540
As to legitimation of bastards.................0 00 cece eee 456, 457
AS! LOA OplOl a = excess nancsd ve ahs MeRRES Sea Deed Ge AAS 465
As to inheritance by an adopted child..................0..05- 465
As to finding of mental incapacity. ............. 0.00 eee e ee ees 636
As to suits by and between aliens ............. 0000 e eee 716, 717
As to jurisdiction to appoint guardian ............-.....20055 727
CONJUGAL RIGHTS,
Transactions in fraud Of............. 2. cece cence cece eee eee 277
CONNIVANCE,
As a defense in divorce............. 0. cece cece ence ee neenees 396
Definition and nature: << ..2¢00s06sesace:¢eensa vee eves anee 396
Consent, willingness and negligence as. .... ee eee 397
Articles of separation a8... 4.05. cee eee teens eee nae 398
Cruelty and abandonment as, in adultery.................... 398
Palure: tO prevent o.s2c accncs. viewer inn dren weislbiane Seudanien Shido 399
Proctriie: adultery ssc.c<neccc cnn cain «niet semen Sams 399
ACtSiOF AGERE I: soe oscar acnte sc dcoteasen sonte aug s GeeR hae cae Hace 399
At one offense as bar to earlier or later.................00005- 400
Of husband in crim. con... ............-. ccc eee eens 146
CONSANGTINITY,
Relationship by, as an impediment to marriage............ 53 et seq.
CONSENT,
As connivance in divorce .............0: ccc ceeeeee cece neces 397
What essential to marriage .....................--0-- 78, 79, 89, 90
By husband to wife’s debauchment ......................5-. 146
Does not alone confer divorce jurisdiction.................... 338
CONSERVATOR,
Of estate of convict........ 20... ccc cece ee eee eee een eeeees 702
(See GUARDIAN AND Warp; INSANE PERSONS)
CONSIDERATION,
Infant’s duty to return, on disaffirmance of contract......... 565, 566

Same, on disaffirmance of deed............ 0 cece e cece nee 583
698

INDEX

[References are to sections]

CONSIDERATION—continued.

For ratification by infant.............. 0... cece eee eee eee 567
Retaining or disposing of, after full age as a ratification......... 571
For promise to marry .. 6.0.0.6. 0 0.00. 10
Infant’s promise to marry iS............ 00. e eee eee eee eee 10
Restoration of, on rescission of lunatic’s contract...........-.- 643
Same, on avoidance of deed............-...2. 0c eee Sade 647
Restoration of; by drunkard...............000. 02 cece eens 680
Marriage as under statute of frauds.................20000005 272
For antenuptial settlement ................. 0.02 eee eee 27, 269
MAITIBS6 AB Boss seis 4 Waele Wala Rial aa Phebe. desis ba dnc atraae 270
Who deemed within influence of.................02 00s eeaee 270
For postnuptial settlement.............-...-00 see e eee eee 281, 282
Failure of, for marriage settlement...............6-2-2 200005 271
Furnished by husband for conveyance to wife................. 288
For wife’s promise to pay when discovert............-......65 182
CONSORTIUM,
DCH a5 aie ercel Sa elec es wining atelale acne dae uaseracinleigs eae 142
ANPUPIES CO soars oesle cree nse tiewad Zaewyaleaw ane tas wae aioe 142 et seq
(See Huspanp AND WiFE)
CONSPIRACY,
BetwO@n SPOUSES: <.o:e.c65 coi ges siavggera sig ene te sie ereraig elaveieie els eee Wier 156

CONSTITUTIONAL LAW,

As to statutes regulating female labor.................ee000005 2
Marriage not a contract under... 3.2.0... ccc cece eee eens 34
Validity of statutes against miscegenation...................- 58
Civil damage acts constitutional................00.000 0.00 eee 151
Curtesy initiate under... 2.22... cece eee eee 195
Inchoate dower as a vested right under..................... 202
Consummate dower under.............. 0000 cece cece eee ees 204
Married women’s acts under...............0. 00 cc cece cece 236
As to legislative divorce.........0..00.0 00000 c cece cece eee eee 330
As to divorce legislation generally................ ayenSre's Heese 349
Ex parte divorces under. ............... 0000 c ene ee ee eeee 338, 340
As to vaccination of pupils in public schools ................ 532
As to establishment of separate colored schools................ 531
As to religious exercises and instruction in public schools ....... 533
Statutes for the protection of infants ........................ 626

Jury trial in proceedings for custody or special guardianship . .626, 628
(See Jovenrte Court)

Compulsory education laws. ..............0 00. c ccc eeeuceeees 497
As to citizenship and naturalization................ 0000000 Til
Aliens entitled to equal protection of laws.................... 713

But not to equality with citizens.................00000 00000 713
INDEX 699

[References are to sections}

CONSTITUTIONAL LAW—conitinued.
As to exclusion or deportation of aliens by state or federal gov-

CINMEDG a nag owns amuse saad nwewar hee bea w ene ye 713
Chinese entitled to due process .........-2...2 00 cee ce eee eens 721
Chinese entitled to equal protection of laws.................6. 721
Chinese exclusion acts... 0.0.0... 6... c cece cece ence eee e eens 721
As to trial by jury and due process in lunacy cases............. 634

CONSTRUCTION,
Of civil damage ‘acts! <.2.2. 00000000 exes ceeeede eee bee ee deter 151
Of marriage statutes........0. 00... ccc cece eee eee eee 87
Of married women’s acts ...........0.0 00. e cence eee eee eeeee 237
Of marriage articles or agreements................0-0+ 20006: 274

CONSTRUCTIVE SERVICE,

In divorce: suits), 02s ccnee deawes few leue peowee neanenns 340, 342, 347
CONSULS,
ACEIONS AG AINSE 25 -t04 ion ncalsedesnaind 3 chclnta g Sed Goneua tS lecausvere danseuduescepa A 717
CONSUMMATION,
Of marriage induced by fraud ...............ce eee eee ence eee 68
CONTINUITY,
Ofidesertion: sxc.0s yedendins Gee as ioctew dis Sawaal sacs 372
CONTRACTS,
In unreasonable restraint of marriage.............-..0000eeeee 31
Marriage Droca ge: 0.60 j.sse2sse ne wiie eb cia evese s wie cece acess ake 32
Promotive of separation or divorce..................005 33, 317, 320
Written as proof of marriage... 6.0... kee cece eee eens 104
Marital cohabitation as consideration for ..................-- 114
Effect of marriage on husband’s ................ 2002 cceeneee 179
Husband’s liability for wife’s antenuptial .................. 179, 180
Validity of wife’s postnuptial at common law................. 182
Exceptions to wife’s common-law incapacity for............ ee =184
Same; INVCCUILV Ee ncacndaasseaas Sosaeweau San ceweles 224, 225, 229
Same, under statutes....... 0.6... c eee cece eee eee 243 et seq.
Conflict of Jaws as to wife’s capacity for.................-060- 301
As to custody of child. .......... 0... c cece eee ee eee eee 481

By child after full age to pay parent for support during infancy .. 488
As to services and support between parent and child or other

members of family or household ...................0. ee ees 474
Of father to support bastard .............. 000.0 eee eee eee 461
With stepfather for support of child..................000000 494
Action on, with guardian............ 6.00. cee cece eens 748

Parent’s for necessaries for child. .,.......-.....00- cee eeeeee 491
700 INDEX

[References are to sections]

CONTRACTS—continued.
Child’s to support parent............. 2... cece e eee eee ee 500
Age of capacity for, determined by lex loci contractus.......... 540
Of infants generally. ....... 2.0... cece eee ee eens 541 et seq.
(See Inrancy)
Torts of infants connected with............2.....20 0000 ee eee 596
OF NSSNE esses oa sia eek aod ON aed Ee See SEES oh eee ee 639 et seq.
(See INSANITY)
Of drunkards.......... ee ee ee or re 678 et seq.
Of spendthrift’s under guardianship..................---0-05 691
Wath Convicts: vais os chins doen ddets 2m uatiale oxtmene ea chase aca wae ima 701
Wath alien friends 2 sso: sich ¥ 24 seeg oe kode Bees oe ele 715
With alien enemies ............... 0.0: e cece cece eee e eee 715, 718
Who bound by guardians in discharge of trust ................ 762
20; Adopt: Childs, se). 5c 6 tins ed alan tod eae he Rass ok Rane EOE SS 464
Emancipating child... 2.2... 0... cece eee cece eee neenes 477
Parent’s right to earnings under child’s .............00-0eee0+ 472
CONTRIBUTORY NEGLIGENCE,
Oftchilde scite'y sa de tae4 Geeses oa 8 ek Ga ey owed aaa 515, 605
Imputable, of parent or custodian ...............000ce eee 606
Of child bars parent .......... 0.0... ccc ecee ee eceeeeeeeee 509, 515
Parent’s bars parent where child injured..................... 509
Of drunken person. ......... 0.0.0.0 cece cence cece eee eeee 683
OF NMG sss os gah ican Buen ee Hades ok aoe Loe yess 657
Of thecdeat 25o casa ovogarn cadens oaaaius adieeeh add See ee eis ee 696
Ofte: blind Sec eseis ie weetneeurmdace saaeee Lares eases dee eek 697
CONVERSION,
Infant liable for... 0.2.0.2... ccc cece cece n ween eens 593
When infant liable in assumpsit following .................... 542
By infant bailee... 2.2.0.0... ccc cece ee eee ne eees 599
CONVEYANCE,
OF wife's lands ic: ¢ c0da vba eat nd aes dyke ea wee Senne dele od 176, 249
Liability of wife on covenants in............0..... 0.0 ce eee eee 250
Joinder of wife in husband’s to bar dower .................... 210
Joinder of husband and wife in, to bar curtesy................ 201
In fraud of conjugal rights.... 2.2.00... 00. eee cceeecee 277
Of homestead... 0.0... e cece cece cen eeateuuecees 263, 264
Between spouses ............. 000.00 ccc eee cece ees 282, 283, 284
Antenuptial, in fraud of creditors..............0...0.0c0 0, 270, 278
To defeat alimony. ........ 0.0... ccc cece cece eee eeneeaeues 427
By parent to child in consideration of support................. 500
By infant sess cee ok gHednks gives sachee b wand okabe Soames owns 559, 580

(See Inrancy; Marriace SETTLEMENTS)
INDEX 701
[References are to sections]

CONVEYANCE—continued.
By lunatic: <cagsssewas ce vmerekawe deemed s eee ds wale d Ba 647, 648
(See InsanE Persons)
By spendthrifts, .ccoaveu aaaxnrgearcars oh oxygenase ueutyh 691
By alien, sitntt oat wna aga roars blah de eo eas eee eB 714
BY (COMVICb sass ve wae ese Gass smnds seed eae aeme neaeess 701
By guardian of ward’s lands................c0ccceueeees 757 et seq.

(See GUARDIAN AND Warp)

CONVICTION OF CRIME,

As ground for divorce.......... 0.00 ccc cece eee e nee n eee 315, 316
CONVICT LABOR,
Liability of lessee of, for tort to convict..............000c eee 708
Same—For wages of one illegally convicted.................. 708
CONVICTS,
Status of—in general... 2.01... eee eee eens 698
Convict: defined 9: sccios sous tes eeaae he eee Pocasie bE eae 698
Attainder upon conviction of treason or felony................ 698
None after misdemeanor ............ 00... cece eee eee eee 698
When attainder complete............... 0... cece ee cee eens 698
QUItLa WEY? uteahixd sation ee Aen ee suka & Rhanite a eeneialy-centeey Hie etousnenace 698n
Consequences of attainder............ 0... cece cece eee eee 698
Samie— PF Orleiture:« cawow sscupasa emer ase y ae ase ee 699
Corruption of blood ............ 0c cece ccc cece enna 700
Civil deaths. cwaevecuge ces euea youews shan teense ees 701, 703
InfaMy ste vy eexeet gaaes sages ee heres teen oo eee ee eeenees 701
Status of under modern law................. 0 ccc eeee eee eens 702
Civil death under statutes .......0.. 0.0 e cece cee tees 702
Effect on domestic ties .............. 0... c cee e eee eee eee 702
Sentence in foreign state ............ 00. cece eee eee 702
Convicts as witnesses... 0.6.62. ee ence eee eee nee 703
Credibility of, where competent........................000- 704
May be disqualified from holding office .......... iets Tec yeeaenns es 705
Oras jUrorsas¢ vacdes cess tetas: eee emcee ee etonh 705
OF a8 VOLES 2d seuns neseanesanied cateeeeeebe xeseuee awnee 705
Pardon and its effects.............. 000: cece eee eect aee 706
Effect of, upon divorce............ 0.00. e cence eens 706
COPIES DY: srsisshe a cecreosin teas NG aha ond Areca lees Steins daacioshad od utnendes 708
CRIMGS A PAITBb i 3 conan ad acca 2 tonne eau win CRATER Aunts mero 708
Issiable in torticceccs4oaotwaread seule + knee edawan ee eens 708
May have redress for tort.........0..00 0000 c cece eee eee 708
Cannot sue state forss.: xn2dcennastereae barrens eee died wees 708
Nor prison or prison authorities .............0......0000 0005 708
Save for willful injuries...........0.0.... 00k cece eee eee ees 708

Liability of sheriff, ete... 0.0.0... ccc cece eee renee v08
702 INDEX
[References are to sections]

CONVICTS—continued.
State or county not liable to, for condition of jail.............. 708
Liability of lessees of convict labor for injuries to convict....... 708
CO-PARTNERS.
(See PartTNERSHIP)
COPULA,
Presumption of marriage arising from pending engagement .... . 90
Not essential to valid marriage .............. 0. eee e eee e eens 89

CORPORATE SECURITIES,

Investment by guardian in........... 6... e eee eee ene eee 753
CORPORATION,

AB PUBPUIAN ss. c60.904.4 act dae doe Se Me Nea G Ss BA Ne wel ea boa 729

Infants as stockholders in............... 00: eee eee eee eee 576

Non-resident aliens as shareholders in .............--.-.+++-- 713
CORROBORATION,

In divorce suits 2.0.0... cc eee teen eee e renee 442

CORRUPTION OF BLOOD,

On conviction of crime. .........0.. 000 ccc eee eee eee 698
COSTS,

No personal judgment for, in ex parte divorce................. 329
COUNCIL OF TRENT,

Decree of not binding in England or Scotland................. 84
COURTS,

Jurisdiction to grant divorce...............0.0. 0c cece ene 332
COVENANTS,

In deeds of married women ...............0... cece eecceuee 250
COVERTURE,

Common law theory of.........0 0.0... c ccc cece eee eens 111, 112

(See Marriace, Husspanp anp WIFE)

CREDIBILITY,

As affected by insanity. ............. 000.00. c ccc eee cece e eee 672

Conviction of crime as affecting ..........00 0.00. .0c cece ee ee 704
CREDIT,

* Purchase by wife upon, under statutes...,,.,.,,...,.. «ans oe 245
INDEX 703

[References are to sections]

CREDITORS,
Dower as against, general, of husband ..... Laken ad wommiee eaves 208
Fraud on, in antenuptial settlements...............0..0.0005 278
Marriage as consideration for settlement as against............ 270
Of husband in wife’s equity to a settlement................4.. 217
Of husband in wife’s equitable separate estate ................ 227
Of husband paying for conveyance to wife..................05 288
Postnuptial settlement in fraud of subsequent ................ 289
Of parent have no right in child’s property ................... 469
Rights in child’s earnings...............0. 0.000 cc ceeeaae 471, 472
Of spouse under 13 Eliz., Chap. 5........0. 00.0000. c cee eee 287
Postnuptial settlement and............... 0.0. c cece cues 286
Gift of husband’s services as against............0.....000000 289
Presumption of wife’s ownership as against husbands .......... 300
Presumption of fraud upon, from husband’s possession of wife’s
PIOPEIt ys iass cancer neuen cumray aoa oy a suskda’s Seales se eoauié 300
Rights of as to policies on husband’s life..............2...054. 242
Rights of husband’s as to wife’s choses in action............... 172
Rights of husband’s in wife’s chattels real .................... 173
Same—in wife’s freeholds............... 000 cece cece teen eens 175
Rights of husband where wife sole trader...............2--055 229
Rights of parents in earnings of emancipated child........... 477, 478
Rights of under ora] agreement for marriage settlement ........ 273
Rights under postnuptial settlement ....................000. 281
Rights where husband carries on business with wife’s property .. 240
Under conveyance of exempt property...............2000000 289
CRIMES,
Burden of proving capacity or incapacity for.................. 670
Privileged communications in prosecutions for................ 164
By ambassadors and public ministers....................005- 716
By and against infants ............0... 202. e eee ee eee 622 et seq.
(See InFancy)
By and between husband and wife ................ esse eee 131, 156
(See Huspanp aND Wire)
BBY COMA WACEB sis gaentseis Gaaetsi.en tas cansniuse citudsatcn! coneyaqws dia sopustiel sedip en tes 708
(See Convicts)
Husband and wife as witnesses in crimes against one another.... 158
OE CORE MUNG EB fa sn fints faeces hae racasicnald aunt Pesaiece oun ate 496
OF Arimken Persons. o.i5.4c sessed vddeeave Dareenducnd acerscpan aiaeaenses Bad 684
(See DRuNKaAgDS)
OE EG ITB ATG ss eyo 3 canvintar vo accor ests aguas d dseandles desneaued anand 658 et seq.

(See Insanity)
What deemed infamous ...........-e cere eecer ener ee enees 703, 704
704. INDEX
{References are to sections]
CRIMINAL,

Marriage with pending appeal............... 0.0 e eee ee eens 383
(See Convicts, CRIMES)

CRIMINAL ACTS,

Not cruelty .cisc ko ace dveoes age ta eee ode eee es Fi alee wastes 360
CRIMINAL CAPACITY,

OF infants... gseee sink ceuaus ph Aa oe eGald tages ees Reese 622 et seq.
CRIMINAL CASES,

Evidence of marriage in ............00 cece cence ee en eee eee 108
CRIMINAL CONVERSATION,

Actions fOFr'oessii.2 gacde yea gens ewes aay sea see eae 142 et seq.

Letters of spouses in actions for............0 00.0 cece eee eee 165

Proof of marriage in, : 2.5 0.6402 .4e6e S24 nae ees Heese eee eeean 108
CRIMINAL INSANE

Prosecution and confinement of...............- cece eee eee 662
CRIMINAL INTENT,

Capacity to form: iiss doc sete ye wee dey Sealhar bee eaewnees 658 et seq.

Drunkenness may preclude ............... 0.00 cece eee eeeee 685
CROSS BILL,

Non-domiciled defendant may have divorce upon............. 335
CRUELTY,

DAVOrG@ 1OPS sinc. 4 diese amet S08 eitlee o Adan eater es 4a 355 et seq.

(See Divorce) :

Pleading, in divorce. ............ 0.000 ccc cece cece eee e ees 435

Proof iof; in: divorces 44 cass ey viet sb 2d des Ys Ve dod ylis dequedaw oe 444

Statutory definitions of............. 00.0.0. c ccc eee eee eee 364
CULTIVATION,

By guardian of ward’s lands...................00000 cece .. 750
CURATIVE ACT,

As to deeds of married women................... 0000000 eee 249

For invalid marriage... . 2.0.00... cece eee eee 94
CURTESY,

Definition and nature..............00.0 0.00... 0 cece eee eee 194

Sta ORs oie ae 326 wer ons Rael howto oS Wireelag. doheae hase eed ee e.g 195

Curtesy initiate a vested estate..........0.0000 0.0. cece 195

Rights of husband’s creditors in......................0..... 195

Birth of issue requisite to... 2.0.0.0... 0000 cece cee ccc eee ee 196
INDEX 705
[References are to sections]

CURTESY—continued.
What seizin of wife gives... 0.0... cece nee eee 198
Out of what estates... 00... ec eee es 198
In reversions and remainders...............00000 00 eee eueee 199
In equitable and separate estates.........00..0000. 0c eee eee 200
Statutory changes in the law of.............000... cece eves 200
How defeated or barred. ......0..000 0.0 ccc cece eee eee 201
CUSTODY,
Of legitimate child... 00... 0000 .e cee eee 479 et seq.
Pending and after divorce............0 00.0.0. e eee 446 et seq.
Under separation agreement............... 0.000 ccc eee eeeee 323
(See PaRENT anp CuiLp; Integrrimare Crip; INFrants)
Of bastard: sauces saciiaa's ais pee ane ee Cas ey Sere ewe eee 462
Right of guardian to ward’s.........0....000 0 ccc ccc ceueeeees 739
Of Wunatiesisswes 24a mes ges aes dos wes eetean dan anid axed 632,: 633, 634
CUSTOM,
Immoral no defense to action of seduction.................065 526
D
DAMAGES,
For breach of promise............... 000. c eee eee eee ee 27 et seq.
In husband’s sole action for tort to wife... 0.2.0... 0... e cee eee 138
In joint action for tort to wife......... 00... eee eee eee 139
For wrongs to consortium.................000e eee 142, 143, 150
In parent’s action for injuries to child.....................04. 514
In child’s action for its own injuries............... 0000 e eee 509
For seduction of daughter.............0.......0. 00000 527 et seq.
For death of spouse... 0.0.0.0... 0... cece eee teen tneees 154
For death of childs « :205-3s¢ cs oc4seeo44naener ae bere SaaS eo 4 516
Por COG: Dy: TNE ore. 5: rapids <8 Sioa ba ota Satay aad wk Ger hase pan 601, 602
Insanity in mitigation of............... 0. cece ee eee eee 656
Drunkenness in mitigation of, for defamation................ 684
Recovered by ward should be paid to guardian................ 747
DANGEROUS AGENCIES,
Entrusting young child with................ 0... e cess 508
DANGEROUS IMPLEMENTS OR APPLIANCES,
Liability for maintaining those attractive to children........... 604
DEAF AND DUMB,
Presumption of mental competency....................00005 693
Prima facie have civil capacity............... 0... a eee eee ee 694
Competent as witnesses.......... 00. cece cece 695
Torts And sCrumes: OF) vc. seinina sy «tines cerdoons acted Studd nea oouele ko 696

45
706 INDEX

[References are to sections]

DEATH,
Presumption as to, in favor of subsequent marriage............ 109
Effect of, as to wife’s frecholds............. 22.0.0: ee eee eee 174
On wife’s chattels real.... 0.2... 0.00: c eee c cece nee 173
Effect of husband’s on wife’s postnuptial torts................ 134
Effect of spouses on wife’s antenuptial debts.................. 180
Effect on wife’s equity to a settlement.................--.4.. 232
Of wife as to her equitable separate estate............-...-005 227
Effect on testimonial capacity of surviving spouse............. 162
Of husband necessary to consummated dower................-. 206
Effect of, on alimony......... 00.0000 cece eee eect ee eee ee 420
Abates' divorce suite. +s00siya6-sses ee sereee nes mer eee ee ays he 438
Effect of,on alimony............. 0.000 e ee eee ee eeeee 424
On right to impeach fraudulent divorce......... soem 432, 434
Of issue does not revive husband’s will.................. .-.e. 802
As terminating guardianship...............--.-.. eee e eee 778
Money paid to guardian after............. 0.2000 c cece eee 786
Lunatic liable for causing.............. 0.0.00. c eee eee ee ees 655
Avoidance of infant’s deed or contract after............-..... 559
GCivilesccee tags vadtaeed a nadiny soe altar er al uate oagiaey ned 698, 701, 702
DEATH BY WRONGFUL ACT,
Right to recover for, of spouse ......... 0... cece eee eee eee 153
Right to recover for, of parent or child....... cncucdnestsc sages 153, 515
Right to recover for, of bastard................ cece cence eeeee 463
DEBAUCHMENT,
Of Wifes iced uate cade Mosteins Detideg Vuemabss dees mee 142, 143, 145
OF childicdvicercsaausiomvewiahels o5.Ghees FORO eee tea ake o348 517 et seq
(See Sepucrion)
DEBTS,
Power of wife to change equitable separate estate with her...... 225
Wife’s antenuptial...........0... 0c cece ecu c anes ccccceesane 180
DECEASED WIFE’S SISTER,
Marriage With............... cece cence SERS tae -. 54
DECEIT,
(See Fraup)
DECREE,

(See Drvorce; Atimony; Nuurry; Jupam=nr)
DECREE NISI,
Nature and effect of............ 0... ccccccecescccues sins Sibpe 430

DEED,
(See Conveyance; Estopren)
i INDEX 707

[References are to sections]:

DEFAMATION,
No action for, between spouses. ........ 0... 0c ccs eece cee eeees 156
Is lunatic liable for?.. 2... cece cece en eaees 656
Infant; liablenfOr's «...cca224 44 xede ee oe ates a2 oe pees ee aed eee 595
By drunken pergon...... 0.0.0.0. .0 0c c cece cece eee eeees 683
Inducing breach of promise.............0..00. 0000 c cee eeee 7
DEFAULT,
DivorceUpons: aoxox down ty Vee Pad apace dee gee ke Ree 440
Does not constitute collusion................0000% foie 94 tates 440
Judgment by, against married woman.................. setae s 298
DEFENSES,
Am divorces: cash de sit w iin eulen aw dele meen s Dai ox BASS 387
Anticipating, in divorce... ....... 0. cc cece eee e eee n eens 435
To breach of promise suit... 2.2... 0.0. cece eee eee e eee 22 et seq.
In Seduction :.:.. Ge scu vedi eee eee aeaee Ei enb he arses eae ws 519, 526
In criminal conversation........... 00.2 c cece cc eee cece eeeee 146
DEFICIENCY JUDGMENT,
Against feme covert...............ceeeeeeeee hdc mean eos wail 251
DELAY,
As'a: bar to divorce: aac a: cue ees Aes ss aeese es weed ¥ seed os aeee 405
DELINQUENT CHILD,
Commitment to special institution or guardianship............ 627
DELUSION,
As affecting contract............. 02 cece eee e eee erence 640
As adefense to crime... ........ 6. e cece cece eee eee eneee 659
As affecting: wille.: sssc<rwed sac twrosd Gases Gay ewe eee 652
Defined and distinguished................. 0s eee cece eens 652
(See Insane Persons)
DESCENT,
Alien cannot take or transmit by.............. sage dS ae ee ES 714
Between brothers and sisters is immediate...................- 714
By and from adopted child. .... 2.02.66. 0c cece cee eee 467
Conflict of laws as to same..... 2.0... eee ee eee eee 465
Of community property.........50 06.66 c eee eee 268
Of homesteads ces su sh te0 oad ee ees bee ae ees oe eRe OS 263
To and from bastard............. 00 cece cece cence eee eetnees 460
DESERTION,
As ground for divorce......... 0.0 ect eee e eee e eens 365 et seq.
How affected by insanity of deserter..............0.0ec ee eees 372n
Pleading in divorce............-. 5-00. e seer eee eee eee eens 435
Proof’of in saMG) aectss oh share bee RRA e eee spa eR eee WEEE S 445

(See ABANDONMENT)
708 INDEX

[References are to sections]

DETECTIVES,
As witnesses in divorce... .......0. 0.0 cececeeeeeeeeeenenees 441
Bringing about adultery............... cece eee eee eee eens 399
DEVISE,
OF homiestead s. osci ck peaches wakene cs ankeind chung a ae sales Rees 265
To: Unborn Child oc. 5224 cgse bev hin a4 eA Ra ea A Mena ak ue EA 453
To wife’s separate use... 0.6.6... eee ete eee 222

DIPLOMATIC AGENTS,

Immunity of, from suit.......... 0000. cece eee eee 717
DIPSOMANIA,

As defense to crime. . 1.2.0.0... eee cee te tee eens 689

In divorce. .............. i fb eagded Beg Serene @eptonest beara DON A 373
DISCIPLINE,

Right of, by husband over wife.............000 2 cece cece neues 115

Guardian’s right of, over ward...........00.000 0c e cece ee eaae 744

Parental, righty:O8 sco 3.s4 since couse saace done enctoa es Gears Boek aes 484, 485
DISCRETION OF COURT,

DIVOrCe Is. 6 se weds Mee es A eae ded Ge eee aa Be ae Ee 385
DISEASE,

As affecting contract to marry..... 2.0.0... cece eee eee eee 815

Concealment or misrepresentation as to, in marriage........... 71

(See SypHitis; VENEREAL DisEaseE)

DISTRIBUTIVE SHARE,

Of wife is chose in action. ............ 0... e cece cence eee 167, 169
DIVISION OF PROPERTY,

WpPOn divorcees jects seciik cca deans oan whe adam a He SARS 426
DIVORCE,

In General

Separation without... .......0.. 0... 317 et seq.

Definition, nature and kinds of................0. 0.0.00 cece ee 326

Divorce a vinculo matrimonii................. 00. c cece eee 326

Divorce a mensa et thoro.................... diaveiitive mises ax ie 326

English and American law as to absolute...............0.0004 326

Consequences of distinction between limited and absolute...... 326

Legitimacy of child born after limited...................., 327, 455

And decree of nullity distinguished......................04.. 328
INDEX 709

[References are to sections]

DIVORCLE—continued.
Jurisdiction to grant—In general............. cece eee e cece 331
How far statutory... 0.00000... ccc ccc e ceca enceevevecs 332
In federal courts. 20.0.0... 0... c ccc cee cece eee eeseeeues 332
Jurisdiction

Dependent on domicile. ..........00.00. 0.0. c cece ceceaceeaes 333
Wife’s separate for divorce purposes..............0cceeceueee 334
Plaintiff relying on defendant’s domicile..................... 335
May non-domiciled defendant file cross bill?................. 335
What sufficient residence or domicile to give divorce jurisdiction 336
Motive in changing domicile—evidence...................000. 337
Neither party domiciled, divorce void elsewhere............. 338, 344
Both parties domiciled, divorce valid elsewhere............... 338

Same—where plaintiff domiciled and defendant served within
StALS OF APPCALS sé via ssiecguisscangmautn A nneed-ed emma duncan ewtes 338
Ex parte decrees... .cs.04 penis cca ceeswwed dew oiled awte 340
How far affect right to alimony, dower, etc................... 341
Where invalid as to defendant.............000.0..00 cece eee 342
Doctrine of matrimonial domicile in...................-..04. 343
Estoppel where neither party domiciled...................... 344
Place of marriage or offense in..............000 00000 cece eee 345
Restraints on remarriage after...........0.. 0000.0. e eee 346
Notice, process and appearance in................000 000 cues 347
Causes for—In general........... 000000. cece eee eee eens 348
Constitutionality and interpretation of statutes............... 349
Under retrospective acts.....0..00000 00 cece cece neces 349
ANMONY UNEP saMCie sore gy oamnigy eee emeed sclnes Semie er ce 349

Causes for
In-generalia:dis tsa waa ox Hesaed MRS NE adn wapeadie deeds oa 348
Adultery—In general—What is................0 002 c eae 350, 351
Intercourse must be voluntary........ 0.00... cece cece eee 351
Party insane, raped or defrauded, not guilty of................ 351
Intercourse under void or voidable marriage as................ 352
Cruelty

Theory of divorce fori: 20021 senets acne. cannce ne vas eeanyes 355
What constitutes, in general............ 0... ccc eee eee 356
Evans: Us TEVGDS cco. ci5 dics deen seesasote dA aneusntnd eeinasidre- eeanuns gleaned 356
Cruelty CeHB Eds ico sinn'd aise camara danse vind Mod eau wedutan ee &anogubs 356

Physical violence—mental suffering—danger to health or reason
356, 357
False charges of adultery as.......... 0... 0c cece ee cee eee 357
Cruelty to children as cruelty to spouse................. 0005 357
Communicating syphilis as..........0. 0.0. c eee eee eee 357
Denial or abuse of marital rights................. 0.2 e eee 358
AGulbery as Cruelty wisce s.scoavyds tsnanevedaueséens Sbucogeers daimlaust-a aiveadle 357

SIDPIO AGES crag wesc cmeave dalaee Das aa Cameo near ars 359
710 INDEX

' [References are to sections]

DIVORCE—continued.
Animus or intent in... 2... ccc eee eee wees 360
Drunkenness not, unless coupled with violence................ 360
Gambling or extravagance not............. 0.22 e eee ee eee 360
Criminal conduct not......... 0... c cece eee eee e eens 360
Infirmities of temper—sallies of passion.............6.0e-+005 360
Effect of misconduct as jeopardizing life, health or reason....... 361
Misconduct of complainant...............-. 00.02 eee eee eee 362
Insanity of defendant............... 0. cece eee eee ee tee eens 363
Peculiar statutory terms... 0.0.0.0... cee eee eee ee eee 364
“Repeated. cruelty”? s... «dei: maike qteieie > siahngid's eieaie's a veieeces 364
Desertion
En Peter alls se isa ava y poate ota me Sealed Bus cans Dradn SAS eas oe 365
Defined—Malicious desertion—Utter desertion............... 366
Elements of desertion—intent...............00-0. 20 ee cece 368
Duty to attempt reconciliation.............0... 0.0.0 e eee 368
Must be without plaintiff’s consent ....................00- 367, 368
Must be substantial abandonment of marital duties ........... 369
Refusal of sexual intercourse as................-000 eee ec eeee 369
One:party:driven: out: ¢ 45.66 cs04se¥ haa Soe ee ee £E4 Sob Pet eeeS 370
Wife refusing to follow husband ...................02000000- 371
Time and continuity of desertion .................00.000 eee 372
How continuity broken—offer to return..............-.000005 372
Insanity of deserter....... PMS OF SALAS aie UE We herd denen Ot all 372n
Effect of offer to return... 2.2... cece eens 372
Effect of adultery upon such offer..................0.00e sees 372
Habitual Drunkenness
As ground for divorce defined .. 20... 0.0.0... 0. occ 373
Need not disqualify for business.................0000 00s eee 373
Need not be continuous ...... 0.22.22... ccc e ec e cece e eens 374
Effect of marrying with knowledge of.....................025 374
Coupled with wasting of estate...........0.0.0 0.0.0.0 ccc eee 375
Neglect to Provide
As ground for divorce, in general............0..00.0.. 00000 e eee 375
Time and extent of .. 2.0... cece cece cece eee eee ee eee 376
Husband must be able ..... 2.2.0... cece ee cee cece eee 377
Under peculiar statutes . 2.2.2.0... cece ccc cece eee 378
Wife’s needs and abilities. ..........0..0000 0.00. cee eee eee 379
Miscellaneous Grounds
Antenuptial pregnancy............. 2.0.0 cece cece cece ees 380
Antenuptial unchastity ............0.00.0000 00. cece eee eee 380
Divorce in another state. .... 02.0... cece cece ee 382
Voluntary separation............00.0 0 00sec cee eee eee ees 382
Uniting with Shakers... 0.0.0.0... 2. cece cece eee eee 382
Absence unheard Of............ cece cee cece ccc ceccucccucece 382
\
Sam
INDEX 711
[References are to sections]
DIVORCE—continued.
Crime and imprisonment.......... ee ee ee ee 383
Gross neglect of duty .......... 0... c cece ccc ce ceeceuceeees 384
Indignities rendering cohabitation intolerable ................ 384
Conduct rendering cohabitation unsafe and improper.......... 384
Habitual indulgence in violent and ungovernable temper. ...... 384
Divorce in discretion of court............ 0.0 cc0cecececeeees 385
For postnuptial insanity ...................... ee ee 386
The Defenses
In; petterall sig savers sa diay dacs wos Ga pews des & phe had pula Babee db ake 387
Reerimination s, « ..soca sie es cag ewe de baton ee eee ae naw eee 388 et seq.
(See REcRIMINATION)
Comd On ations ssiie ae secs scram seine < sabe red RANE SHG SEs 391 et seq.
(See ConponaTIon)
(Coniiivanée: «sacs sacedts paae ode dea sence eee: kee eas 396 et seq.
(See ConNIVANCE)
Collusion as a defense in. ........ 2.2.0 eee cee eee eee 401 et seq.
(See Cottuston)
Delay and insincerity. ........... 0... e cece cece eect ee eeees 405
The decree
When effective, «cio eos saan dinceicaier ina ma pwied ) ORwa oe Bae ea 429
DEGREE MIS arise seers 4A AAS GRA Rae AE HERE ae OR Ae GE 430
Void and voidable decrees ........ as ee Gch ay wee amma Be 431
Decree obtained by fraud............ 0... cece ee eee eee eee 432
What fraud ground for vacating ............. 0.00 eee eee ees 433
Rights of third persons as to fraudulent decree................ 434
Pleadings and Procedure
Essential allegations..............0.. 000.0 e cence eee eee eee 435
The procedures; i: i0+5+ awese ease ies ewe dst. ei eee ee Re 436
Rights of particeps criminis................ 000. e eee c eens 437
Evidence in suits for...........0.00 0000: cece cee eee eee eee 439
Neceasity for proof ........ 0.6.0. c cece eee nee n nanos 440
Witnesses in suits for............ 00052 cece cee eee eee 441
Weight and sufficiency of proof............-. 0... c cece eee es 442
Proof, of adultery: :seueis decease ne eee ie aks melee pha 443
Proof: of cruélty2 2 ictew sos alee tae ee eee ee Rea eee 444
Proof of desertion ................. eer 445
Custody and Support of Children in Divorce
Jurisdiction, OV6P.. << 10s saan ese on edn yee ede de ewe ee WE 446
. Custody pendente lite.........0-.0 6.5 e cece eee eens 447
Custody on and after divorce. ........6 6.6. c eect eee eee 448
May custody be given to stranger?..... 0.6.6... sees cree ees 449
450

Access and removal from state 0.0.0... cc ccc cece eee e nes
712 INDEX

[References are to sections]

DIVORCE—continued.
Custody where divorce denied...............0. 00 ccc ene 451
Maintenance of children after divorce ..................00005 452
ALIMONY IN, isis s 5208Aig taka ne $a ns Be nem A Sahoo bere ie 408 et seq.
(See ALIMONY)
Division of property in..... 1. eee eee eee eee 426
Miscellaneous Points
As bar to dower. ......... 0000. e eee e ene e nena eees 214
As bar to curtesy........00 200 cece eee eee eee eee 201
Effect of, on will of spouse...... 0.0.0.0... cece cece ee eee eens 308
Efiect on right to recover for torts of wife................0 000s 134
Effect on testimonial capacity............0 00 eee cece eee eee 162
Impediments to marriage following...............0.0000eeee 100
Legitimacy of child born after................. Litho oe bees 455
Lunatic as party to suit for........ 0... cee eee ees 644
Marriage after absolute or limited.................. 65, 66, 67, 100
Effect on husband’s liability for wife’s antenuptial debts........ 180
Wife’s right to fix child’s domicile after..................22005 483
Does not give spouse right to sue for other’s prior personal tort.. 125
Burden of proving.as against subsequent marriage............ 109

DOMESTIC RELATIONS,

Considered generally and in relation to status................. 1
DOMICILE,
Definition, nature and kinds of. ... 2.0.2.0... 0.0 cece eee eee 3, 4
Significance of, in relation to status and capacity.............. 3,5
General rules touching............... 0.0... cc cece ee ce eeeee 4
Of husband and wife... 2.2.0.0... ee eee ee eee eee ence 117
Of wife after divorce or death of husband.................. 117, 127
Marriage in evasion of. law of..................0005 96, 97, 99, 100
Wife’s capacity to contract as affected by.................... 301
Tn divorces issu sil we aneuott ne bec mandi Skee Kee 333, 336, 337, 338
Matrimonial, in divorce................ 000 cece ee ev eee eeeees 343
Estoppel to questions in divorce.............00000. cece ees 344
As entitling divorce decree to full faith and credit.............. 338
Refusal of wife to follow husband to new, as desertion.......... 371
Change of as affecting property rights of spouses.............. 301
With respect to adoption... .......0..0.0 0000. c cece cece nee 465
Of infantis veg weead ows tv Go DEEP Sawin tho oe amen 483, 743
(See Parent anp CurLp)
Of legitimate child. .........00 000 eee een 483
Of bastard iiss: Scien nr AOA Ee! «Bes ean eeial yee RIS MRED oe 462
ORGON VICE: 2. 26/5. saan Ze eres nl See ive ee aR Bx made as wctns 707
Of person non compos mentis................ 0.0.0 .c eee 637
INDEX 713
[References are to sections}

DOMICILE—continued.
Of ward as affecting jurisdiction to appoint guardian........... 727
Power of guardian to change ward’s..............00c0sceces 638, 743

DOMICILIARY GUARDIAN,
Rights and duties of...... 00.0.0... c cece cece ccacucucucuce 737

DOWER,

Nature and Extent of Right
Definition and nature..... 0.0.0.0. cece cece cee eees 202
Stages of—Inchoate.... 0.000000 0 00 cece ccc ce ccneueeuce 203
Power of legislature over... 2.000.000. c ccc cece cece eceuueee 203
As an incumbrance........0 0.00... e ene eeeees 203
Comaumimate iiss. cto ag aucnus yctuenswee decynienn wenteseran hie aneeauel all seae 204
Is a vested interest... 20.2.0... occ ee cece ceca eaes 204
Cannot be taken on execution until assignment .............. 204
ABSIE DINED EOF cree ad ance caput), sdeetaieaten aebeee ery GeOeen a ha sensei 205
Assignment of by guardian.......... 0.00... 00. c cee eee aeee 750
TR EQUISLEGS Of a terse erin cilia apie Settee tics gp amereinch sass ooialaceiiols 206
Same—Marriage 2.2... 0.0060 c cece eee ee ne ee ee cee 206
Seizin requisite to. 2.00. 00. ce. cece ccna eeneeuus 206
In what estates wife dowable...........0...00. 0.00 cece eeueee 207
None in life estates... 2.00... occ eee cee cece eeaes 207
Or in terms for years. ........0. 000.2 207
In equitable estates... 2.0... cece cence eens 207
Wa hO mes teed: soso scdraens cauitina aa fe does Memes tte mente aol ot 263
In mortgaged lands... 0002.02 eect dewsvess box soamEe emcees 207
In partnership lands. ...........000.0 0.00 ccc cece eee eeeee 207
Priority between and other claims and incumbrances.......... 208
As against general creditors...........0.0. 0.000 c eee 208
As against mechanic’s lien............. iver a ee AS AR ace 208
As against judgment................. iS a ase Speen evar Taye ten ees 208
Statutory changes and substitutes...........0.0..00 000 cece 209
How Barred

By joinder of wife in husband’s deed.................0000005 210
Separate examination and acknowledgment.................4. 210
By wife acting by attormey...........0..0 0.06... c eee 210
"Wihere: wife Ban. 5:5) ccssctaacntesnia us owaso-apaudnietors Biaulahaatn @ dascntuiersasastians 638
By alienage of husband or wife...........000- 000 c eee eeeee 212, 714
By wife’s adultery and elopement...................00 cea ee 213
BY divorcee nn aiuttas saumhaacities heap Eee eee eed eS 214, 341
By jOMmture 5% secck nates eeSenes te eee 2h dees Pe ee oe 215
By husband’ a willis: ss s0 sedass cose cea s Cad ee cE eee 216
By antenuptial settlement..........0.. 0.000 cece eee eee 215, 279
Condemnation or dedication of lands to public use,........... 217
Estoppel to claim................. a sate Sadie then ene one 218
Bapse of tinieaa bard saycaurigweosenaara ns ataen wet aivennammmvier dat 219

Alimony as compensation for.........00:cce cece sence enees 424
714 INDEX
[References are to sections]

DRUGS,
Supplying to spouse... 0.0... 0. cee ec eee cece eee ete aeeee 151
Excessive use of as “drunkenness”............000.2ee cece eee 673
Insanity caused by in crime..............- ce cece cence ee eee 689

DRUNKARDS, /
In general—Definitions............. 2... cece eee cence creer 673
Habitual drunkards............ 00... cc cece cee reer e eee 674
Jurisdiction over. .... 0.06... cece tenn ce ee 675
Guardianships: 3c asive deste etna Moe Ves bee mane 675
Control of persons of............ 0. ccc cece cece nett . 675
Effect of finding of habitual drunkenness and appointment of

Puardlal’. sees <4 se P hs. e BESS eeR RE ES 4 easier es ReER NEES 676, 679
Powers of guardian or committee of..........-....00 20sec eee 676
Removal of disability. ............. 0... cece eee eee cee eee 677
Contracts of drunkards and drunken persons................. 678
Fraud and partial intoxication............... 0.0.00 0s scence 678
Contracts of drunkard under guardianship................... 679
Contracts for necessaries............. 0c c cece ee eee ence ee ee 679
Ratification and avoidance of contracts of...............0.06- 680
Rights of bona fide purchaser from drunkards grantee or vendee. 681
Rule as to commercial paper... .........0.. 00. c cee cee tenes 681
Willejof seis wcaed sexes dares ss Shae betwee ake eee eae 682
Liable for torte’: s.aissss cite aines sed cds Raceteaba eee ees a 683
Negligence and contributory negligence of..................4- 683
AB! WITHEBBES 35. cies sntear deal E Siuauels a omens oa a8 iia eeuaea Maile aad 690
Drunkenness no defense to crime of............0.0-0000e0 ees 684
But may create physical incapacity for..................0006 684
May preclude specific intent.... 2.2... 0.6... ccc eee 685
Homicide and drunkenness at common law.................05 685
Under statutes’: sive ces coaeies aga havea eteged eid ease ks 686, 687
Involuntary drunkenness as a criminal defense................ 688
Insanity caused by alcohol or drugs as criminal defense—dipso-
MAN Beis sees Ve aks x beer Soames aninent< eeeeeea eee sewed as 689

DRUNKENNESS,
De6hined § is: k end oie otc ee wes oes dish ches Ree any een natR ded 673
As disqualifying for marriage. .................00ceeceeeeees 44
NOtGruelty 5% Gk.die Sst oes a tse blader baweek re eee 360
As ground for divorce............ .. cece cece cece eens 373, 374
Removal of guardian for............0.. 0.0 ccc ceeeeeeeeceees 784

(See Drunkarps)

DUE PROCESS OF LAW,

Aliens and Chinese entitled to. .............000 ccc cece eee 713, 721
In commitment of infants to special guardianship or institu-
HOD ciacoes valiaa Sop luawas Mek MEMEO ew eoy Asealaalnn Soe 628, 629
INDEX 715
{References are to sections]

DURESS,
As affecting marriage ..... 0.0000 o. ek  ce ce cues ae cuece 77
In engagement to marry .... 200.6. cce cee ceceeece 14
E
EARNING CAPACITY,
Right of infant to recover for diminution of..................- 602
EARNINGS,
Of wife at common law.........0.0.0 0.0. c ccc ccceeeceeeees 128
Under statutes. 2.0.0... cece cee ceneeeeeues 240, 254
OF minor child... sees gins pa4 Ged boa ued ess wane oneness 470 et seq.
Of adult child at home.................... Pina cleans Sasveen ee 474
OF bastards ye: sexes weeks oavaitiencccieceias aedaias Saweit acumen 463
ECCLESIASTICAL LAW, .
Relation of, to marriage and its incidents.......... ‘gays aebats 35n
Divorce within cognizance of............. 02. ccc eaeeeecs 332
And English divorce act of 1858... 22.0... cc cc cece cece cep eens 348
EDUCATION,
As a necessary for an infant.............. cece cece eee eeees 548
Parental right to direct and control..................0000000- 486
Parental duty to afford. .......0..0.... ccc ccc eee eee eens 497
Expenditures for, not advancements. ...............0000ee eee 505
Duty of guardian as to ward’s...............eceeeceeee eee 745
ELECTION,
Between dower and testamentary provision................ 216, 304
Between dower and settlement..................--0e eee eees 215
Between tort and contract as against infant................. 542, 596
Ward’s right of, where personalty invested in land............ 756
ELIZABETH,
Statutes of 13, ¢: Bisse. + scacesrateey ss wee es die ceases Saris 287
ELOPEMENT,
And adultery as affecting wife’s right to dower................ 213
As affecting liability of wife or paramour in larceny............ 156
EMANCIPATION,
Ofichild ice 4 icc catiaw oe eel tes abies VaeE ess ieee tees 475 et seq.
(See PaRENT AND CHILD)
EMBEZZLEMENT,
Infant: liable fors vue es eecnd oes oe Mi aecnio a siereeie.s Sincere ba earners 593

EMINENT DOMAIN,
Dower in lands taken under... ....... cesses eens ee eee ceerecs 217
716 INDEX
[References are to sections]

EMOTIONAL INSANITY,

ATG 9 | (- ee Pe ar 661
ENDORSEMENT,
BY inant <3ccieie. sale vik We bes saad SKOS YOCABBW EE DEED ORE 578

ENGAGEMENT TO MARRY,
(See PROMISE TO MARRY)

ENLISTMENT,

Ofinfant: <sscsscecea tein gett aces eck burda sites sem ove we 542
ENTICEMENT,

OP SPOUBE ss eseee cap artear esas ite gid Srvig te eK agua Hoe Sale ds ele a 148

OP ChIG: ece.jeas Seppe sdtit en dibwintay eileteweeopaiger hoax 529
ENTIRETIES,

Thevestate by <s oc teas aa sede sania ee nieces Hees Dee ess 177, 178
EPILEPTICS,

Marriage Of ico. nec siax soe tees saa on daw ad veely ed ee 52
EQUITABLE ESTATES,

DOWer Wes os pee vesa ie doe Hoe tad Wa SORA eee s Fane Ee 207

Curtesy I... 46 aig) das BE SaaS Hee PTET S Mae POE ae Ee Ra 198

EQUITABLE JOINTURE,
NSEUPE OF soa ck tecched apo h.o a crow ema Bowe dro dae WINS RO 215

(See HusBpanp anp Wire; SEPARATE Estate)

EQUITY,
Wife’s separate estate In... 2.2... ccc ee eee 220 et seq.
Alienation of same................ 00. .e eae Ase 4 oe Oe Ew REE 224, 225
(See Huspanp AND WIFE)
Wife’s debts and contracts in... 2... 2.2... eee eee eee 225
Wife’s contracts in, under modern statutes................. 246, 248
Jurisdiction of, to annul marriage.................0.0. 0000. 47, 77
How far will correct. wife’s deed. ...........00 0... c ccc eeeees 249
Infant’s frauds in... 2.0... ccc cece cee c ee eees 598
Jurisdiction of, over right of sepulchre.....................4. 130
Jurisdiction of over guardianship of infants................... 628
Over custody of children.................... 446, 479, 480, 481, 628
Over habitual drunkards. ...........00. 0.0.0 c cece cece cee es 675

Over UNatCG swiss dae es Main 0 8 Gentes base da deere oocees 635
INDEX 717

[References are to sections]

EQUITY—continued.
To award alimony without divorce...............0ceceeceees 410
Suits between spouses in ........0000. 0c c cece ceceeceuceucs 291
Wile’ s:Sults In. sacra cin ge shore mune ese een oivaweuieenee as 291
Allowing parent for child’s maintenance in................... 495
Attitude of, toward dealings between parent and child......... 501
Relief in, of lunatic against judgment........................ 666

EQUITY TO A SETTLEMENT,

ESCHEAT,
Mtralion’s lands). .s5s126vey5. sesatkowts wad ae dew ON haw wareew ede Savon 714

ESTOPPEL,
Of married woman by deed. .............. 0.0 ceeeeeceeeeeee 250
Of wife by fraudulent conduct.....................0000e eee 183
Of wate bY JUG EME tn.e ca scares sears ag sigs we ead waded xe 298
Of wife to claim as against husband’s creditors................ 300
Of wife to claim dower........... 00... cece eee ene eee 218
To question decree of divorce.......... 0... cee cee eee eee 344
Of husband to deny wife’s agency... ............00 cece neces 310
Of wife to deny husband’s agency............... 0.00 e eee eeee 312
Of parent to claim child’s earnings...................-..005. 736
Of infant to avoid conveyance. .......... 0. eee eee eee 579
Of infant through failure to assert title.................... 587, 598
Of infant: by deed os2shcs vee deere tegumy cee ead es bee se oes 587
Of infant: by Tecord secs vse red nee eeu auke dep eesauens 520
By false representations as to age. ........ 0.6... eee e eee eee 597, 598
Of sureties to question legality of guardian’s appointment...... 771

EVANS v. EVANS,

Lord ‘Stowellitticsees us cacee, eat ena daar wees owen enone 356
EVIDENCE,

Of contract to marry ........00. 0. cece eee teen eens 18

Of rescission of contract to Marry.........-- 00s eee eee eee eee 24

Of mental capacity for marriage.................6. 0c eee eee 43, 45

Of marriage to disqualify witness............. ese e eee eeee 159

Of marriage in general—Record—Witnesses—Presumptions 104 et seq.
(See MarriaGE PRESUMPTIONS)

Of foreign marriage.......... 0000 e cece eee ence e enone 109, 110
Of wife’s intention to charge her separate estate............ 225, 248
Weight and sufficiency of, for divorce.......:........- esse eee 442
Of access or non-access of husband.............. 0... cece eee 165

In suits against husband for wife’s necessaries...... 120, 121, 122, 123
718 INDEX

[References are to sections]

EVIDENCE—continued.
Of fraud in divorce decree........... ese c eee e eer ccc en eeeeee 433
Of legitimacy or illegitimacy............... 00-0 eee cere eees 458
Of contract to pay for services or necessaries of adult child at
OMe 2 esis hose wis ve bute bee Ws ee eminneaoeag owes 474
Of ownership between spouses.......-......-.: eee eee r eee 299
Of wife’s ownership as against husband’s creditors............. 300
Of gift from wife to husband.................. 0: eee eee ees 299
OF MGANILY.. asiisia dad wescie Wann s Mad Raa fae 43, 45, 667 et seq.
To show advancement............... 0c ccece ceca eee eeeceeee 505
(See Presumptions; WITNESS)
EXCESSES,
Rendering cohabitation insupportable...............s0eceees 364
EXECUTED CONTRACT,
Of linati¢: acs seins Sass: Bese te Re Stee tego ee ee ep 642
Of infant): des cic tadhis 3% aeave d Mabene satek ea Gea ek Be STeR 654 et seq.
EXECUTION,
Against wife’s separate property for her tort.................. 135
EXECUTOR,
WLAN GAS ve sicigetacn: secuserd.b wieus era: Sraelara sore lonasatey sfelasedgrecatereie Gren ees 611
AS! GUSTOIAD ocet oc ise Sabian ose deie vs hese eee eee es 729, 734
EXECUTORY CONTRACT,
Of infant: ss20 004 vsewe ss oes sy ees ea Nied yest e eda e 562 et seq.
Of lunaticve:: sccccee sti ss esis ee ee da sese es sidien wa tidiaie.6 642
EXEMPLARY DAMAGES,
For breach of promise..............sceceeecace Mieilsielsinatsye 30
None against lunatic. ............. cece eee e cece ececeseee ~.- 656
None against infant.......... 00. c cece cece eee e eee e ee ee cs 601
For wrongs to consortium... 2.2.00... cece cece cece ee eee eens 150
For seduction of daughter. ..............0ccccccccacecececes 528
EXEMPTIONS,
Sale or mortgage of husband’s exempt chattela................ 266
Conveyance or mortgage of, not fraudulent as to creditors....... 289

(See HomEsTEAD)

EX PARTE DIVORCE,

Nature and validity of. .............cceceeeecccucccccececs 339
Alimony and costs under..............cce cece eens eccececees 341
Where void as to defendant... .. 2.2.0.0... . ccc eee ee eee eeeee 341
Custody of children in. . 2.0.0.0... cece cece ccc c cece eas 446
INDEX 719

[References are to sections]

EXPATRIATION,

Nature and exercise of right of..............ccceeeeeeees 710, 712
EXPULSION,

Of pupil from public schools............... eudveieiEretameaies 535, 536, 537
EXTRAVAGANCE,

Noticruelt yi. ca saa cca ute va ao vaet iad sisi Se ae wists Cebvekees Sees: 360

F

FACULTIES,

Husband’s as basis for alimony......... ove geleieie's oie,aare ea Aen, 425
FALSE IMPRISONMENT,

In restraining alleged lunatic......... ee eee ore 632, 633

Dunatie lable for: 2. oe ovecicdes ssivtas sawew va wneay ac sess 655

Parent may be liable for......... GRE. Saiins ¢ Lae ee Naka ya 484
FAMILY HISTORY,

Tn 1G tiMACY CASES sco nek s cow ek angde's wei FOeB Se ea aes 458
FAMILY HOME,

Right to fix and regulate... 2.2.02... cc eee eee ee cnc eee eeneue 118
FAMILY NAME,

Right to Comber’ .secles esectld sa snanee ss aaeuat & EN seaiave ss <vensge-t Si Je Sioa 116
FAMILY NECESSARIES,

Wife’s liability for, under statutes... 2.0.0.0... 0... cc cee eee 255

(See Hussanp AND Wire; Necessaries; MAINTENANCE)

FEDERAL COURTS,

Have no divorce jurisdiction............c.cceeeeeeece scenes 332

Power of, over alimony. ..........-. 00s sceeeeeeeneee eens 332, 427
FELONY,

" Effect of conviction of............cececececeeeeeceeeers 698 et seq.

FIREARMS,

Intrusting child with. ..........cccc cece scence see enneees 508
FORECLOSURE,

When wife should be made defendant in.......... ised oMRa oe 119
FOREIGN DIVORCE,

Enforcement of decree for alimony in................0002005: 427

Validity dependent on domicile...................0ese ee eues 344n

As ground for divorce and alimony..........0+e+eseeeeeeeees 381
720 INDEX.
[References are to sections]

FOREIGN GUARDIAN,

Rights and powers of... ............. 00sec eee ee ceeeeneeaes 737
(See GUARDIAN AND WARD)
FOREIGN MARRIAGE,
Pr Ob Of 55-555 sin 5 de Mess b ws ese idog Bogie aoe niga aadstan A peau BG aye 110
FOREIGN SOVEREIGN,
Immunity of, from suit. ........ 0... cn eee eee 717
FORFEITURE,
Upon conviction of treason or felony..............00000 cece ee 521
Of wife’s equity to asettlement.............. 000 cece eee eee 232
Of antenuptial settlement... .........00.0 00.0000 e cece eee eee 280
FORMER RECOVERY,
Effect of parent’s on woman's right to sue for seduction........ 521
FRAUD,
Between engaged parties......................0..004. 6, 276, 277
In inducing contract to marry..................000 2 eee 12, 13, 14
Of third person inducing rescission of engagement to marry... .. 24
In inducing marriage................ 000 c cece eee 42, 44, 68.et seq.
Concealed impotency aS............. 00. e eee eens 50
Effect of, on marriage......... 0.0... V7
By wife connected with contract.............. 0.00 cee e eens 183
Upon conjugal rights.......................0.000005 215, 276, 277
May estop wife to claim dower............... 0.0000 c ewes 218
Presumption of, in dealings between spouses.................. 285
In settlement of exempt property................2.000000005 289
Presumption of, upon husband’s creditors through possession of
wife's propertys.. i.2i< ens ved ooyeied HaVdad Si arcahn lab ee aes 300
Presumption of where husband pays for conveyance to wife.... 288
Presumption of, in favor of husband’s creditors in postnuptial
SOU Tlemcen tis vr sis.c seats Soda Gye) 88 eidy da VaR auee Rikon Rial -b-atear neon 287
Upon purchasers under 27 Eliz., c. 4,..........00.0. 0000 eee 290
Intercourse obtained by, not adultery....................002. 351
Annulling divorce decree for.................0000c0 eee eee 432, 433
Upon creditors in gift by parent of child’s earnings............ 478
Presumption of, in dealing between parent and child.......... 501
Presumption of, in dealing between guardian and ward...... 763, 768
In accounting with ward of court............ 0.000.000 cee eee 768
By lunatics. sos de ex ccsiaees cy Gals <i aus wget witnatuew en ba dit 655
Of infant inducing contract.........0..00.0 0000. cece eee eee 597, 598
Precluding rescission of infant’s deed........................ 579
Connected with partial intoxication......................... 678
Concurring with feebleness of mind.......................... 631
Upon deaf mutes... 6.0.6.0... e eee eee 694
Upon the blind. jc cesses ee cic ke saa cv eae eee aa ew mm eed ag 697
INDEX 721

[References are to sections]

FREEHOLDS,
Husband’s estate in wife’s..........0 0.0... cc cece cece neue 174, 175
FUNERAL EXPENSES,
Rights and liabilities of surviving spouse as tO................ 129
Liability of parent for child’s........00.. 00... cece eee eee ees 498
G
GAMBLING,
NOt Cruelty so oss cisalsc wanes ea vices oabesur es cheater saxegedeaenst Ate :-.. 3860
GENERAL ISSUE,
Proof of, coverture under. .......... 00... cece cece cnet eens 298
GIFT,
Between spouses ........... 0... e cnet eee eene 185
Of husband’s services to wife... 0.0... 0. cece eee eee ees 289
Evidence of, between spouses............. 00 cscs eee ene eens 300
To child of earnings by parent. ........... 000s cece eee eee eee 478
From parent:to childs: 52.0004 --easscawan es ieans pace ee tes 502
(See ADVANCEMENTS)
GOOD FAITH,
Guardian held to highest. ........... cece eee cece ee eee ees 746
GOVERNMENT BONDS,
Guardian may invest IN......... cc cece cece ee ee eee eee 753
GRANDPARENT,
Rights of, in loco parentis..... 2... 6... 473
When child takes domicile of, as natural guardian............. 483
GROSS NEGLECT OF DUTY,
Divorce for scien <6 ess 4A eh ewe Eee ee ea le bee & 384
GUARDIAN,
De son tort or by estoppel........0.. 6c ccc eee eee eee 736
Consent of, to marriage of ward........... 60.6 c cece eee eens 92
For estate of Convict....... 66... ccc eee een nee ene 702
Liable to ward for seduction..........0....0 00. c eee c cece eens 519
Lunatic may sue and defend without, at common law.......... 663
Right of, to avoid infant’s contracts.....................065 559
Right of, to disaffirm infant’s deed...............-. 0c eee ee 582
Wife’s property in hands of, chose in possession............... 167
Conveyance of infant’s lands by...............-.+45. 585, 751, 757

(See GUARDIAN AND WaRrD; GUARDIANSHIP)

46
722 INDEX
(References are to sections]

, GUARDIAN AD LITEM,

Infant defends by.......... 0.2.0... 2s cece eee eee eee eee 618
Powers.and duties'0fo... ss .oase9 sate iesdeeias ded eeyeessnwes 738
Judgment where no... .. 2.2.2... cece eee eee eect eee eens 618

GUARDIAN AND WARD,
Kinds of Guardians; Appointment

In general—Definitions.... . 2.0.22... cece eee eee 722
Kinds :-of guardians’....-:tecsvediepraveeead s eee seoaigs ae eeen 722
Guardians by nature and for nurture.................. 462, 479, 723
Guardians in chivalry..... 0.0.2.0... 0.00 cc cece eee eee 722n
Testamentary guardians..............0.0. 0.00.0 eee eee cee ee 724
How appointed... 2.0... 0... ccc cee nee aee 724, 725
Who may appoint. . ....... 02.2 cere cet e eee teens 724
Who may be appointed ........... 2.0... e eee eee ee eee 724
Judicial guardians................. svigni ieee karan aera Sa REE 726
Same—Chancery guardians..................0 00 ce ee eee cece 726
Same—Probate guardians .................cee eee eee seca 726
Jurisdiction to appoint. 2.2.0... eee cee eee eens 727
Guardian by nomination of infant.................-2.000005 728
Who appointed judicially... ........0.. 2... cece eee eee 729
Same—Non-resident. .. 22.2.0... cece ee eee ee eee epee: eed
Married womens... ..5:2 stains od nacas sod scared wend da GUE on wR 729
Corporations: <<.<acc0. 2nd pcabukly dec eenes ee Se eee eae S 729
Mode of appointment........... 0... cece ee ee eens 731
Qualification—Bond—Oath—Letters of guardianship ......... 731
Nature of Guardian’s Office
In generals 5 ¢x4-suis ox4 doing boxes ei es wk eee rawr ds oes 732
How appointment construed. ......... 2... 0. ccc eee ee cece eee 732
Entitled to possession of ward’s estate ................00ce0e 733
Liability where guardian is also personal representative ......- 734
. Liability of sureties in such cases. ..................c0cceeee 734
Joint guardians .......... 0. eee eee ew et ew ences 735
One guardian for several wards. ........ 62.2... cece en eeeeee 735
QUAST PUAPCIAN 6 ccc tare ied waa M pevigd Hamer eadeey ales 736
Foréiga: Guardian. . 0. 50isane verses sgaie.s 6s awe eso see oees 737
Office strictly local ssclci-cicshew s caavem $24 whe eee oe eSaaalenenn 737
Rights as to custody of ward .................cc ccc eeeeeees 743
Cannot sue outside state of appointment... ................. 737
May he be sued elsewhere?...... 2.2.2.0... cc cece cee ecens 737
Ancillary guardianship... ............ 0c. cece cece ee ceseeeee . 77
Domiciliary guardian. ... 2... 0... 0. c cece ccc eee eeaeace 737
Guardians ad litem... . 2.0.00... ee cc cence c eee cence 738
Powers and duties of. .... 0.0... 0... cece ccc cece cece ee ecees 738
Guardian's Powers over Ward’s Person
Right to custody of ward... 2.0... 00... e cece cece cece eee 739
INDEX 723

{References are to sections]

GUARDIAN AND WARD—continued.

Same—In return for support... 2... 22. 6. scenes 740
No right to sue for injuries to ward............-.....00 0000 74L
Rights as to marriage of ward. ...... 0.0... cee cece ee eee 742
Consent to apprenticeship of ward................00000008 465, 742
Power over ward’s domicile ... 0.0.0.0... 0. cee cece eee eens 743
May not generally change national.. ..................20005 743
May usually change local.............. 0.0.0. cece cece eens 743
Right to discipline ward... . 2.0.00. 0... ccc cece cece eee 744
Duty to maintain and educate ward... ............000 cee eee 745
Should not unnecessarily infringe on corpus of estate for these
PUFPORES) case sci nedccipamne smegma teem Skater mnie wang Oe Bake 745
Guardian's Powers and Duties as to Ward’s Estate
Must exercise good faith, care and prudence................. 746
Collecting and protecting ward’s estate...................05. 747
Actions—Right to sue...... 2.0... eee eee eee ene ee 748
Suable on his own contracts on behalf of ward................ 748
Cannot sue for personal tort to ward unless authorized by statute 748
Must make ward’s estate productive.................0000005 749
Power and duty to lease ward’s Jands.............-..200eeeee 750
To: grant easements)... s12 sowswe news oa yu Cowen wee Care oe 750
Tovassign dower s 6: estates sve dee see eem eds verade te wane aid a 750
To cultivate ward’s lands. ................02 06 ccc eee e eee 750
Investment of ward’s funds in lands..................0e0000s 751
Improvements and repairs............ 2.2.0. e eee eee eee eee 751
Investment of ward’s funds.................20 cece eee eee 752
Time allowed for................... Ses ae hemsacten nay tans Nats . 752
Drab ty fOr Cela ys, i.csaaiszsicnauelaanciad aia elbuenerdaon aaaeeed maa wae 752
Character of investment. ............. 0000 cece eee eeee 753
Government securities... 0.0.0.0... cece cence ee eees 753
Real estate securities............ 00. c cece eee ee eee eee 753
Stocks and bonds of private corporations. ................... 753
Personal saecuritiesy ¢2x00 dhe vee deeo tes dee date midled eee cas 753
Employment in business or speculation...................... 754
Commingling trust funds with own... ..........-.-...04005. 755
Deposit of trust funds in bank... ....... 02... e eee eee eee eee 755
Changing personalty into realty. .......... 0.0.0. e cece eee 756
Guardian’s Power to Convey or Encumber' Ward's Lands or
Chattels—Contracts
No power at common law to convey or encumber ward’s lands.. 757
Can court of equity empower?..........-. 6... e cece eee eee 757
Authority under statutes... 0.0.0.0. 0. e cee cece cece encase 757
Usual steps under statutes..........0 0... e cece cece eee ees 758
Same—Hearing—Bond—Confirmation...................+.... 759
Power to sell personalty.......0-0 0.0 e cece cece ene ences 760

Power of, to arbitrate, compromise or release ward’s claims..., 761
724

INDEX
[References are to sections]

GUARDIAN AND WARD—continued.

Contracts of guardian in eepoety of ward or management of

SCALE igi cd cath cree woes nana ne Sines del ie HSS eae sa Se 762
Guardian and not ward ‘natalie Dotind fsa vit Adadinnsane ed eswkeeees 762
Limiting liability to estate... 0.0.0.0... cece eee 762
Right to indemnity from estate ..... 0.2.00... cece eee eee 762

Remedies Between Guardian and Ward
In generals oi2..0avntdvde tdaneaaeree ae Ganttn nd Seinen de 764
For personal tort by guardian. ................ 0c cece eens 764
Recovery for necessaries furnished by guardian............... 764
Remedy of ward touching estate usually through proceedings for

accounting and suit on guardian’s bond.................... 764
No action lies on bond until accounting had or refused......... 764
Contrary rulings... 5.4063 s0¢8553s8e 324 aSetee andre we veses 764

Duty of Guardian to Account
A BONE Al 5 josh sy tncy yw da SRAM TAR aS Swe? Se ER Rue 8 eae 765
Kinds of accounts. .. 2... 2.620. e eee eee eee 765
Principles of accounting. ............. 0.00. eee 766
Conclusiveness of accounts ............. 22. e cece eee eee eee 767
Accounting to ward out of court...............2...0 0020 eee 768
Presumption of fraud and undue influence therein............ 768
Same—aAs against sureties............. 22... c cece eee eee eee 768
Guardian’s Bonds

INGCERSIEY LOD s 5a and wie ghee S eae Es GRAINS Goal ea AS 731, 769
Power of courts to require. ............. 00. 769
Form and requisites of bond... .............2... 00 cee e eee eee 770
The usual conditions. .............. 00.0 cee eee 770
Trregularity: Wiese 2% eye's oo meld bows nae oe ese yee ea ee 771
Estoppel as to appointment. ........ 0.2.0 eee eee 771
Whit: covered by: 2c c420040 see bees eexses Se HON Yeas chee cue ae 772
Additional and substituted bonds........................... 773
One guardian for several wards. ........... 000.0020 e eee ees 774
Several guardians for same ward................00000 esse ae 774
How far adjudication against guardian conclusive on sureties or

MD CHEM FAVOR: 5 5 ccrccncsearerun se Squasoudienn anne a Bees aieae yin ue dates 775

Liability of guardian on contracts Ol Ward.3 ux acess dasay Ye: 776
Termination of Guardianship
Injgeneral, i: ess05 sine vee mens ts ews cade eee be ewe: 777
Death of guardian or ward .. 0.1.6.6... eee 778
Arrival of ward at full age............. 000. c ccc cece eee eee 779
Election of ward at age of choice.. ..............000.. 000 eee 779
Marriage of guardian or ward..................0 00000 cee eee 780
Resignation of guardian. .............. 0.0.00. ccc cece eee 781
Removal of guardian ................ 0000.00 c cece eee e ee 782
Causes £08 ie veins sea peery ei amen es gains oe ode naw naw bd bee ay 783

Unfitnesss ac o5 9 see drs dea aoe dia ced Sed ns wh Sad a SR A 784
INDEX 725

[References are to sections]

GUARDIAN AND WARD—continued.

Misconduct:<. csctyackes witeeen ech cere catee anes eee eres 785
Effect of termination ..........0 06.00 c cece eee ee 786
Same as to suretiesias osauccecssage+sudtareeese verdes ree 786
Reimbursement of guardian. ................ 0s ee eee eens 787
Compensation of guardian. ......... 0.00: e cence eee eens 787
GUARDIANSHIP,
Effect of, on testamentary capacity............. 2.0. e eee eee 654
Of spen Qthrib ti, sccsie. seeds iomecsen kisoace sua searac sees dane ean dase CRRA 691
Natural, of legitimate child... ............. 0000 eee eens 479
Watural, Of bastard cuca ac sacna seamed enka 14 deren aeninn sae 642
Of habitual drunkards... 1.0.2.2... 0. e ccc aee eee eee 675 et seq.
(See DrunKaRDs)
Of lunatics and idiots: <saniaei senate veeaes sales COMER BEEE 635

(See INsaNE PErRsons)

H
HABEAS CORPUS,
By or on behalf of alleged lunatic............... 0. ccc eeee 534
Spouse may petition in, on behalf of consort............... 115, 149
Wife may have against husband.................. cece eee eees 115
HABITUAL DRUNKARD,
DORE sis: Avan ncassavnses tomcat My Re areas eee wee 673, 674

(See DrunxKarps)

HABITUAL DRUNKENNESS,

As ground for divorce. .......... cc ee cee eee eee ee eee 373, 374
HARBORING,

AACHION Of SPOUSE TOR seis sc cd conasaxa wie scu aed manner weawie 148

ACtiOn Of Parent{OF ss. 5es suai vegeaw ea eee ee ee woe saa a 529

Liability of spouse for, where consort criminal ............... 156
HEAD OF FAMILY,

Under homestead laws... .......... 2. sce cece eee eee eeenees 257
HEALTH,

Conduct impairing, as cruelty. .... 0.0.0.0... cece eee 357, 364
HEAT OF PASSION,

Drunkenness does not change rules as to..............-.--005 687
HEIRS,

Disaffirmance of infant’s deed by...............ccc eee eet eee 582

(See IntecitimatTE Carty; ALIEN)
726 INDEX
[References are to sections]

HOME,
Right to regulate................00ee eee Rec BESS SES HH 118
HOMESTEAD,
Nature and policy of homestead laws...............--.000005 256
General characteristics of........--..... 02. e eee e cece eee 256
Whomiay: havesnc: 2c aici reses coma ans eoeGee heen oheee es Be 257
Occupancy essential to. .... 0. eee eee 258
Abandonment Of-.c cae cas eca duces vieawn xeeeea ye hee 2 oad 258
Nature of use or occupancy. .............. tie ee mgt area Se 259
SelectionyOf ws. 40 kes snes 814 ees Bs eoed ets Dewless sede Heese s 260
Recording claim of ........... hot Laie aa cease EARS eR tee 260
Amount or value of exemption.. ................000 0s sence 261
How far proceeds exempt... .. ......... 222.00 ee cee cee 261
Fee simple in claimant unnecessary. ............-..-2.200005 262
In Jand held jointly or in common.................0-200 000 262
ALGHATION Obici. a tteaceende ae esos s aan aes 263, 264
DOWEL isi cisiaed ca ean tane nes takin Madaee de neg ase ee 263
Curtesy ny ies cet ad eres 2s ee ee Ae es hee edie oe 195
Mode of alienation of..................2200005 ere hw awa eg al 263, 264
Rights of surviving members of family in............-....--- 265
DOvise OF 3305 ssidica scapes FS Senda rtaigan < oe, dlsaeeee waead alank mamaaiere 265
SPYOWA LG is Shale fas tafe ss, Seu. eeSieu 2 Fe hla aut a ese Bontonueee eadausee/ed 265
HOMICIDE,
In unlawful killing of capital convict..................0.005: 708
Drunkenness andes é 6 sai Lo uiscien sauons'e dese easter sueke as J 685, 686
HOTCHPOT,
Defined and explained ................ccceeeeece eee eeeeens 504
(See ADVANCEMENTS)
HOTCHPOT CLAUSE,
Dn Will cicg sew ies Petite Pe Hhalon 2Graiaaea x yess BANE Dk AE Ses 506
HOURS OF LABOR,
Limiting for women ....... 66.0... cece eee cece tenes 2
Limiting for children . 1.2.1.0... . 0. cece cece cece ee 626
HUSBAND,
(See MarriaceE; HusBaNnp AND WIFE)
HUSBAND AND WIFE,
Of the Relation in General
Generally of the personal relations of the spouses. ............. 111
By what law governed........... 0.0... c cee cece cence 111

Common-law theory of coverture

Te ee we we wee ee ewe ete n ane
INDEX 727
[References are to sections]

HUSBAND AND WIFE—continued.

Mutual rights and duties in general............. 2000 eeeeeeee 113
Right of cohabitation and intercourse between................ 114
Return to, as consideration...........0 cece cence ee eee eneee 114
Right of personal control and discipline between............... 115
Where spouse insane... ....... cece eee eee ener n eens 115
Remedy for unlawful constraint, shavavarsWetaiave sheesene oranieta a Ot: 115
Right to fix family residence. ............ 0c ceeeeee eee eeees 117
Effect of relation on citizenship. ............ 20 0e cence ee ee ees 711
Domicile of husband and wife... ....0. 0... cee ee eee eee eee 117
Limitations upon husband’s right to fix matrimonial domicile... 117
Domicile of wife divorced from bed and board ............... 117
Husband’s Duty of Maintenance
Husband’s duty to support wife—In general................. 119
Same—Where spouses live together...............0eeeeeeeee 120
Wife’s agency for necessaries—In general... ...............-. 120
Same—lIn cases of non-support...... 20... cc cecee cece eeeeees 120
When right to support forfeited... ......... 0... c cece neces 122
Separation by mutual consent does not forfeit................ 122
Allowance in lieu of support...... 0.0... 2. cece cece eee eee 122
Husband’s misconduct warranting separation does not. effect
wife’s right to support ............. 20 eee ec ee cere ee eeaee 122
What deemed necessaries for wife ..............0:cceeeeeees 124
Same—Attorney’s fees 2.0... ... cece cece ect e cence eens 125
Miscellaneous remedies of wife for realization of support.. .... 126
Non-support a5 a CTIME.. 1... cece eect e eee enee 126
Necessaries for mistress... ....... 2.2 cece cece cece eeeeteeees 127
Husband's Right to Wife’s Services and Earnings
Husband generally entitled... 2.0.0.0... cece eee cece eens 128
PA CLIOTIS ORs is icoeis dc arssscsyan dy deeentera ausiansl eyalig/Sos tate t ded savaceuadgnd talaga vastus 128
Husband’s gift of wife’s earnings to her.................-.... 128
Wife’s services and earnings-under statutes... .............-. 240
Torts by and Between Spouses
No civil liability for personal torts to one another............. 131
Rule same after divorce as to torts during marriage............ 131
Tort of spouse as to other’s property................ 0s eee eee 131
Husband liable for wife’s antenuptial torts................00. 132
Same—Statutory changes... ...... 00... cece eee eee eee e eee 135
Liability of spouses for wife’s postnuptial torts............... 133
Same—spouses usually jointly liable for wife’s tort............ 133
Presumption of husband’s coercion. ...........-.. 00sec eee es 133
Effect of discoverture on liability for wife’s postnuptial torts.... 134
Statutory changes as to postnuptial torts of wife.............- 135
Torts to Husband and Wife
An general ic: wacsdvkys saw wes ceases h woaes elec namliend mens 136

Torts to husbands s6:.csoc nace gewicons sae winsoes wgeroaciesinsc ene 136
aI
te
we

INDEX
[References are to sections]

HUSBAND AND WIFE—continued.

Injuries to wife in general... .........0.00.0 002 cece ee eee 187, 138
Husband’s sole action for... 2.2.2... 0.00... cece ee eee ees 137
Damages in husband’s sole action.................-.- 137, 139, 140
Joint action by spouses for torts to wife.................--66 139
Husband’s power to release cause of action................005 139
Wife’s right to sue alone under statutes................ 0.20. 140
Torts to wife’s separate property. ...... 0.02.0... 0c eee cece 141
Injuries to the Consortium

Consortium in general .......... 0.2. cece ccc eee eee 142
Wrongs to, in general... 0.2.2.0... cece eens 142
How far spouses on an equal footing as to right to sue for... .143, 144
Criminal conversation... 0.0.0.0. .00 0.00 cee eee 145
May ‘wife sue fore <2 edad fad casceonn cave artes anes Lae Sad ees 145
Defenses to actions for... .......... 2.0 cece ee eee eee eens 146
Theory and form of action for..................0 00 ee eee 145, 147
Alienation of affections of spouse. ...............-..--...00- 148
Enticing, abducting, or harboring spouse..................-- 148
Liability of parents in suits for wrongs to consortium.......... 148
Habeas corpus where spouse unlawfully detained.............- 149
Damages for wrongs to consortium. ....................0005 150
Supplying liquor or drugs to spouse at common law and under

Civil damage acts......... 0. ccc ec cece tet e eee 151
Constitutionality and construction of civil damage acts....... 152
Actions for death of spouse. .......... statins acrate g gaaenmnanele 153
Damages for death of spouse. .. ............00 0c cence cece 154
Conflict of laws as to death by wrongful act.................. 155

Crimes by and Against Spouses

in: general: = ee ses se yagi eke da owe eee GSE Nee ee Pee wav ea geeks 156
Harboring by one spouse of criminal consort................. 156
Husband cannot rape wife.......... 0.00.0. c cece eee eens 156
But may be liable for aiding another in rape.................. 156
Spouses cannot be guilty of conspiring together................ 156
Larceny between spouses. ............-. 0002.2 e eee eeees 156
Arson by one spouse as to property or dwelling of other........ 156
Assaults between unlawful... 2. 2 ............0 00000 c eee e eee 156
Defamation between... 0.0.0... .. 0000 e eee eee 156

Crimes Against Third Persons
Presumption and effect of husband’s coercion where wife is ac-

LOR a ties a0 ach oh tienen ial otk Alger 4 eek ea een rato wea nanos 157

Liability where there is agency, counsel or command........... 157
Relation as Affecting Testimonial Capacity

In general and under particular circumstances............ 158 et seq.

Spouses as witnesses at common law......................... 158

As to access or non-access—Legitimacy................... 165, 459
INDEX 729

{References are to sections]

HUSBAND AND WIFE—continued.

Exceptions as to common-law rules of incapacity...........:.. 158
Same—Crimes against one another. ..............-0eeeeeeeee 158
As witness in case of lost baggage .............. cc eee cece ees 160
As witness where agent for other spouse....................- 161
Effect of death or divorce on testimonial capacity of........... 162
Statutory chanpes...o<.1caqes aime dyadwny goxue beeaoe seaweed 163
Confidential communications.. .. ............ 00sec eens 164, 165
Letters of spouses in actions of crim. con. or for alienation of af-
feCtiONS grouse westiny ta teak bo daa eee tee Mews ee Ee 165

(See WiTNESSES)

Property Rights and Contract Capacity of Spouses at Common Law

Property rights at common law..............0. 000. c cece neces 166
Wife’s personalty in possession becomes husband’s............ 167
What deemed her choses in possession.................... 167, 169
Wife’s choses in action—Husband’s rights in................. 168
What deemed choses in action.................0 0000000 169, 170n
Rights of surviving spouse in..................000 00 cee 170, 186
What constitutes reduction into possession by husband........ 171
Suits to recover wife’s choses in action..................-05. 171
Rights of husband’s creditors in wife’s choses in action......... 172
Wite's' chattels £64). « cccmens naceae dace yatnare ¢ Reed aba aeueg eee 173
Husband’s power to alienate or encumber and survivorship
THEFEIMs corces case: seieey o shgodsiees dcimicate 8 aspatan) a Miesieerer d Hecate 173
Wife’s real estate or frechold’s ..........--.0000000 cece eee 174
Incidents of husband’s estate in wife’s freeholds............... 175
Actions concerning wife’s freeholds....................... 175, 193
Conveyance of wife’s lands.......... ......-..022 ee ee ee 176, 249
Estate by entireties........... 0. 0c eee cee eee tenn eeeees 177
Modern status of the estate... 2.2... 00. e cece es 178
Contracts of Spouses at Common Law
Husband’s contracts. ......... 000. c cece eee e eee ee ee eee 179
Liability of husband on wife’s antenuptial contracts .......... 180
Wife’s postnuptial contracts ................-. 000s eee eee 182
Ratification after discoverture ................22 ee eeee ee eee 182
Wife’s contracts connected with tort. ............... 0200s 183
When wife’s postnuptial contracts valid. .................... 184
Contracts, conveyances and gifts between spouses............ 185
Husband and Wife as Survivors
Rights as survivors in general...................0eeseeeee .. 186
Widow's thirdss.s, actesccsiacicesriunninadenwaced Aerbal uaebingsaeaaves 187
Widow’s quarantine and allowances... ...... .......0.-eeeeee 193
Husband’s share as SUIVIVOF.. «2.66... ee eee es 188
Rights of surviving spouse in equitable separate estate. ....... 189

Wife’s paraphernalia... ........ 060. e ccc eee cent nee ees 190
730

INDEX

[References are to sections]

HUSBAND AND WIFE—continued.

Rights of spouses in ......... 0... cece ee eee eee eee eee ene 190
What constitutes. .......0.0 0.0.00. cece ccc eee eee ae ee seean 191
Effect of statutes on... 2.00.0... eee cece eee eee e tees 192

(See DowrRr; Curresy; HomesteaD)
Wife in Equity—Equitable Separate Estate or Trade

Nature and origin of ......... 0... ccc cece een eee eee eene 220
ING ents: Of ¢ cise a aes eau d sein daie ae See Cae eealoce de 221
AtPUBE C8186. ccc ca hae ew ce Rawinee Died Rae Hew REE OO 222
OWiGCTESLED Ms ashe Sa eoe gies oes Sak a ae ee gens Sep oe 222, 223
Power to charge or alienate...............- eee cece ee eee 224
Intent to charge with debts or contracts..................-. 225
What property chargeable. ........... 2... cece e cere eee ee eee 226
Duration of equitable separate estate ............220e0eee eee 227
How extinguished ............ 0... ccc cece eee tee e eens 227
PUM THOM OY. "since bays bia heed avn Sedat oars lapeelee aim Ovni id. 6: Shanalbces -bviueditaee 228
Wife’s separate trade in equity............. 0... e cee eee eee 229
Wife's Equity to a Settlement
Nature and origin of............. 0. cece cece nce e eee teens 230
Jurisdiction over and property affected............. eee wea 231
Right to, as against husband’s creditor’s.................. 231
Children under wife’s equity to settlement................... 232
Waiver and forfeiture of.............. 0... c eee cece ee eens 232
AMOUN HOL eo Siczeiceeld ssreutrds dine dase Ad & soenadd sole ied gS ioaitues ade eimacoeties 233
As affected by statutes............. 0.0. cece eee eee Debates 234
Spouses under Statutes
History and nature of married women’s acts ................. 235
Constitutionality of..........0 0. cece cc cece ee cece ee eee eens 236
Construction: Of sc. 4 neces es Sue We ba eae £4 MORE Ss BR ve emne Ss 237
Scope of statutes. ......... 0... cece ec cece cece eee eens 238
What statutory separate estate........... 0... cece eee 238, 244
Same—Property acquired after marriage. .................... 239
Whether damages for personal tort are....................005 239
Earnings and profits of separate business or employment....... 240
Registry or schedule of separate estate...................00058 241
Life insurance policies. ............ 0.0 eee eee eee eee eens 242
Contracts of Wife under Statutes
Tn general ss ::ajsis's seinate ses Ates Sears s had ean ad bee Gcc a pale 235, 243
For acquisition of separate property...................... 244, 247
For management and enjoyment of separate property........ 245, 248
‘Wiferas Surety ascii sine cme bate de Gum og see wea'swonsts 251, 252
Wife’s antenuptial debts ...........0.. 0.00. ccc cece cece eee 253
Intent to charge separate estate..................0.0000000, 248
Wife’s liability for family expenses. ...... .................. 255
Her separate trade or employment.......................0.. 254

Contracts of wife void or prohibited by statute................ 252
INDEX 731

{References are to sections]

HUSBAND AND WIFE—continued.
Alienation of Wife’s Statutory Separate Estate

Power of alienation. ............. 0. cece eee eee cece eens 249
Mode of alienation .............0. cc cece cece eect eeeeeee 249
Joinder of husband in wife’s deeds. ................0ceeeeees 249
Defective execution of wife’s deed............. 00. cece eee ees 249
Liability of wife on covenants—estoppel. .... .............-- 250
Mortgage of wife’s separate estate............. 00 cece eee eee 251

(See Conveyance; Dower; Homusreap)

Spouses under the Community System

Nature and origin of community ownership................ 267, 268

What deemed community and what separate estate........... 267

Power to control, manage and alienate. ............-0000e000e 268

Debts chargeable against. ... 2.2.0... ccc cee eee eee 268

Right of survivor under... .......... 2... ccc cece eee eaee 268

Spouses as Parties to Actions

Suits between—Law and equity... ........... 0... cee eee eee 291

How wife represented in her suits..................00000e0es 291

Suits by wife under statutes .......... 2... cece eee eee eee 292

Suits by, against strangers... .... 622... eee eee ee eee eee 293

Actions by strangers against. ....... 2.0.0... 2s cece eee ee eee 294

Husband’s sole action for injuries to wife... ..............0005 293

Process against:. + awassiseasys canes seria ewes Laweney Tew 295

Special circumstances affecting wife’s capacity to sue.......... 296

Under statute of limitations... ............ 2... ccc eee eee eee 297

Judgments against married women—Pleading—Estoppel...... 298

Proof of Ownership by—Estoppel

Evidence of ownership between spouses................+.405 299

Evidence of ownership by one spouse against creditors of other—
Batoppelsss tates sacs yemaesiouat eoe! cataen ieee ee 300

Conflict of laws as to rights and capacities...................- 301

Miscellaneous
Marriage settlements and agreements.................--- 269 et seq.
(See MarriaGe SETTLEMENTS)
Domicile of wife for divorce purposes. ............00e00eee00e 334
(See Domicitze; Divorce)
Separation of spouses... ......... 20.6 e eee ee eee eeeee 317 et seq.
(See Separation; Drvorce)
Spouses as co-partners...........- 06. eee cece eee eens 315 et seq.
(See PARTNERSHIP)
Agency by and between spouses. ............. ese eeeeee 309 et seq.

(See AcEncr)
732 INDEX

[References are to sections]

HUSBAND AND WIFE—continued.
Wills of husband and wife..................0605 a patie gig 302 et seq.
(See. Wins)
Conflict of laws-as to rights. and capacities of spouses..........- 301
(See Conriict or Laws)

I
IDIOCY,
(See Insanity)
IDIOT,
Cannot acquire domicile of choice...............-:ceeeee eens 483
No presumption that congenital deaf-mute is ................ 693
ILLEGALITY,
As affecting contracts to marry ........... 0. esse eee eens 11
Of contracts promotive of separation or divorce . ............ 33
Of contracts restraining marriage.................0ceeeeeeee 31
Of marriage brocage contract ............. 0.0 e eee eee ee eee 32

ILLEGITIMATE CHILD,

Distinguished and status discussed .................0eeeeeee 454
Child of void or voidable marriage.................000000 454, 455
Child born after divorce... ........ 02... cece cee cence nee 455
Child born after father’s death ................: cece e eee eeee 455
Legitimation of bastards, in general. ................202 eee 456
By intermarriage of parents............. 2.02.0. c cence eeeees 456
By acknowledgment of parent. ................00ceeeeeenees 456
Evidence and presumptions of legitimacy ................... 458
Conclusive presumption of older law................ Lo eee §6458
Modern tule jccais ccacibe bk carn haa big keene adv e arsine hae 458
Has no inheritable blood ............... 0... c cece cent e eee 460
Statutory rules as to inheritance by and from................ 460
Support of, at common law. ........ 0... cece cece eee 461
Proceedings to compel father to support. ................... 461
Father’s contract to support ..........0 00... cece eee eee eee 461
Custody and guardianship.................... cece eeeeees 462
Right toimame evs v oa des eas desde ume fae sce seecan-e divieien «yous 462
Domicile and settlement of .........0. 0... ccc cece eee ee eee 462
Cirtizemahip s.g.y e's pete dane destece Socayand’ o oavoeleclaweiemnee Sones 711
Earnings and services ...... 2.0.2... ccc cece ccc e cece eee eeeee 463

ILLICIT COHABITATION,

No presumption of marriage from............0...cccceeceees 107
IMBECILES,
Marriage of .......... wisi eseipinie's: Sinvave\ere gieieveieva eeu sl guanerad oe Qees 52
INDEX 733
[References are to sections]

IMBECILITY,
(See Insanity)

IMPLIED CONTRACT,
Between parent and child or other near relatives as to services

O00 BUPPOME s,s iecce a cauah a dw mde Aneel bea Dee gay cata 474

IMPOTENCY,

As an impediment to marriage.............. 0.0 cece eees 47 et seq.

(See MARRIAGE)

Concealment of, under contract to marry..................4. 14

Of husband in legitimacy cases............0.0.. 0000. c eee ee ee 458
IMPRISONMENT,

As duress avoiding marriage .............000 0 ccc cece eee eee 75

As ground for divorce............... 000s cece eee eee eee 383

Effect of, for life on marriage... ........... 000. cece eee ee eee 383
IMPROVEMENTS,

By husband on wife’s property.............0000.0 ccc eue 247, 289

Guardian’s rights a8 t0...... 0... eee ee eee eens 751
IMPULSE,

Irresistible in crime... 2.0.0.0... ec cece cence cee eeee 660
IMPUTABLE NEGLIGENCE,

Of parent or custodian of child.............. 0.0 cece eee ee eas 606
INCEST,

XS BICTIME s).3 an ee Fs 4 4 ee 0G Ao He BE EY £4 HRD ihe Gund ae 53

Illegitimacy no defense in ............ 0.0 cece cece eee uae 460
INCESTUOUS BASTARD,

Inheritance: Dy? s< 2 sases pene ia ace eh oe ee haRR G58 Renee RS 460
INCOME, ;

Guardian should not exceed ............ 0: ccc cence cee eenae 745

INCORRIGIBLE CHILDREN,
Commitment to special institutions ............6 0.0 c cee e eens 627

INDECENT ASSAULT,

By boy under fourteen ......... 0.0. c cece cece eens 624
Upon female child ............. 00. c cece eee eee 626
INDEMNITY,

Guardian's rightt0 .:.scccss208 sesame cee saw ess sewers naeees 787
734 INDEX
[References are to sections]

INDENTURES,

Of apprenticeship ............... 00. cece eee eee eee teens 589

Rights of apprentice under defective ...........-.-....0-0 005 590

Asmigninent: OF a... cs es.aiewle ss wee nk Geel owe ass estusisea ogee 591
INDIAN MARRIAGE,

Validity Obc3 sich oxic aos eoedian nate aoa a aeeneee 80
INDIANS,

Intermarriage with whites ........... 2... ccc ccc eee eee 57

Status of North American .............. 202200: e creer 720

Are not citizens until naturalization.....................6-- 711, 720
INDIGNITIES,

DivorcetOr as sawdaciwis Hbisees cide te Ee ape betas vo4 384
INDORSEMENT,

BY: INFANG go ec'didars'cyaude) eo edgar soe diakies Sine Scared Mes ete les 578
INEBRIATE ASYLUM,

Power to commit t0............ 0. cece eee ete eee ence eens 675

Treatment in at public expense ...................----200-- 675
INFAMOUS CRIME,

What deemed ise feGenet i caietuientgiset ete mend eae oh 703, 704
INFAMY,

Upon conviction of crime........... 02.00... 698, 701, 703

As disqualifying juror..............0 0.0 cscs eee eee eee eee 705

As disqualifying or discrediting witness.................. 701, 703
INFANTS,

In General

Infant and infancy defined ................. 0000.0 cece eee 538

Who: are infants w60 255 06s cas Sanne fades eg wh 80g Oho Ma banal 538

Status of—In general... .. 2.00... 0000 539

Conflict of laws with respect to .........0.0..0. 00000. c eee eaee 540

Competency to marry . 06.0... ec eee ees 39

Cannot voluntarily change allegiance ....................... 712

Contracts of

In general—Void, voidable or binding. ..................... 541

Contracts of usually voidable, not void. .................... 541

Marriage promise within rule. ...............0.0.0 0 cece seas 9, 10

Contracts binding on infants. ..........0..0 00.0. c cece c eee 542

Same—Contracts authorized by statute. .................. a. 642

Same—Quasi contracts.........0.0.00.00 0 0c c cece eee e eee eeeee 542

Same—Contracts in performance of legal obligation. ......... 543

Same—Execution of a trust. 2.00.00 0 0.0. 543
INDEX 735
[References are to sections}

INFANTS—continued.

Bound by contracts for necessaries ...............0000000eee 545
Liability for, is quasi contractual............0..0c0cece esas 545
Infant liable for reasonable value of ................0.0.c000: 545
Not bound by contract for future supply .................... 545
What deemed necessaries... ........ 0.020 ce cece cee e eee es 546
Same—Functions of court and jury.................-.0.000. 546
Necessaries for, concern the person.................c00sc0ues 547
Contracts of insurance ............. 00. ccc ec ee ee ne ee eee 547
For repairs or improvements................00c cece cece eens 547
Education as a necessary .......... 0c cece cece e cence ene eees 548
Things already supplied not ............ 0.00. cece eee e enue 549
Necessaries a relative term ............. 0000s e cence eeeeeees 550
Articles of ornament or luxury not. . .........2....000. cee 551
Luxurious articles of utility may be. ...............2000 0005 551
Money as & NECESBATY.. 1... ec e eee eect ee eceene 552
Necessaries for family . .......... 0. cece cece cee eeeee ee seees 553
Contracts in trade or business. ........ 6 cee eee e cece eee eee 554
Contracts of infant to render service ............0000e000ee0e 555
Same—As member of family for support .................065 556
Ratification and Avoidance of Infant's Contracts
In general—Time of ..... 0.0... eee e eee e cee eee ence nes 557, 558
Who may ratify or avoid ............ 200 c cece cece enna eee 559
Is knowledge of legal rights by infant essential?.............. 560
What Constitutes Ratification or Avoidance
In: general vices os anawsatnan va peas Saban ew dieh eens ans 561
Contracts wholly executory...........0 0c. c cece cece eee aee 562
Contracts executed by infant alone.....................0055 563
Contracts wholly or partly executed to infant or on both sides... 564
Avoidance where consideration cannot be returned in specie. ... . 565
Must infant account for benefits received . .............00055 566
Consideration for ratification . .......... 20. cece ee eee eee 567
Formal requisites of ratification ................-.. eee eens 568
What language or conduct constitutes. ..................... 569
Conditional undertaking ......... 0.0 cece ccc cece eee 570
Retaining or disposing of consideration after full age as ratifi-
CBLION >; Sea ek Saeed Sees SGU dines Heat re see aie e sealants 571
Other acts amounting to ratification.................-....00. 572
Infant must ratify or avoid in toto ...............-.. 0000 e 573
But may ratify as to part of debt .................0.008- 2. 873
Further as to rescission of infant’s contract ...... eechaenanes 574
Suing for property conveyed a8 ........... cece eee eee eens 574
Conveyance after full age as avoidance of earlier ............. 574
Particular Contracts and Transactions
Infants as partners . 0.2.0... 0 oe cece eee ene nee ... 875

(See PARTNERSHIP)
736

INDEX
[References are to sections]

INFANTS—continued.
As stockholder in corporation..............00 0000 ce eens 576
As affecting submission to arbitration .............-...050005 577
Written securities of infants ........0..... 0.0 cece eee eens 578
Conveyances by and to Infants
Infant’s deed voidable ...........00..00 00. cece cece eee ees 579
When may disaffirm .............. 0.0... e cence eee eee ee eee 580
May avoid as against bona fide purchasers .................. 581
Time of avoidance . ...... 2. eee tenes 582
Who may avoid .. 02... ccc cee teen e nnn eeeee 582
Duty to restore consideration ..........0.....0000 cece eee 583
What constitutes disaffirmance................-.00 eee eeeees 584
Bringing ejectment ................ ie at dae eeeeee exes 584
Inconsistent grant a8... 0.0.6.2... cee cee eee eee 574, 584
How infant’s lands conveyed or encumbered. ..585, 751, 757 et seq.
Conveyance to an infant ......... 0.0... o ccc cece eee 586
Ratification of . 0.0.0.0... ccc ce cent een e nen enees 586
Estoppel of infant through failure to disclose title ............ 587
Torts by Infants
Infant liable for pure tort ............. 0.0 cece eee eee 593
Even where parent or another directs ...................0005 593
Liable for negligence... 0.2.0.6... cece cece eee eee 594
Torts involving malice—Defamation........................ 595
Torts involved or connected with contract................... 596
Negligent performance of contract....................... 596, 599
Fraud of infant in inducing contract ........................ 597
Right of adult to rescind for ................... 0000 cee 597
Infant’s frauds in equity ................ 0. cece eee ee 598
Estoppel of infant by false representations .................. 598
Liability of infant bailee ......................000.20000008 599
Torts of infant’s agents 0.0.0... cece cece cece eee 600
Torts Against Infants
In general—Parents’ right of action distinguished ............ 602
Negligent injuries ..........0 00.00... cece eee eee cence ee 603
Duty of master to instruct or warn minor servant............ 603
Maintaining dangerous agencies attractive to children.......... 604
Contributory negligence of infant. ......................... 605
Imputable negligence ......... 2.0... 0... cece eee eee 606
Agency by and for Infanis—Wills—Infant Witnesses
Infants as principals ...... 0... cece cece 607
Infant’s power of attorney void............................ 607
Infants as agents ..... 2... eect c tence eee 608
Wills: of mfante®.cc gociniior bs Saws Hae een Pkekceaaeee bn ce 609
Capacity to hold office .........0. 0.0... cece eee cece ee 610
INDEX 737
{References are to sections]

INFANTS—continued.
Anfdntstrustees cos cies a0 ee neater erases aeeasmer scenes 611
Tnfantsas witnesses: 4.4 saunas deusseekwesccae ies aaa dw tar 612

(See WITNESSES)
Actions by and Against Infants

TG PEROR ALE ay.sis 5.52 ares ates etig nara acer davhtntana <i maton ea ddeedoan wed tears 615
Infant plaintifie cami ue+ um ante udyee cadianc awmaad Gem see umes 616
Infant not entitled to specific performance . ................. 617
Infant defendants . .......... 0. eee cece eee 618
PROGCGSS ABATE! 5. osc soc.a. siete ios aanguseave aacuaraca he munaiine quo ieaasa.n Fkdunuies 618
Necessity for guardian ad litem ............. 00.0.0 eee ee eee 618
Protection of infant parties ........00 00... 619
Judgments against . 20... 6... eee eee 618, 620
Limitation of actions against... 0.0... .6- 0. cee eee eee 621
Crimes by and Against Infants
Criminal capacity of infants—In general .................... 622
Same—lInfant under seven. .............. 0 eee e eee e eee eee 623
Same—From seven to fourteen . 1.0.0.0... 0c cece eee eee 624
RINE RADE & os. esas inst cxcein cca st Gucci Babi ed svi Putative wanton 624
Presumption of criminal capacity after fourteen.............. 625
Crimes against infants ...........0... 0.00 e eee eres 626
Punishment of Infants—Commitment to Penal and Charitable
Institutions
Infants liable to same punishment as adults ................. 627
Statutory changes ..........0...0 0000 c cece ence eee eee eeaes 627
Commitment to special reformatories or asylums............. 627
Constitutional questions—Jury trial .........0... 02.0. eee 628
Rights of parent and child—Notice ..................--.004 629
Commitment to private or sectarian institutions ............. 630
Miscellaneous
Right of infant to nominate guardian .................0.0005 727
Guardianship of infants..............0-...0 00 cece eee es 722 et seq.
(See GUARDIAN AND Warp)
Marriage of female ward to infant ...............0 0s eee sees 780
Custod 908 one se wanp jad marcas eet Rae wand wanes 479 et seq.
(See Parent AND CHILD; GUARDIAN AND Warp)
Domicile of infants +o: xes224 008504 swe ses san gen Vaawe dees 462, 463
(See Dosiciie)
Apprenticeship of infants.............+...eeeeeee , ++, 588 et seq.

(See APPRENTICESHIP)

INFORMAL MARRIAGE,
(See Marriage)

47
738 INDEX
[References are to sections]

INFORMAL SEPARATIONS,

Between spouses ....... sins Wietie eae @intedsatcacetes sisaceseesvsacce: 818
INHERITANCE,

By convict 2.0.0... e teen e ene c ene e eee nees 702n

By and from adopted child. ........... ce ences cece eee eee 467

By, from or through bastard .............0eeeeee cere eeeeeee 460

By, from or through alien. ... 2.0.0.0... cece eee eee renee eens 714
INJUNCTION,

In aid of wife’s equity to asettlement............2eeee eee eeee 231

To protect wife’s separate property .......+.eeeeee cere cece 141

INQUISITION OF LUNACY,

Nature of 2.000000 cece cece cee e eee e teen recess + O84, 636
As evidence of incompetency to marry.......... secre eeeseee 43

INSANE CRIMINALS,

Confiriement:0f 6 oi sase os coded cae ness Osa Seles cae s SEs ee a 662
INSANITY,
In General—Custody and Control of Insane
Insanity and idiocy defined and distinguished................. 631
Custody and control of insane. ...... 6.6.6.6. e eee eee eee 632
Arrest and detention of alleged pending adjudication of ........ 633
Judicial determination of insanity.....................00-00- 634
Jurisdiction over person and estates of insane..............-.. 635
Inquisition and finding of lunacy ................. Sonpss ec: 636
Effect of judicial finding of ............ 00. e cece eee e cece 636
Conflict of laws as to status of one found insane ...............- 636
Domicile of lunatic ........... 0. eee eee eee eee eee eens 637
Guardianship of lunatics... 2.0.0.0... 0... cece cece cece tween eee 638
Maintenance of lunatics. ......... 0.0 ccc eee eee eee e ence 638
Management of estate of lunatic............ 2... cece ee eee 638
Power to sell lands of insane ward. .......... 00. ee cee eee aee 638
Release of dower of insane wife ............. 0. cece ee eee eee 638
Contracts of Insane
diy genetals os caw aula os cage awsine se hae ea argue wen ss Same 639.
Modern rule—Contracts voidable..............ccceccncceces 640
Binding if made in lucid interval.................0 cece eeeeee 641
Where insanity unknown to other party ................ 00005 642
Ratification and avoidance of contracts.................00005 643
Return of consideration on avoidance ...................000, 643
Contracts of lunatic under guardianship ..................... 644
Same—Conflict of laws ....... 0.0... ccc ccc cece ence eee eens 644
INDEX 739
[References are to sections}

INSANITY—continued.
Conveyances by Insane
Voidable and not void. .... 2... . ccc eee eee eee ete e eee 646
Unless lunatic under guardianship ................2000cee ees 646
Nature and extent of insanity to avoid....................065 646
Conditions of disaffirmance..................0cccee eee eeeee 647
Same—Return of consideration ................000eeeeeeeee 647
Sale of lunatic’s lands under statutes .............--0.0200+ 638, 648
‘Wills of the imsane:s 2.300% caraers saute saad da eeae es RaRee SS 649
(See Wis)
Torts of Insane
Unisane Wable in: tOrts 5 ccs oe ctesean cadena so mvaeis. g aaveyemnie e esinendets 655
Same—Torts involving malice and intent .................... 656
DEAMAON scien +2 areas Grins oa cured weds eA Ee Gare A 656
NGSlIBENGE is cccgececcnagens 4 Hannes Gk ne cataminw s seer ¢ 657
Crimes of Insane
In generals.) 2s sinses uae ses awee 24 a aals ee ease eee eyes 658
Rule in MeN aghten' 6 CSS: snc sstaneey ceties taeead seamed 32 659
Conflicting authorities—lIrresistible impulse. ............ ....- 660
Moral and emotional insanity ............... 0. cece e eee eens 661
Trial and punishment of insane............2-..---ceeeeeeee 662
Confinement of insane criminals.................000eeeeeeee 662

Actions by and Against Insane

May sueiand be ued). der si:4 eesce segues ig eae so deere es tae 663
But cannot sue for divorce. ...........-. 2. eee eee eee eens 664
Process against) «.:.¢ 24 .sce 505 cea sos Saws 8S ENE Yo RATE ee eS 665
Judgments agaist .. 0.00.62 ce bob eee Ras oe SEA eee 666
Evidence of Insanity +
In general—Sanity presumed ..................0.0-e esses 667
Presumption of continuance of insanity...................44. 668
Character of act as evidence of ............. 0c eee e wees 669
Burden of proof as to, in crime............ Perttare Sighsi aus vated 670
Effect of inquisition and finding of lunacy .................... 671
Insane as witnesses... . 0.0.0... cece cece e eee e ee eee 672
Miscellaneous
Insane person cannot acquire domicile of choice............... 483
Cannot change allegiance................060 ccc ee eee eee 712
Capacity of to marry..... 2... .6 062s 42, 52 et seq.
Effect of marriage by .......... 0.0: cece eect ee ee eee ee eee 46
Adultery by, as ground for divorce............ 0650s eeeeeeee 351
Insanity as breaking continuity of desertion.................. 372n.
Divorce for postnuptial insanity............... 0... c cece ee 386
Misconduct during, as cruelty............000 0.02. e eee ees 263

Effect of ward’s on guardian’s power to avoid deed or contract... 559
740 INDEX
[References are to sections]

INSINCERITY,
As bar to divorcee inn sisgecua-ciendsetaeawanunie duces s taco sakes 407
Must involve improper motive.............0ceeeeee eres renee 407
What deemed proper motive.............ccceeesee eect renee 407
INSURANCE,
On infant's: property ais asses Sie Semler rigleniagyererp ate arnasiaies 547
On thfantisilifes« ccc ssmmey sce eee tlewasciadaetiie ae es 547, 556
INTENT,
Drunkenness may preclude criminal......................05. 685
Tihs OPT OL 9 2s ssetsess aiceonsetacacomencatiebsine wate ive atecttaed eeu dneah yeah ved 360
ATASCLESELCIOND tacens casita dcvstigun aires tue vend eretensnane eas teR oraemauna Ned ebab hat 369
Torts of lunatics involving.....................-2---++.- 655, 656
Drunkenness may preclude criminal .................200.00- 685
Insanity may preclude criminal.................--00 essen ee 658
INTEREST,,
Collection of, by husband on wife’s choses in action............ 171
When chargeable on advancement.................-00000005 504
Guardian’s duty to pay on ward’s encumbrances ............... 751
When guardian chargeable with .................00 0000 eee 749, 752
INTOXICATION,

(See Drunxarps; DrunKENNESS; MarrtacE; Divorce; Crvin
Damace Acts)

INVENTORY,

Or schedule of wife’s separate estate.................0000000- 241
INVESTMENT,

Guardian’s duty as to... 2.2.0.0... 0.00 0cccccceeeee cee 749, 752, 753

Character of, by guardian... ...........0 00.00 cece eee eees 753
IRREGULARITY,

In guardian’s bond ............ 0.00. cece cece cece eee eeaees 771
IRRESISTIBLE IMPULSE,

As defense to crime..... 2.0.0.0... 0. ccc ccc cece eee aes 660
ISSUE,

Birth of, to give curtesy initiate............0....ccecccccee 196, 197

(See Wi1s)
J

JOINDER,

Of husband in wife’s conveyances........................, 176, 284

Of spouses in deed of homestead ....................0.0-., 268, 264
INDEX 741

{References are to sections]

JOINDER—continued.
Of wifé'to bardowe? sx. sc nqxacmgus seu araantd eames a ae ¥ 200
Of husband with wife to bar curtesy................00..0005. 201
Of spouses in-suits for wife’s choses in action.................. 171
In suits for wife’s antenuptial debts ......................00. 180
Of spouses in actions for wife’s torts..................00005 132, 133
Of spouses in actions for torts to wife .................5 138, 139, 140
Of husband ‘iin wife’s actions by and against strangers........ 293, 294

JOINT GUARDIANS,

JOINT SURETIES,

Hor gtlardian: wa sais's'seomgas vantdea scares anauta sn emeiaina deweled 773
JOINT TENANCY,
Homestead in lands held in ........... 0... cece cece eee eeee 262
Dower in lands held in .... 2... ieee eee teens 206
JOINTURE,
Nature and kinds) oft. «owes ais uaaus eee ss eee X Lows teens 215
As bar'to'dowefiaiscsss wages aanad so anaasvameedenkanesaaas 215
JUDGMENT,
For wife's choses in action ............0.0. 0. ccc eee eeeeeeeee 171
For injuries to wife 2.2.0... cece eee ee eee 138, 139
For postnuptial tort of wife... 2.2... cece ccc eens 133
For wife’s antenuptial debt ...........0.0.. 0... cece eee 180
In favor of spouses jointly .............. 0... c cece eee 293
Against married woman ................ 00 ccc cece 298
Againstinfant)s.iaexsawels vs cede aalelsa paved Ba eee 218, 220
Collateral attack on divorce. ............ 000s eee e eee eee eens 432
Priority of, as against dower... . 2.0.0.0... c cee ccc eee 208
Right of guardian ad litem to collect ...................0000 738
Against NNAatie? icici. craw to asaraa ye sniea come banered weed x 666
JUNIOR MORTGAGE,
Improper investment for trust fund .................-....0.-- 753
JURISDICTION,
Allegation of facts giving, in divorce..................00eeeee 435
Fraud on; in: divoree:, -:.0.0¢3 02 o923 ences xe eas sx Gaex ee gNees 433
None by consent in divorce ............ 0... e cece eee 338
Over AHMIOMY. 6. occas ta ashes 4 ade aehed Seances antec ciaaeas 409
To grant alimony without divorce ....... je etNeoA Deratenanaes 409
Over Wile!s €GUIYiiic0 sce nanernn eons cada ee rea aaee es 231

Over Ninsti6s: oo eaccuns vaca ss wradcks sale duoineee sameness 635
742 INDEX

{References are to sections}

JURISDICTION—continued.
Over drunkards. cscs cc ceed ek card sce ccna ee aioe 898 He OEE 675
Over infantein ace. Sos es be wencnawaead Sek ecw gs deste 480, 628
To grant GivOLCe: ie o.cc sien s aaisnw 9 Qe wie te yelp gid ereiwrscn Btw renee 331 et seq.
(See Divorce)
JUROR,
Conviction as affecting competency of............eeeee eee ees 705
JURY TRIAL,
Commitment of infant without. .............20. eee eee eee eee 628
In lumacy proceedings. ..............cceeeee scene cee eteeeee 628

JUVENILE ASYLUMS,

Power to Spprentice: 0.55 sacs cr ena cnenea ae wae be eed aie 627

ComMit Ment tO... jsis oa acceded aselde oe SGaers oiwleda cbt 627 et seq.
JUVENILE COURTS,

JUTISAICHONCOL ». 5.64.56 Sandee saan eae Mek es hee oR aa tee 627

MUAY CP AL TN fas 5 aecalse suet -e acacech: a a Sydiee dem huaaus arate cues Hebe adh FR RAS 628

Rights of parentsin........ Sa cat sea oasetlenesd nes Denes Re peel eo OE 629

L

LACHES,

Asibar to divoree...: 2. .ss004 ngee hed taeda s siee sea euls eens os Hs 405
LARCENY,

Betweeh: SPOUSES sis snek isis wees ie ewes RW HG eee whe eran 156

By intoxicated person 20.42 . ccna weed sage ieaa wey gen Same 685
LAW,

Right of women to practice ........ cc cece eee cece ee eee eee 2
LEASE,

Of part of homestead ...........000. 0c eee eee eens 259

Power of guardian tO... 2.0.2... cece cece eee cece eee eeeens 750

Ratification of, by infant... ........... 2... eee ee eee 572, 573

Husband’s rights under wife’s......... 0.00.00 0ce cc ueusaeees 173
LEGACY,

To wife is chose in action ........... 0.0.0... cece eee eee 167, 169

Satisfaction or ademption of, by advancement................. 506
LEGISLATIVE ACT,

Legitimating child.......................5. #eeaw os seas & 456, 457

LEGISLATIVE DIVORCE,
History and validity of.......... rtsis a akaee OURS aude eae 330
INDEX 743
[References are to sections]

LEGITIMACY,
In, generals cic soa nies oeineciwa ter deaiiasearesne iB aivere adie 455
Of issue of slave marriage. .............cc ccc eeeeeeees ieccwa 269
(See IntEqrrmmatp Cait)
LESSEE,
Liability of, of convict labor. ...............0000eeees wsassss 708
LETTERS OF GUARDIANSHIP,
Whether required ..............0.c cece ceeee didn taharacans cia 731
| GRREVOCA LION OF 205 2a cna nav cnsed Soarnara aba ween avere ehoad ae Raabede 782
LICENSE,
Lotrade: withieneM ys xcs csec waeowad avenged oxleuteiaa eam deus 718
LIEN,
Priority of, for purchase money over dower................00 208
Between mechanie’s, and dower.............-cccceeeeeeeeee 208
Priority between, and rights of divorced spouse................ 426
On property conveyed by parent to child for support........... 500
For repairs or improvements against infant’s property ......... 547
LIFE IMPRISONMENT,
As dissolving marriage ......... 0.0... ec eee cece eee ee eeeee 383, 702
As:divesting: property sco.cs sexsexaieiens asa eete ea eden eee 702
LIFE INSURANCE,
Liability of infant on contract of...............0-.2 eee eee 547, 566
As wife’s separate estate. ....... 20... cece cece ee eee eeee 242
Rights of husband’s creditors in ...............-. eee eeeonee 242
LIMITATION OF ACTIONS,
Against infants ie dccuives sew deni ded eedoeiies aoe Ne 621
As affected by coverture.... 0.0.0.0... ccc ccc cece tee eeeeeee 297
For*divorce’ S¢s20¢4 snes Senn d Kean HORROR ORR ROO 406
LIMITED DIVORCE,
Mi ria y 6 Alber cso isch 208s a8 ides atdldietun sea sabineha ula apaaastiras 65
Wife may choose domicile after................ 0.0. ceeeeaee 117
(See Divorce)
LOAN,
From parent to’ childs ¢ sic sscwsssavvesesueeceeavesnea dons 502
Of money to infant: x dacascciecnse ees hae qus eed serwnd Hoeates ¢ 552
Presumption of, by wife to husband... ..............0eeeeeeee 299

(See ADVANCEMENTS)

LOCO PARENTIS,
Rights of those in, to child’s serviced. ..............seeeeeeees 473
744 INDEX
(References are to séctions]

LORD CAMPBELL’S ACT,

Fefrect: Of ye ec iiels-an ghascacs aictie es Mae ocean LOE 2 ewe Canes 153
LORD LYNDHURST’S ACT,
ER GC: OF losses hae tat Ea Se hee bE eae Ie eek weave 56
LUCID INTERVAL,
Contract:-Quring o:.. 5 «icici nately eo seae ob aidiew oa nitde da sew ae -. 641
LUNACY,
(See Insanrry)
M
MAGISTRATE,
Unnecessary to marriage at common law...........------+05 83
MAINTENANCE,
Parent not liable for in upholding child’s auit.................. 487
(See Support)
MAJORITY,
(See INFANTS)
MALICE,
Drunkenness and.......... Biase Gpaslars sravenous i maeneleaen lew aah anere 685
Antinfant!s torte. <sicscueerc nee sod osaaca ncaa ceases ceamas 595
Torts of lunatics involving. .............0000 2 cece eee eeeee 655, 656
MALICIOUS DESERTION,
Un divorcee je ee sa aie s pee OHS RISS PR ative Se Ries Cee e ndelae 366
MALICIOUS PROSECUTION,
Lunacy proceeding a8... 1.2.10... cece cece cece eee e tenance 632
MANDAMUS,
To compel admission to public schools....................05. 531
MANDATORY,
When marriage statute is... 0.0... cee cece cece eee eee 87
MANSLAUGHTER,
Drunkenness-and...... 00.2... 026. e eee cece e eee 685, 686
Parent may be guilty of, where punishment excessive .......... 484

MARITAL RIGHTS,
Denial or abuse of, as cruelty. ....... 0.0.0. ccc eee cece eee 358
(See Huspanp anp Wire)
INDEX 745
(References are to sections]
MARRIAGE,
In General
Transactions affecting freedom and security of....... 31, 32, 33, 319
Definition and nature of .. 2000... ccc eee eee 34
Involves statis: ». «2 sas cen eg se ees dey ee ea ey Se 34
Police power a8't0. a .ados paises pes dae cede es ase aaciate es 34
Void ‘and: voidablésc cccxeees xs 2554 needs i oeewess wee ee4 ame 35, 36
Elements of
MDh ORO DS aise ads osieus Fi  eagin dh -9.4 cavoutcd. dd ovapaaalereeendoerre: e sabnaar es 38
Parties in: eneral;- ics. cia: acmmedanetets ea dew ak Mees keds . 38
By Infants
Infants'as parties tO. 04.6. ciwee sg cas eas esaed ie sooo s wea 39, 40
Effect of marriage under age of consent................000005 41
Mental Capacity
Wat PeMERAl sz ssasess (oe satel ns Gaede cae Meee tak eee eames 82
Evidence of mental capacity for..............000eee eee eee 43, 45
Impotency
Physical capacity for—Impotency...................0 eee 47, 48
Effectiof impotency:. ses cevagss cee ke eo ee eit bees ae eS 47
Must have existed at time of marriage to affect it.............. 48
Must bepermanent. : 4452 asec sia ces neune ds tee cee a enes 48
Forms of impotency.... 1... 2.0.0... cece eee ec eee eee eeeee 48
Refusal of sexual intercourse is not... .... dined ERS ek Reem a 48
Who may have marriage anulled for... .............-...505- 49
VION CE: OF ssie seis yea oe peau neo season Ais Wanead BER ENA ee RS eeaE os 51

Statutory disqualification of insane, paupers, feeble-minded, etc. 52
Relationship as Impeding

In general :s.ccc:gu vegied aca der kde core ged edie yee aha sS 53
The prohibited degrees—Affinity and consanguinity........... 54
Relatives of the half blood... .... 2.0.2... 0... ccc e eee eee eee 56
The deceased wife’s sister rule .............. 0.002 cece eee 54
Affinitive relationship in America................0..0-0 eee 55
Effect of marriage within prohibited degrees.................. 56
Difference of Race as an Impediment
Phe statutes. cicex cesses 8 exter e a WAG Gig neces se Hoesen ere Ges’ 57
Constitutionality. 2.0.0.0... 0. cece cece eee nees 58
Effect of forbidden marriage. ...........-.0. 00 eee eee eens 58
Prior Marriage
Bigamous marriage void... ..... 6.06.66 6 cece eee cee eens 60, 63
Collateral results of its nullity...... 0.0... 6. cece cece eee eee 61
Status of parties after first marriage dissolved. ................ 62
Peculiar statutes. ...000.0 0... ee eens 61n
Impediments Following Divorce
After void or voidable divorce. ................ 0.0 e seven eee 64

After limited divorce or decree nisi..............0 0c eee eee eee 65
746

INDEX
{References are to sections]

MARRIAGE—continued.
Impediments following absolute divorce. . ...........--.+-505 66
During time for appeal. . ...... 2.2... eee eee eee eee 67
As Affected by Fraud, Mistake and Duress
Effect of fraud on marriage—In general............ Jaan town 68
What misrepresentations or concealments will vitiate.......... 69
Same—Prior marriage, unchastity or pregnancy.............- 70
Same—D isease isis. 3 yccagig acd. aaa ok abe tetas ca gia a auayer ear’ ane 71
Mistake as avoiding ............. 00. c cece eee eee eens 72
Duress as affecting—In general................... 00 eevee eee 73
From whom must proceed. .............00 000 c cece eee eens 74
Actual or threatened arrest or prosecution as...............- 75, 76
Consent and Solemnization
Consent: is essential. coi p-sesiance. Soe de Gage Meme ane 78
Parties must mean marriage................. 0.0 cece ee eee 79
Must not intend polygamous union....................-22085 80
Same—Indian and Mormon marriages. .......... 20-0 0eee 80
Where one or both parties in jest—Mock marriage............ 82
Informal Celebration
How far formal celebration necessary..................-00-- 83
History of informal marriage........ 2.2.0.0... eee ee eee ee [. «84
Same, in the United States ............. 0.0... cc eee eee 84
Statutory changes... 0.0.0.0... ccc cece ee eens 84, 86
How marriage statutes construed.............0.. 0000 cee aes 87
General doctrine of informal marriage... ...... ..........00. 88
Consent per verba de prwsenti... 2... 0.0... 0c cece ee eee 89
Consent per verba de futuro... ............. 0. cece eee eee 90
Formal Celebration
Int woneraliens eras Fe caeslataalec Ga he haan aee eee das aees 87,91
Steps precedent to ceremony—License, consent of parents, etc... 92
The celebrant: 5.5.50. 4ca man ea vaunsoera abe stan ns Sea es kee EE 93
Other formalities. . 0.0.0.0... ccc cece cece ec ee eee eeecene 94
Curative 8608 isis sehen iania ciel ees gpeee gawios ose Raeee side «eae 94
Foreign marriage—Conflict of laws..................000. 95 et seq.
(See Conrticr or Laws)
Proof: of Marriages ésccce4 ose sce eos eae pea eeaen enae ee 103 et seq.
(See Evipencr; PrResuMPTIONs)
As affecting testimonial capacity... .............ccc cece eeee 158
(See WITNESSES)
Miscellaneous
Marriage as a consideration... ...... 0.0.0.6... cece ce eee eee 270
Effect of, by female defendant......................000 000, 298

Effect of, on wills of spouses... ................ ccc cece 302 et seq.
INDEX 747

{References are to sections]

MARRIAGE—continued.
As revocation of agency. ... 22.22... 2c eee e nee e eee eee eeens 314
Effect of partners on partnership. ............0-.-eseeeeee 315, 316
Pleading in Givoreéies. i237 ga as ade gaa gees sarees EET ees oe 435
Proof ‘of sincdivoree) ass % sre 2.4 ae yes Bow tac WRe ove eae es 440
Effect of parents, on legitimacy of child already born........ 456, 457
As emancipating minor. ............. 0. .c cece cece teen eens 476, 483
Effect on citizenship. . ............... 000 ce cece eee eee Seeek 711
As terminating guardianship. ................000 cece eee eeee 780
Sentence for life as dissolution of..... ..........00ceeeeeeeee 702

MARRIAGE ARTICLES,
Naturetand! effects cae: < sok $s gees eeaetes samaceS saben oes 274

(See Marriace SETTLEMENTS)

MARRIAGE BROCAGE,

Nature and legality of ...... 06... cece cece cece eee e eee eens 31
MARRIAGE IN FACT,
Meaning and proof Of........... 0. ccc ece cece eee eee eeeees 108
MARRIAGE SETTLEMENTS,
Definition, nature and kinds. ................- cece cece ee 269
Cannot affect personal relations of spouses............-...00: 269
Antenuptial Settlements
Consideration for...... 0... cece cece eect eee eens 269, 270
Who deemed within marriage consideration under... ......... 270
Marriage as consideration for, as against creditors and purchasers 270
When enforced in favor of volunteers ............--.00e0000: 270
Failure of consideration for. . ............ cece cect ce enees 271
Under statute of frauds... 2.2... cece eee eee eee eee 272, 273
Part performance of oral contract for.... ..............00005 273
Reduction to writing of agreement for, after marriage......... 273
Recording so 244 tial ps set 2k Gua d Aalst eae amine Abo 274
Constriiction: «¢as0 3. oesgt seeder awe at nee ahanieedaois 274
Form, necessity for trustee... . 6.66... cece eee eee eee eee 275
Fraudinter parties. 64 syne. uae oss weg se oeeee ss eae eee 276
Fraud upon conjugal rights in... . 2.02.2... eee eee eee 277
Fraud upon creditors in. . 2.2.1... cece cece cece ee 278
Property affected— Dower. .......... 2.0: cence cect ee eenees 279
Rescission and forfeiture. ..... 0.0... ec ccc cee ee eee eee eens 280
May affect alimony... ...... - 1... cece cence eee cence ee ee ees 280
Effect of misconduct on... .........5 0. eee cece tence ee eee 280
Postnuptial Settlements
Consideration for... .....2 0.62 cece eee eee neces ete eeeeen 281
Validity as between the parties. ......... .e eee e cece e cence 282

Conveyances directly between spouses................ 282, 288, 284
748 INDEX
(References are to sections]

MARRIAGE SETTLEMENTS—continued.

Presumption of fraud between spouses in. .........600 00.0 aes 285
Concealed adultery of wife as fraud‘ upon postnuptial settlement. 285
Effect of subsequent desertion.................2 cece eee eee 285n
Validity as to creditors of settlor... ......... 2.2.2. e eee eee 286
Validity as to subsequent purchasers... ...... ....... 0.0005 286
Creditors under statute 13 Hlizabeth....................006. 287
In settlements by third persons...... 00.2.2... 0.0: cece ee eee 288
Fraud upon subsequent creditors. . ............ 00000 e eee eae 289
Settlement of exempt property. ................050 20 eee eee 289
Of husband’s services as against creditors................... 289
Improvements by husband upon wife’s property............. 289
Miscellaneous
Conflict of laws a8 tO... 6... eee eens 301
As a means of creating equitable separate estate........ ..... 222
May bar Curtesy. «2 24 ae caaca rere nee eoaead Wwe ie deena 201

(See JorInTURE)

MARRIED WOMEN,
As guardians: .o.ccesceaigu tes SUSE 2e4 OSes a OES Se Hee as Gees 729
Cannot voluntarily change allegiance...... ...........000005 712
Testamentary capacity of infant wives................00000 609

(See HusBanp aND WIFE)

MARRIED WOMEN’S ACTS,
History and nature of.. 0.0.2.0... cee e ee eens 235
(See HusBaNnD AND WIFE)

MASTER AND SERVANT,

Not a domestic relation or status.................0c ccc ceeee 1
Duty of master to warn and instruct minor servant....... .... 603
Liability for excessive chastisement of minor servant or appren-

HCE Ac naw waadmeetals occ cane Gog wee Gerson Sea tere artausinn 484
Rights of, as against infant servant. ................0.000005 556
When master guilty of harboring child.. ......... ........... 529

(See APPRENTICESHIP)

McNAGHTEN’S CASE,

ROS It ind aiennds A eailas Pe idiela Riaah dete oe 2 wren tau Buty g 659
MECHANIC’S LIEN,

On wife’s separate estate... 0.6... cece eee eee 247

Priority of dower over...... 0.0... cece cece e cece eens 208

Upon infant’s property... 2... 6... k cece eee cece ee ence 547

MEDICAL EXAMINATION,
In cases of: alleged impotency............. 0... cece cece eee 51
INDEX 749

[References are to sections]

MEDICAL EXPENSES,

In action for tort to child. ..... 0... ccc ccc cece eee nee 510
MENTAL SUFFERING,

In breach of promise... ........ 0 ieee cece eee eens 27

Infliction of, as cruelty... 2.6... 2. cee ce eee 356, 357

Iniseductions.«: ose 4s sao arse 2 ce in ed RE eb ON Sete 527

Not considered in actions for death by wrongful act........... 154
MESNE PROFITS,

Right of infant grantor to. . 22... cee ccc ee eee ene 580
MILITARY SERVICES,

Child’s pay, ete., in. ............ J*Haeeieewne as Eoin adien te 469
MINORS,

(See Inrancy)

MISCEGENATION,

Statiites agamst: on<cascarcahen pdawgeveus dev ed saue irene 2 57

(See MarriaGE; Conruiict or Laws)

MISCONDUCT,

Effect on antenuptial settlement.... ........... 0.000000 eee 280

Removal of guardian for.......... 2. ccc cece cece eee 784, 785
MISDEMEANOR,

Effect of, conviction Of. ......... 0... cece cece ee ee eee eens 698
MISREPRESENTATION,

(See Fraup)

MISTAKE,

As affecting contract to MaITy.... 6.6.6.6. eee eee 15

As affecting marriage........ 2.0... cece eee nee e eens 72

Effect of, upon marriage...... 2.6666 77

In a married woman’s deed. ..........-.-..0 ce secre eee eens 249

TSnof Celis svainiy-t 4 Ree OA a ee tials de BRS Shee oes 652

Void marriage under, as adultery..................0..000008 352
MISTRESS,

Liability for necessaries for... 2.0.0... 06sec cece cece eee eens 126

MITIGATION OF DAMAGES,
(See DamaaeEs)

MOCK MARRIAGE,

Void if neither party intends marriage.............6...0seeee 82
May be valid where one party intends marriage.............4- 82
750 INDEX

[References are to sections]

MONEY,
Liability of husband to one supplying wife with.............++ 121
MORAL INSANITY,
As defense to crime sess: isa sas Gere de see cdaee Cee wees a eas 661
MORMON MARRIAGE,
Whether valid: iso cdisecscos ida ud ecueiane dhanisce dieeend thi Saved BA eM 80
MORTGAGE,
As disaffirmance of infant’s deed .......... 0... ess ceeceeenes 584
By husband, of wife’s choses in action.... ......-..cseeaeees 171
By married womad.. ........... 5... cece eee neces eeeneeeeas 251
Infant cannot avoid purchase money and retain property..... . 573
Of husband’s exempt chattels... .......... 0... e eee e eee eee 266
Of ward’s lands by guardian... .. ......... 0... eee scenes 757 et seq.
(See GuarpIaAN AND Warp)
Priority between and dower.... .......-....00 see eee ee eeeee 207
Rule as to purchase money mortgages... ...... 00.6.0... eee ee 208
When wife should be made party in foreclosure............... 119
Guardian’s investment in... 1.2... te eee eee 753
MOTHER,
Inheritance between, and bastard child..................... 460
Preference for, as guardian. ...........0.. 00 cece een ee ences 724, 730
Right to sue for torts of child. .......... 2... cece cece eee 513
(See Parent anp CHILD; ILuEGiTIMaTe CHILD)
MOTIVE,
In changing domicile in divorce cases...... ...... 220 ete dress 337
MULATTOES,
Marriage of, with whites. ..... 2... sc cece cece cece eee eees 57
MURDER,
Attempt to, as cruelty... 06. cece eee eee eee 364
Liability of parent for, in cases of excessive punishment........ 484
Drunkenness as affecting degree of.................0000 00d 685, 686
MUTUALITY,
Necessary to contract to marry............. Satara saws - 17
N
NAME,
Right to confer family... 2.0.0.0... ccc cece eee asec sein 116°

OP DAStATT 5 isn sc dioviswaw nee deol sa Geren aad loe Sew ead cae oad 460, 462
INDEX 751

(References are to sections]

. NATURAL GUARDIANS,

WG BT Ol scart Set cusn de cea an ANDAs, alu Pe Osta a eae 723
NATURALIZATION,
Dehn? on... vgs BA Cae eae Gat mae Ne hours ee eee at 710, 711
Exclusive power of Congress over. .........2..2000eeccceeeee 711
Federal legislation as to... ....... 2.0... cece cece cence eeees 711
Confirms title of alien to lands................. 00 cece evacuees 714
NECESSARIES, —
Drunkard bound for... 2.2.0.6... cece cence eee cece eens 679
Por linatie..< 3 casnecs esse eke ees oe oes ve ae Bee 638
Hor Spend thrifts. vec a dace aly nist aos eines Stee aoe eens 691
Guardian’s remedy for, against ward..............2000s0000s 764
Infant’s contracts for........... ccc eee e nese ee ceeenes 545 et seq.
(See Inrancy)
Lunatic’s contracts for... 2... 6... cece cece cece wees 644
Concern both person and estate of lunatic... ................. 644
One who wrongfully harbors wife cannot recover for.......... 148
Wife’s statutory liability for family. .................... woe. 255
(See ParENT anp CuiLp; Suprort; Huspanp aNnp WIFE)
NE EXEAT,
Ath CIV OTCEH 2epshie 2 doc scach's chase alae eae aaawe BS aphesdnc el Oe ae anaes Se 427
NEGLECTED CHILDREN,
Commitment to special institutions...................- 627 et seq.
NEGLECT TO PROVIDE,
As ground for divorce... 2. 22.0... 6.0 cece seen e cee ee eee 375, 376
Effect of, on wife’s capacity to SUC........... cece cece eee ees 296
NEGLIGENCE,
May constitute connivance. .. 1.1.00... cece cece eee eee eene 397
Affecting Mfants seco. een adams yer eA de eau ees eee 603 et seq.
(See Inrancy)
Imputable of parent or custodian..................0 eee scene 606
Of the insane’. i. jc eee yes xcee see aed bso aeN yt Se ees 657
Of blind maker of negotiable instrument .................... 697
Of drunken persons..........0 00.62 c cece e eee e eect eee eee 683
Of guardian in managing ward’s estate. ............-.0.-.00. 746
Ofinfantass cacuseeungs eters ton? y.aaeeea med ees MEE ee wR 594
Of infant in performance of contract... ........ ......-6 596, 599
Of infant Dailee: «2.224 ase iessenidc ten abanes Be tts Ree eS 599
Of parent as defense in action for seduction of child........... 526
Of parent as mitigating his damages for seduction ............ 528
Of parent in intrusting child with dangerous agencies ......... 508

Guardian liable for losses through... ......< Pe Oa een me 766
752 INDEX

[References are to sections]

NEGOTIABLE INSTRUMENT,

Executed while drunk... .........0... 0.00 e cence cece ences 681

Made or endorsed by infant... ...... 0.0... e cece cece ener 578

Fraud in execution—Blindness..............-.0-ee eer sees 697
NEGROES,

Marriage of, with whites ............ 0000 e eee cece ences 57

Establishment of separate schools for... ........----eeeerees 531
NEXT FRIEND,

Infant must sue by guardian or .........-.--5 eee eee eee renee 616

Lunatic can sue without... 2... 000... 6. 663

When wife must sue by...... 0... cece cece eects 291
NON-ACCESS,

Presumption against husband’s in legitimacy cases..:........ 458

Spouse incompetent as to... 2.60. 6c eee cece cee eee teens 165
NON COMPOS MENTIS,

Emancipation of child who is, on reaching majority........... 476

(See Insanity)

NON-RESIDENT,

Not usually appointed guardian. ................. 0. eee ee eee 729
NON-SUPPORT,
As ground for divorce........... 0.000. e ee ce cee eee eee 375, 376
Of child under criminal law............... 00.0. e eee cence ee 490
Of wife as criminal offense... ............ 2. 0c eee eee eee eee 126
NOTICE,
Effect on husband’s liability to support wife... .............. 123
Necessity for, in divorce... ...... 0... eee cece eee eee 347
Of proceedings for commitment of child.. ................... 629
To parents in adoption proceedings...................00 0005 465
To sureties of settlement of guardian’s accounts.............. 775
NUISANCE,
Ontinfant’s Landen. cso sa ies anes ba gue eld madara peel a Awe aed 593
NULLITY OF MARRIAGE,
Under the common and ecclesiastical law................... 45n
May be decreed for fraud, error or duress.................04. V7
Alimony in suits for 0.0... 6... eee eee ee eee 411
Compensation to woman after ..... 2.2.0.0... 000000 cece 311
Distinguished from divorce... ..........0 0.000 cee cece eens 328
Confusion as to, and divorce............... 0000 cece eee 329
Property rights after decree of...... 2 ..........0000 0c eee 328

Right of woman to recover for services after... ..........00005 328
INDEX 753

{References are to sections]

NURTURE,

Guardians [OF 524.354.2025 cencsey tasers seue ede tant es Seb pinees 723

oO

OATH,

Capacity of infant to understand nature of..............555-. 612

Of guardian: 5) setees cies 627 se ios Hees Wate LEER Os Webi saat 731
OBLIGATION OF CONTRACTS,

Legislative divorce and. . 2.0.0... 6. cece eee eee e eee eens 230
OBSCENE LANGUAGE,

May constitute cruelty... ...... .......4. Sa Gias tet wets eg 360
OFFICE,

Capacity of infant to hold... ......... 2. cece eee eee eee nees 610

Conviction of crime as disqualifying for... ............-..06 705
OFFICE FOUND,

Alien purchaser may hold until... 00.00. 0... cece ee eee eee 715

Necessity for, as against convict... ............eeeeeeeeee 699, 701
OPERATION OF LAW,

Alien cannot take interest in real property by................ 714
OPIUM,

Excessive use of, as drunkenness .......... yoeleee sae Seas omen 675

ORAL AGREEMENTS,
(See Srature or Fraups)

ORPHAN ASYLUMS,

Power of, to apprentice........ cc. eee cece eens wee eeeeenees 588n.
OUTLAWRY,

Nature: Of. ciash ona alan 024 HR Es MRR SERS eae Yee Se +e 698
OWNERSHIP,

Presumption of wife’s as against husbands and his creditor’s.... 300

P
PARAMOUR,
Competent for or against particeps criminis.................. 158
When wife’s guilty of larceny from husband.................. 156
Liability for necessaries supplied to. ........ 0... ese eeeeene 127

48
754 INDEX

{References are to sections]

PARAPHERNALIA,
Nature of .. .cecccn-v reamed eas Gea ¥s «Siegen couse dd Beige Gielen 190
Rights of spouses in ............... Kiee os Bees Thee Se SRR EOS 190
What deemed. c.cccc ccs cic ce cuatcas sec acccore 9 eo taDE eG tem oe GES 192
Effect of statutes OM... 0.0... . cece eee e cece eee eee ene neeee 192
PARDON,
Effect of, in general... 2... 6... cece cece eee eee e ene 706
PARENS PATRIA,
The crown or state a8........ cee cece eee ee erences 627, 628
PARENT,
Child’s contract to support... 0.2.2... cece eee eee eee 500
Wishes of, as to selection of guardian..........-..---.++++5- 730
Consent of, to child’s marriage. ............0-- 2s rete eee eeee 92
Right to be appointed guardian of estate..........-+-+++eeeee 730
When liable to child’s husband for harboring...............+. 148
(See PaRENT AND CHILD)
PARENT AND CHILD,
3 In General
Relation cf, defined and in general... ...... .. sees eee e ee eeee 453
Adoption of child... 22.0.0... cc cece eee eee e teen ences 464 et seq.
(See ADOPTION)
Legitimacy of child. ..... 6.0.6... cece eee cence ere eee 454 et seq.
(See InLEcITIMATE CHILD)
Child in ventre sa mere... ........ cece ee eee eee tent eees 453
Relation of, as affecting citizenship. ...............eeeeeeeee 711
Child's. Property, Earnings and Services
Rights in child’s general property ..... sacdhdes oa Raa sahwlate o.xataee 469
What deemed general property... 6.2... cc cece eee eee eee eee 469
Services and earnings of child belong to parent............... 470
Rights: of mother... cscwccanacaswvaeie esas soca wae w eens 470
Rights of parent’s creditors ...... 2... ccc ee eee eee eee eee 471
Payment of child’s-earnings. . .......... 0.0. eee cece ee eee eee 472
Rights of persons in loco parentis......... 0.2.0.2... . eee eee 473
Same—One undertaking support in exchange for services. ..... 473
Presumption where child. of age................- ee eee cece 474
Emancipation of Child
Natuirenatid! eiettis. sca cicsiias coed casas ovens Bee badness 475
"How affected yi. sasycesweneatuoga denote sae eraaes et 475 et seq.
By operation: of law: «4.4 suas va wise bos Rem ee HERES Soe e wae os 476
Same—Child reaching full age ............. 0.0.0 cece cece eee 476
Same—Where child non compos mentis...................0.. 476
Same—By marriage... 0.0.0.0... ccc ccc ccc ee ee ee eeeee 476
INDEX 755
[References are to sections]

PARENT AND CHILD—continued.

Same—By enlistment.................-. wears a RAR 476
Same—By abandonment of child.. ................20eeee eee 476
Emancipation by contract. ........0.. 00 cece eee eee eee 477
Rights of parents’ creditors............. cece eee eee 477, 478
Custody of Legitimate Child
Custody, in general. .<. 504 ¢.4504 pecs ee deere esa nennss an 479
Primary right of father... 2.2.0... 00. fcc cee eee 479
Right of mother. ..... Gea este Missense a Paar Ae) cece ea 479
Modern chancery rules............ 00.0 c cece eee eee eee eee 480
Best interests of child leading criterion...................... 480
But parent entitled to custody unless unfit................... 480
What constitutes unfitness in parent..................22040- 480
Contracts as to custody. . 0... 2.6... cece e eee 481
Domicile of Legitimate Child
In general that of father.......... 00... e cece eee eee 483
Or of widowed mother ..........-...0 2s ee ee eee eee nen eee 483
Where mother remarries.............- ce eee eee eee eee 483
Where parents divorced............ 00.00 ce eeeeee cece eeene 483
Where father abandons child... ..............0. cece eee eee ee 483
Child cannot during infancy have domicile of choice........... 483
Effect of child’s marriage............... 0.0 ee eee eee ee eee 483
Child at full age may acquire new domicile... ............... 483
Same—Where child non compos mentis..................000. 483
Parental Right of Control and Discipline
Tne PENSP Al 203 wae cael se Gaul dam gale He ike Ge eee aeehan 484
Liable criminally for abuse of right... ................-000-. 484
Butenot: civilly: ones seas dee hek es eeeeee iene ds womeeseeede 484
Limits of parental right of discipline. ....................... 485
Education of Child
Parental right to control ....... 0.0.0.0 c cece cece eee 486
Same—religious training .................0. 00sec ee eee eee 486
Parental Duty to Protect Child
Duty of parent to protect child .............. 0.0: eee e eee 487
May justify assault in defense of... .............- 0c eee eee 487
May uphold child in litigation ..................6s esses e eee 487
Parental Duty of Support
In General isa akke caval oe aiety bake shea see Rees neN eres 488
Imperfect at common law ............ 0 eee e eee e eee eens 488
Parental right to reimbursement for ..................000005 488
Under contract after child of age.. .............0 0c eee ee eee 488
Under statutes: e+ ois non. ees 224 Reus cata das Pita a wine ca Pe 489
Criminal liability for non-support of child ................... 490

Liability of parent under contract or agency,................ 491
756 INDEX

[References are to sections]

PARENT AND CHILD—continued.

Ratification of child’s purchases. ......... Shiu nle BGA ea wR EH 491
Presumption that parent performs duty..............--.- 491, 549
Implied contract or ratification... 2.0.0... 00.6.0 eee eee ee 491
Where child away from home... ........ 0.22... c cece eens 492
Liability on quasi contract........ .. 0... cece eee 492
What deemed necessaries........ 2.2... cece eee eee eee 493
Not liable for adult child’s save on Epona contract........... 493
Liability of mother or stepfather .......:.. beside rude Teste eee Ge 494
Allowing for, out of child’s estate............... gration aueaautete 495
Support of children pending and after divorce... ............ 452
(See Drvorce)
Duty of parent to educate child............. 0.00. cece eee eee 497
Duty of parent to bury child........ 0.20.2... eee eee eee 498
Duty of child to support parent. .........0..... 00. ee eee ees 498
Contracts of child to support parent... ................00005- 500

Contracts, Gifts and Conveyances Between

General rules as to dealings between.............---.2---265 501
Gifts, loans and advancements between... ..............-..-- 502

(See ADVANCEMENTS)

Relation of as Affecting Tort Liability

Not liable to one another for personal torts. ................. 507
Parent may be liable for injuries to child’s property.... ...... 507
Liability of parent for torts of child.............. ...-....-. 508
Intrusting child with dangerous agencies. .................... 508.
Liability of third person for torts to child...... ............. 509
Separate action by parent... ............ 200 c cece eee eee 509
Separate action by child... ...... ......0.0......0..0 00000. 509
May be barred by negligence ............... 0.00000 c cee 509
Theory of parent’s action... .......... 0.2 ee eee eee ee ee 510, 522
What constitutes loss of service giving..................... 510, 523
attire Of INjULY 32.22 snes sae 88 Sagas dela bak Gah wales $ 511
Nature and extent of service. . 2.2.0.0... 0... cece eee eee 512, 523
WhO May BUCK. joss ee nce da aeanicannetwd anceie ew wae awe 513
Dhe damages’. oi s.d-24: aed since e Gees wede sad Suissa Rew ees 514
Prospective damage... ..... 2... cece eee e eee eens eee eee 514
Death of child by wrongful act... 2.02.00... 0... cece eee 515
Damages £08 «<2 wisis ss ddd vs psi 00 Ae Fea Bless bau ca Rane ee 516
Seduction of female child.......... 2.0.0... ..c..ce uae 517 et seq

(See Sepuction)

Parent’s action for abducting, enticing or harboring child... ... 529
Damages 10? s5 4063.5 se eee PAST ee ROH wal a huey hed we RE aeA 529
INDEX 757
[References are to sections]

PARLIAMENT,
Divorce by act of sacs cg sg iis dice viansan ness vaaesowon¥er’ 330
Can legitimate bastard.......... Ayn Re montneiete seat eobed aie 455, 456, 457

PARTIAL DELUSION,
(See Detusion)

PARTICEPS CRIMINIS,
Right to be heard in divorce ....... ileru ha take ae alain Cue ee 437

PARTIES TO ACTIONS,
(See Actions; HusBanp AnD Wire; PARENT AND CHILD; GUARDIAN

AND Warp)
PARTNERSHIP,
By and between spouses...............00. 000. c cece eens 315, 316
Dower int lands 08 606 3 cscs 3: ite toc claws dad tes a sign aoe ates 207
Husband and wife as members of ..................0-0000- 315, 316
Infant member: Of: 3. 3. eccn oes kus eea ene taswasdsaeyeeeiees 575
PART PERFORMANCE,
Of oral agreement for marriage settlement ................... 273
PAUPERS,
Marnage0f 6.2. cae ce cce cages eeaeaew ves s ee 52
Settlement of infant bastard ................ 0.00 cc eee eee 462
PAYMENT,
Of ichild’s ‘earninga): i: 25 sive se sends 44 Su Sos Hens ess deeds eben 471
Of wife'searningssvcc 6 cea cas onda Fkies FA neue 0xG EEE RES 128

PERMANENT ALIMONY,
(See ALIMony)

PERSONAL PROPERTY,

Capacity of aliens as to... 0... kk eee eee ene 713, 714
Of spouses and conflict of laws ..........2.0. 0. cece cence eee 301

(See Huspanp aND WIFE)

PERSONAL REPRESENTATIVE,

AB gUSrdian gdh 5ciensgeceeaest end labw ees Years sae AS 734

Right of to avoid infant’s contract... ....... Ne eee ee 559
PHYSICAL CAPACITY,

BO MARGE s3.csis cus cual eG se oki eee tienes saw oee so 47 et seq.
PHYSICAL SUFFERING,

Tn crueltyise. sci uu eu seks Spee ved oes Suse ee OEM Seamer S 366, 357

(See Damtacss)
758 INDEX

[References are to sections]

PIN MONEY,
Nature of and rules a8 t0............0i cece e eee ere eee eee 228
PLEADING,
COvertureiiies grates ieee stds so ewhicate cael ce ides walters 298
Alien, belligerency’ : «2.0. seve oases ss Sednee nes deeds ieee: 719
Desertion: ¢.:<4ira sie es dete oldies a saa da eb iagedsaxueereeey 366
In divorce.............. Pike casual seca ee Sa ates toes 435 et seq.
Seduction in breach of promise.................0020 02 eee eee 29
PLEDGE,
Of wife’s chose in action by husband. ..............-.....0 171

POLITICAL RIGHTS,

(See CrrizEns anpD ALIENS)

POLYGAMOUS MARRIAGE,

As proof of adultery ........ 2... ccc cece wee e ee cect e tence 443
POLYGAMY

Polygamous marriage void . ...........0.- cece cee eneeeeeee 60

How under peculiar statutes ........... 00. ccc eee ew eene 61
POOR LAWS,

Apprenticeship under . 2.1.02... cee eee ec eee eee eee neee 588

Liability to support child under ................. 000.0 eeeeee 489

Liability to support parent under. ................ 0.000 cee 499

Settlement of bastard under ............... 2. cece cence eee 462
POSSESSION,

After full age as ratification of lease to infant ........ ee Sees en 572

As evidence of ownership between spouses. ............... 299, 300

Of guardian is ward’s . 2.2.2... eee cee eee ee 733
POSTHUMOUS CHILD,

De gitMaCy Ole Sania eines + HOLSTS Ree ate ed obec neo es 455

Rights of under will ....... 0... 0c cece eee eee 302, 453

POSTNUPTIAL SETTLEMENTS,
Upon husband and wife............. 0.0... c cece cece eas 269, 281
(See MarriaGe SETTLEMENTS)

POSTNUPTIAL TORTS,
Liability for wife's 0.0.0.0. . cece cece cece cece cee cceneceeecs 133
INDEX 759
[References are to sections]

POVERTY,
Of parent as forfeiting custody of child. ................0006 479
Of guardian as ground for removal ............0.ceceeeceees 784

POWER OF ATTORNEY,

Infant’s void........... ccc ccc eue ence siagals Gaderd.a wand ei ia 541, 607
PRACTICE,
(See Actions; Divorce)
PRECONTRACT,
Int Enghsh law. 0). ccch\ casuian st caeuie  weke va wubeabatedoede 6n
PREGNANCY,
As enhancing damages for breach of promise................. 29
Concealed as fraud in marriage . ...............cceececeeecs 70
Antenuptial, as ground for divorce. .............ececcceeeuce 380
PREMIUM,
Infant’s liability for, in insurance. ..................0eeeeees 566
Recovery of, paid by infant for admission to.firm........... -. 875
PRESUMPTION,
ABO MAITIA LE 655 cee sss idee ck aka 4 SUL ACaecee tata Bowes 105 et seq.
Of death or divorce in favor of marriage. .............. 108, 109, 110
Of husband’s coercion where wife accused of crime. .......... 157
In actions against husband for wife’s necessaries.......... 120 et seq.
Against prior marriage to impeach later..................... 107
Of proper motives in suits against parent of spouse for harboring
or alienating affections .............. 0.0 ccc cece cence 148
Of fraud in antenuptial settlements ......................00. 276
Of fraud against creditors in postnuptial settlements .. .... .287, 288
Of legitimacy of child born after divorce .................. 327, 455
Of ownership between spouses ............. 0.0 cece cece eee 299
Of gift from wife to husband. ...............00cce cee eeeeee 299
Of ownership by wife as against husband’s creditors .......... 300
Of fraud in accounting with ward out of court ............... 768
As to guardian’s accounts .............. 002s eee eee eee 766
As to fraud in dealings between parent and child............. 501
Ofisanity, Invgeneralss ics cswes ese (eso Ru tia wba iota es ABS 667
Of testamentary capacity .............. 0. eee eee eens 651, 654, 667
Of sanity in criminal prosecutions .................0. eee eeee 670
Of infant’s capacity for crime...................0e eee eee 622, 623
That parent or guardian discharges duty of support........, .491, 549
Of fraud against subsequent purchasers under 27 Eliz.,c.4..... 290

(See EvipENncr)
760. INDEX

[References are to sections}

PRINCIPAL AND AGENT,
(See AGENCY)

PRIORITY,
(See Crevirors; DowsEr)

PRISONER,
(See Convicrs)

PRIVATE INSTITUTION,
Commitment of minor tO. .......... 0.0.0 eneee eSidteaenees 630

PRIVILEGED COMMUNICATIONS,
Between spouses ......... ee ee ee 164

PROBATE BOND,
(See GuarDIAN AND Warp; Bonpb)

PROBATE GUARDIAN,

(See GuaRDIAN AND Warp)

PROBATE HOMESTEAD,

Whatts: 4 weacteveses ican asi ea oae ass Seaweeds 265
PROBATION SYSTEM,

For infant delinquents .. ......... 0... cece cece cent eeeee 628n
PROCEDURE,

Ii dIVOPCC i oeciicis cco sea nied eae eee ed daa Raw S Ba 436 et seq.
PROCESS,

Against married women............... 2.00. c cece ace e eee eee 295

Against infant <2. 4 aces os des eee Sealers Gath natn dane onde 618

Against lunatic. «00.2.2... cc ccc eens 347

Am: divorceia.scsiade wees stuns Wed ead a Wi eGR Oo wba 338, 347

PROCHEIN AMI,
(See Next Frienp; Guarpian Ap Lrrem)

PROMISE TO MARRY,
The Contract

Eni Generals 5.5 suis ea wis ed capes Sa ee NLRs eeutd ee eee eee 6
Creates no status. 0.0... cece ccc eect eeenenneeee 6
Establishes fiduciary relation ..........0 00... 00 ccc cece cece 6
Inducing breach of ..... 2.0.0... 0c e cece nee c ences 7
Public policy ag to. 2... ccc cece eee e eee ne nes 8, 15
Disease and...........0...005 aaa i yaee denture nanns 8,15
INDEX
[References are to sections]

PROMISE TO MARRY—continued.

761

Parties tO ois cise caccicisan-sonele weve d Woe bee sare dina eters 9
Consideration for. ............... 0. ccceceuceneees see anoles 9
Wer ality inh .y s0) acs 2 spans xia os abe sc oeegees Ree nape es mites AY
Pad iN: sis ea ie gue eee ea eee a Ree eae s wits diesare 12
Same—Misrepresentation ................-cccccceccccececs 13
Same—Concealment ..........0...cccccccccccececencnececs 14
Misa eit se ise did. sssdeiecs 2 arteait oo anoles d-< deals 2 9chavees ml afatede s oxeeaes 15
As affected by impotency ................ 00. cece ceeeceaeee 14,15
Under statute of frauds . 2.20... 00. c cece ccc e ccc ecereace 16
MUCUaREY: 2: 2 ridixccees sania ecusuen Saewled Meese eres aera 17
Conditional promises ................. ccc eececccerceaceaes 21
PPEOOERO Ge capes Ws eletes wat errata 8 vue sericea Scan seasanetuebudl ok anouany we 18
Renewal Obs «24.2052 246 tssnae-c sande eo aiamin dow aednioa ora oeaunra ween ea 11, 24
Performance and Breach
Breach:in general... ccc cc cea ewe wren vew ven eeswbeetaae 19
Anticipatory breach ............00.0 0.0 c cece cece eee eeeeees 20
Conditional promise . ......... 2.00... cc ccc cee e cece eunees 21
No time fixed for marriage ................. duane < sete vex 21
Reasonable time—Demand ...............cccccecceccseees 19
Defenses
UTAH EL EY 55 55 oids S abatisc e ag ecsacsaveev and ace trapapane wi eALe A DENRA Gea 22
Drunkenness and other riiechtidlia Sieeane dette edu eere nacaiws 23
Release, rescission and renewal..............000ccececeeeees 24
Remedies
En general cis sistas vy evattenicecn ended be eae aa atid Stet s Meee 25
Does cause of action survive? ........... ccc ce eee eee eeeeees 26
Special damage ....................0004: Satca nS Grae d areata. s 26
Damages much at large ........... 0.000 eeee Wicca isp Bcc teiceneltas 27
Elements of damage considered .......:.........20e0ceeeees 27
Circumstances in aggravation and mitigation................ 28, 29
Seduction and pregnancy in breach of promise suits. ........ 29
PROPERTY,
Right of parent in child’s ............0.. 0 cee cee scene eee eeee 469
What constitutes child’s general............2.-20.--0se eee 469
PROSECUTION,
Threats of, as duress in marriage. .........0.ececcceereeeees 75
PROSPECTIVE DAMAGE,
For injury to child ...............02e00e- oi Raden keinet ea. 514
PROVOCATION,
In cruelty o224 esadere tace saad s oReees Sensei wes pews x 362
PROXIMATE CAUSE,
527

’ Of damage in seduction ............-00 cece eens pacinseuileis senso Pie
762 INDEX

[References are to sections]

PUBLIC OFFICE,

Capacity. of infant.for. 2.02.00. eee eee ee 610
Eligibility.of women to. 2.002... eee ee ee eens 2
Crime as.affecting eligibility to.......... 000. c eee eee eee eee 705
PUBLIC POLICY,
As to agreements tO MAITY ......4.. 0. eee eee ete ees 8, 15
As to contracts for custody of child....................--4-- 481
AS tO MaIrlage: wee esse ces eek es EROS LEE MER EE ea meee ® 31, 98, 105
As to separation and divorce... 1.2.0.2... 00 00 ec eee eee 817, 320
As to.action for plaintiff’s, own seduction ...............+0++5 518
As to suits for personal torts between spouses ...........-++-+ 484

PUBLIC SCHOOLS,
(See ConstrtuTIONAL Law; TEacHER snp PupPiL)

PUNISHMENT,
Of Infante. ecules dchred shea eas Meee cake AERA 484, 485, 627
OF TSAO ia. 0 soci ach ates a: eoteiuedve S aiAdaael nee Guaah Oe Suen eee games DELS 662
OL WIL Ciccone oa swore Hooe AA Waee ns 26 budwanmmndaian 115
Parent’s right to inflict......... 0.0.0.0 c cece ee eee eee eee 484, 485
Teacher’s right to inflict. .............0 0c eee eee eee eee eee 534, 535
PURCHASE,
Alten’ s title: DY 2.055 sac oes oeewes sawed be dee Ee atne Ost eed be He 714
PURCHASE MONEY MORTGAGE,
Dower as against... ...... 2... cee cece eee n een eee e ee eeee eee 208
Avoidance: Of Infants .oc o acess ceases oie wieinie 6 3 RRS ge eS 573
Q
QUANTUM MERUIT,
Recovery of child’s earnings upoD................00eeeeeeees 472
QUARANTINE, .
Widows. sand Sosigudeveg even gan Sicaaet aaa? cae ecee 193
Right of states to enforce as against aliens. ................. 713

QUASI CONTRACT,

As basis of parent’s liability for child’s necessaries.......... 452, 493
As foundation of infant’s liability for necessaries............ 542, 545
When liability for support of wife based on .................. 121
Liability for wife’s funeral expenses under ................... 129

QUASI GUARDIAN,
Definition and liability of ................ 0... cee cece eee eee 736
INDEX

[References are to sections]

QUI TAM ACTION,

763

Liability of husband for wife’s acts in. .......... 0... eee eee 157n
QUITCLAIM,
Deed of as disaffrmance by infant ..............-2000eee0e- 584
R
RACE,
Difference of, as impeding marriage................. ee ets 57 et seq.
Difference of, as evidence in bastardy..............00eeeeeee * 458
(See Constirutionau Law)
RANSOM BILLS,
In favor of enemies .... 1.2.2.0... c eee eee eee ew eee 718
RAPE,
By infant or assault by, to commit............... 00. cesses 624
On young children «065. ee oes PE Re OS Cea ee Es 626
By husband on wife ... 0.2.0.6... cece cece ene eee 156
On wife not adultery by her. ........... eee ee eee ween eee 351
RATIFICATION,
By husband of wife’s acts............ 00... cece e eee eee eeeee 310
Of child’s purchases by parent............. 0000s ee eee ees 491
Of infant’s contracts. .......... 01 cece eee eee 557 et seq.
Of infant’s deeds... 2.2... cee cece nee eee 579 et seq.
Of infant’s marriage... .. 0.0... eee eee enn ensees 41
Of lunatic’s contracts........ 2.0... - cece eee eect eee e eens 643
Of junatic’s: deedsig.ssi0c co guenwwee ss aes Dende he wenmitaas 646, 647
Of lunatic’s marriage... ..... 0... cee cece eee eee 46
Of drunkard’s contracts ... 2.2.2.6... cece eee eee teen eens 680
Of drunkard’s marriage...........0 00. c cece eee eee eee 46
Of wife’s postnuptial contracts. ....... 0.0.6. c cece eee eee eee 182
Of unauthorized sale of ward’s lands.............22.00se00e 759
REAL PROPERTY,
Capacity to contract a8 tO... 6.6 cece cece cece eee ene e tees 540
Of wives at common law ........... 2: cece eee eee teenies 174
Of spouses and conflict of laws ...........6 eee erect ee ees 301
Capacity of aliens to take and transmit...........-..-+---- 718, 714
Sale of 1URAtICB i. onic ccs se cares ba oud 8 ered FORMS Rae Be aS 638
Sale of, by guardian.............. cece eee eee e ees 757 et seq.
REASON, .
Conduct endangering .........0.:seee eee e eee e cece eee eeeee 364
REASONABLE DOUBT,
669

As to criminal capacity ......... ccc cece eee e cence eee eees
764 INDEX

[References are to sections}

RECOGNIZANCE,

RECONCILIATION,
Duty of deserted party toseek........... 2... cece ee eee eens 367, 368

RECORD,

As evidence of marriage. .............. 0c ees ceceeencccneces 104

RECORDING,
(See Recistry)

RECORD TITLE,

Wife permitting husband to hold ................-+. Siete sie ners 300
RECRIMINATION,

In divorce—Defined ............. 022s e cece e cece ecco neeene 388

Nature and time of recriminatory offense.................. 389, 390

Both parties guilty—Effect on later offense by one ............ 389
REFORMATION,

(See MisTake)

REGISTRY,

Of claim of homestead. .... 2... .- 0. cee w cece ence ce cesewecees 260

Of marriage settlements .... 0.0.20... cece eee ee ee eee Seb site 274

Of wife’s separate estate. .. 0.0... cece cece eect acne re ecese 241
REIMBURSEMENT,

Guardian’s right to............. eliotn arevalinlos al btdeayee OM gure ete rere 787
RELATIONSHIP,

(See Marriace)

RELATIVES,

What deemed within consideration of marriage............... 270

Services and support between near ..............ecccceeeees 474
RELEASE,

From contract to marry........... iniesd SPaIee Wipes a pee 24

By husband for tort to wife. 2.2... 0... ccc cece eee eee eee 139, 140

By husband of wife’s choses in action. ..............000ee00e 171

By guardian for ward ......... 0... cee cece eee e cece eee ecees 761
RELIGION,

In public schools ....... 02... 0. cece cece eee eee sehen eens 533

As affecting selection of guardian..............0ccceceeccees 730

Right of parent as to child’s. ...............005 a edad wee. 485
INDEX 765
(References are to sections]

REMAINDER,
Gurtesy ins sass camiesss esis tiaicinncearng sommed voumes tena te 199
Wife’s in personalty.... 0.0.0.0... 00. ccc cece ceeecsaceeees 171
REMARRIAGE,
Effect on alimony .........0. 0000... ccc cee ce eee eee eens 424
On fraudulent divorce. ...............0 000 sce eee e eee eens 432
Restraints on, after divorce.............0.. 0000 ccc eee 100, 346
Restraints on, in wills or settlements........................ 81

REMOTE DAMAGES,

What deemed in seduction . ......... 0... e eee ee eens 527
RENEWAL,

Of promise to marry .............. 00. eee eee pigonwrreeeee 24
RENT,

Acceptance of, by infant lessor............. 0.00. c eee e eens 572

When guardian chargeable with .......... 00.0... e cece eee 749

Duty of guardian to collect ............ 0.0. eee ee eee ee 750
RENTS AND PROFITS,

Of wife’s lands—Actions . ........ 00... c ee eee ee eee 393
REPAIRS,

Unf art's. COMEPACHLOR:: joijweccca pies airiguind amunghdra patos Gavarnadaadlare 547

Gliardian, duty 886). siccc14 comessadounaedres hard sguieend ates 751

On separate estate of wife ........... 0.0. c cece eee eee 247
REPEAL,

Of divorce act as affecting causes existing or pending ......... 349
REPEATED CRUELTY,

As ground for divorce............. 0.00 sees cece teen eee eae 364
REPUTE,

Not sufficient to establish marriage... .................0.0005 106
RES ADJUDICATA,

Guardian’s final account a8. ......... 02200 c eee ees 767

How far decree for custody of child is.................0.50. 446, 480

Decree for alimony a8........... 00000 eccecceceee ee eenees 421, 423
RESCISSION,

Of antenuptial settlement ...................0.... Biecnsien sais 280

Of contract: to. MaITY:c« ove u Hewes aeer skeen vee angawnEss 24

Of contract for infant’s fraud......0....0..0.. 000 e cece eee eee 597

(See Inrants; Insanity; AVOIDANCE)
766 INDEX

[References are to sections]

RESIDENCE,
(See Domicite; Divogce)

RESIGNATION,

Of: pilardianlsciscecee 4 acqegeee saa de hacen s dao ed Sea ee MEE 781
RESTITUTION OF CONJUGAL RIGHTS,

Nature and status of remedy............020cccceccceceseeee 149
RESTORATION OF PROPERTY,

Upon divorces cca b Gn cpa se waie a Gia acest w Olbeeia ew wba 412
RESTRAINTS ON ALIENATION,

Of homesteads i. cs :csisanelscuclareuis wets ea ves eo ehie eua arse ee erates 257

As to wife’s equitable separate estate.............2....005 224, 225
RESTRAINTS UPON MARRIAGE,

How fan lewis dc denne vous Geis, eames dn aesetawiied ag 31

RESULTING TRUST,
None presumed in property purchased by parent in name of child 505

REVERSIONS,
CUrteSY I io5 Syosset ated Sis cdicae glemie pie Bb gennind = Anne aun 199
REVISION,
Of decree for alimony. ........ 0.2.2 eee cece eee cece eee 421, 423
REVOCATION,
Of agency by marriage. ......... 0... cece e cece eee eeee 314
Of separation agreement ................. SPR eee Goad Minas ore aethe 325
Ss
SALE,
Of husband’s exempt chattels. . 2.0.0.0... 0.0... .c cece eee eee 266
Of ward’s personalty... 2.0... 0... cece eee e eee eee 760
OF ward's IandS isi 5. ecesae aye edhe 2p hugOhas bemadloancteela sears awe nade 760
Of lunatie’s land sss. oo cs ose oe earmadusd Aaa eames weenie 646, 648
(See CoNvEYANCE)
SCHEDULE,
Or inventory of wife’s separate property..................... 241
SCHOOLS,

(See TEacHER AND Pupit; ConstrrutTionaL Law)

SEALED CONTRACT,
Infant may ratify by parol.......... 0.0... cece cece eee ee 568
INDEX
[References are to sections]
SECTARIAN INSTITUTION,

767

Commitment of minor to........... 00.0 .c ccc eee eeeeeeees 630
SEDUCTION,
Of female child joy jc. cek ae nanos aoey dees eeeaeeun 517, 518, 519
May be crime or civil wrong. .............0.0 cee eeececeeeee 517
Civil action by woman seduced...... ........0.0c0ceceeeees 518
Exceptions to common-law rule denying... ...... ........... 519
Action by woman under statutes. .~. 0.0.0.0... 0. c eee e eee eee 519
Previous chastity in her action for...............0..20eeeeee 520
Effect of former recovery by parent upon................... 521
Acton: by parents scion. igcdw sawn yar onteaweabieweew kenge 522
Gist of action loss of service ............ 0000 ccc e cece e eee 522
Same—Statutory changes. ......... 0.0.0.0 .e cece sense neee 522
What constitutes loss of service...... ........0..00ce eee eee 523
Where:daughter of ages «esse nae need bean id adiimntin nomen 524
Where daughter non compos mentis...... ..........00000 008 524
Who may sue for—Father’s right................00ceeueeee 525
Same—Mother’s right... 0... cece cence eens 525
Same—Stepfather’s right... 0... 2.0.0... cc cece cece eens 525
Others in loco parentis.. ..............04 sie ow Rah Atos 525
The defenses) 0 Aeciee day mexweoae kek amey odetee Kemaee Ae eae 526
Consent of daughter... ........ ccc ccc e cece eee een eeneneee 526
OP Parenbe cing segs aietuddey nied eee aulw teed eee meets 526
Negligence of parent............. ccc ccec eee c ese eeeeeeenens 526
Damages for daughter’s. . ........ 0... c eee eee cece eeee 527
Originally confined to loss-of service............ cece ee eeees 527
Now embrace mental elements. ...............0 02s cere 527
Loss of service must be proximate result...... ...........-.. 527
Previous unchastity in mitigation..... esa inte Gone wre mast eid 527
Conduct subsequent to seduction.............. 00.000 e eee 527
Other facts in aggravation or mitigation...... .............. 527
Exemplary damages. + << 2202 scaueexee sees deulnk saan e sees 528
Of wife'or husband } sisscs00cieeven does or etaew ees wees 145 et seq.
(See CriminaL CoNVERSATION)
ORG ppren ties oes cninaaeed Gineiad inns Hale aenid Qengeie sate a een 590
By infantecauces ease sae weed Maku tiie dani Riew ausews amiaccccea eae 593
As enhancing damages for breach of promise.................. 29
Letters of spouses as evidence in actions for.................. 165
SEIZIN,
TO BiVE CUFtEBY... ees doses veka oes eRe ee eek Eo 198, 209
TOigive COWEF deine stern avin snain sia lanvaiinconsnda seth woe 206, 208, 209
Of wife's: frecholds «c.z:ciscrscsonwavice os acne siavelsiewnd sdraseuedn dasa nuwigca’ 175
(See Purcoase Money Morreace)
SELF-DEFENSE,
687

Drunkenness under plea of...... ......- sual Caepreielderneees
768 INDEX
[References are to sections}
SENTENCE,
(See Convicts)
SEPARATE ESTATE,
(See HusBpanD AND Wire; SEPARATE PROPERTY)
SEPARATE EXAMINATION,
Of wife to bar dower... ........ cece cece eee e eee eee 210

SEPARATE PROPERTY,

Burning by spouse of other’s ag arson..............6-002 002 156
Execution against wife’s for tort............... 002 e cere eee 135
Torts tO: Wile By..:5.0 2 Hav say oer S 22 Hee 554 BE Ke eRe oe RO 141

(See Huspanp aNpD WIFE)

SEPARATE TRADE,

Wife’s at common law........... 2... cece eee eee teeters 229
Under statutes. .............. 0. 0255- athe Jape dares 240, 254
Husband’s services in managing wife’s...........-.....+..--- 289
SEPARATION,
Of husband and wife—In general.................02220--00: 317
Informal between spouses ............ 0.0. eee e cece ee eee ees 318
Ulider articlesy-ccci.:.rcn.ce a csdietguns vad bhp os ee eeLorS 319
Validity—Public policy... .......... 002.22. -eeeeeeeeeeeee 320
English rule as to agreements for. .................-....0055 320
Form of separation agreements. ......... 2... ....---0 02 eee 322
Whether trustee necessary in........ 2... eee eee eee eee 322
Custody of children under. ........... 0.0.0.0 eee eee ees 323
Effect of agreements of.. 2.0.0.0 6. eect eee 324
Avoidance and termination of........ ...........020220000e 325
Effect of, on wife’s right to support................62..000005 122
Agreements for, as license to commit adultery................ 398
Voluntary as ground for divorce... ...... 6.00... 2c eee eee eee 382
Voluntary—How affected by offer to return.................. 372
Does not give wife right to fix domicile of child ................ 482
SEPARATION DEED,
No defense to suit for nullity... ... 0.0.0.0... cccc cee eee ees 49
SEPULCHER,
Right of, as effected by marriage.................00 000005 129, 130
‘SERVANTS,
Duty of master to instruct and warn infant.................. 603
As witnesses in divorce. .... 0.00.0... 0.000 cece eee cee e ee eees 441

SERVICE OF PROCESS,
(See Procxss)
INDEX 769
[References are to sections]

SERVICES,
Contracts of, by. infants to render... .....-.....ce.0cececuee 555
Parental right to, as basis of parent’s right to sue for injury to
Child ss) 52 Sacersceatad a vs. masa Ae Ae dada cada ere Gausny mow ad 510
Damage measured by value of.............0.0.0 cc ceceeeeeee 514
In actions for seduction... .. 2. 00... ee cee ce eee ee 522, 523,524
Loss of, in injuries to consortium. ..............--0.eeeeeeee 147
Parental right to child’s............0. 000.0. c ccc cuee cues 469, 470
WTO; DASTATC Bi oelyt ace nnd beaut aaita nahi wae) ean 463
Woman’s right to recover for, after decree of nullity... ....... 328
Gift of husband’s to wife... 00.00.0000 000 c cece cece eee eens 289
Right of guardian to ward’s. ...........0.. cc cece cueeeueeees 740
(See Husspanp anp WIFE)
SETTLEMENT,
Of bastards te acu dte 4 vied ae see's s cis Sep ee Ss See 462
(See MARRIAGE SETTLEMENTS)
SEX,
As related to status... 2.0... oc. ce cece cece cc snceeeeees Biota 2
(See Women)
SEXUAL INTERCOURSE,
Rightiol Spouse tO. 5.55 a dedes cove tise oe sinaes eee ee GDS 8 t4eiR ers 114
Promise to pay husband or wife for void ...............-.--- 114
Denial or abuse of, as cruelty... ............--- 0c eee eee eee 358
Refusal of, a8 desertion. .........0.0.0.-- cece erence weer eeee 369
Does not alone constitute seduction..............2 ee eee eee 518, 519
Refusal of is not impotency. .............. cece eee e eect eees 48
(See ConponaTIon)
3 eee :
Uniting with, as ground for divorce. ..........0eseeceeceeere 382
SHERIFF,
Liability to convict for unsafe condition of jail.............-. 708
SLAVES, ‘
Marriage Of... 0.0.0... cece cece cece ccc c ree nenneeeeeneeees 59
Legitimacy of offspring of.......... siienilier’: arereue o> ee ee 59
SOCAGE,
Guardianship in. .......... 20s cee ce reece eee ee eeee ee eeees 722n
SODOMY,
As cruelty. ... 0.0... cece ccc ence eect pen eaeeesemortenes 360n
Asradtilterys: sce 0: seins cami cesta es denen gee egies paneer eee es .., doin

SOLE TRADER,
(See Szpanatz Traps)

49
770 INDEX
[References are to sections]
SOUTH CAROLINA,

No divorce in... cov ces aes eben cies one eewewieesicse, BOO
SOVEREIGN A

Suits against.;.¢ . 2 ek vaca iwiaws cote ev eteae a eae s os 716, 717
SPECIAL DAMAGE,

In breach of promise... 2.1.2... cece eee ence reece eens 26

Inducing breach of promise as in defamation..............64. ;: 7

SPECIFIC DELUSION,

As affecting Will... 2.0.0.0... cece cee ceceneeeceeeeeeeeenee 651
SPECIFIC PERFORMANCE,

None of contract to marry........0 6. cece ee eee eee eer ene 25

Infant not entitled to......... svardiai'e aiatavieim Yee apas-nie ooreninre @ - 617
SPECULATION,

Guardian using ward’s funds in ............0.e cess cece cece 754
SPENDTHRIFTS,

Definitions evened oe ganTs gues sees he tia ae Sones 691

Guardianship of....... fades ese alee wtetatadaheters mage caoeaes 691

Contractsiofss 2. sasny ss sens es vem odertesin eons By a gabe ned avons 691

Conveyances Of icisis snes ss seewe ss wees esis ob eV RISE eR a BHR 691

Spendthrift trusts......... gee eee SeaGs ve aioe ee aa eres 692
SPIRITUALISM,

Belief in, not delusion. .. ......06 ccsccccvccccncccccscccses 652

STATE'S PRISON,

What meant by, in divorce act........ Hucwa savas eeie seas 383
STATUS,
Defined and considered ..............0 eaid6 srariaes Shiga othe 1
ATi PELAGION HO BOX iciises de See win tee duiaeietans seis oe POA oe visors are 2
Marriage 29 &...........eeee eee eee eos agen ruenee cee Mad
Divorce a proceeding against... ........ cece ceeeeveeeeeee 333
Of slavery as affecting marriage. ............... Micou tities Sauhes 59
Adoption a proceeding to establish .............ccceeceeeees 465
Of infaney ss: < 2-Feeaisece ds alee baieelouegsd Samus a 3 Vala bama eaten 536
Of lunatic under guardianship... ...... 0.0.0.0. 0.cc cece eeeeee 536

Proceedings affecting, may give jurisdiction to appoint guardian. 737

STATUTE GUARDIANS,
Defined .......... a eR Hees seats ear eceNeN aN eaasbid Srna 724
INDEX 771

{References are to sections]

STATUTE OF FRAUDS,

As affecting promise of marriage .............-00ee eee eaeeae 16
As affecting marriage settlements... ...... 0.22.00. cceee .272, 273
Contract void under, may rebut presumption of gratuitous.serv~

NGO se caeen gs. ve retsie SPs ttyaudes sob aes GHA cabead eeavaus Rob andlace = Ganomed-wiavans 474

STATUTE OF LIMITATIONS,
(See Luwrration or AcTIONs)

STATUTES,

How construed as to formalities of marriage ...............4 87
STEPFATHER,

How far controls stepchild’s domicile..............0.0-2-200- 483

Liability for its support. se ee ee eee Be Barat tie boiepeee earaaiS Fe AGT 494
STOCK,

Guardian investing in corporate. .......cccncceccucecceceess 753
STOCKHOLDER,

WHfsit: a8). vccecaxetauess Vat iate e: ahateinve ie latale Sila waiahs ais eiabarewrms are 576
SUBROGATION,

OF lender to infant +: nse s<ce0e evxies se aaivees varotar veces _... 552

Of one advancing money for wife’s necessaries ............... 121
SUBSEQUENT CREDITORS,

Settlements in fraud of... 1.2.0... cc cence ee cceeeceeceeeees 289

SUBSEQUENT PURCHASERS,
(See Bona Fipzr Purcaasers)

SUBSTITUTED BOND,
Liability of sureties on guardians. ..............seecceeceeee 772

SUIT,
(See Action; Partiss)

SUIT MONEY,

Nature and allowance of ..........-0eeesecceesceees 64 seas 418
SUMMARY PROCEEDINGS,

Affecting infants ...... reales aanone Tatsuo een be eel 628
SUPPORT,

Sums paid for, not deemed advancements. .................. 505

Provisions for, in separation agreements.................- ..» 3820

Conveyance to child in consideration of... .................. 500

Wife’s right to, superseded by divorce. ...................4.. 327
772 INDEX

[References are to sections]

SUPPORT—continued.
By allowance pendente lite ......... 0. cece eee eee ee ee eee 414
Continuance of, by husband does not prevent his desertion... . 369
OE Dasthid isa suas dc.5 eave RNR He alerekinnes ee-SerbO24 aaa ae 461
Guardian’s duty and rights as t0......... 0. cee eceeee eee 740, 745
Of adult child at home. .............. cc cecssccccccseeeecee 474
In exchange for child’s services..... pine Vass s HEae ORS 473, 556
Of childs after divorce.............. 22. cece cece eee ee een eees 452
Of lumatiesdee 2: kia dae oes ahhw eos. age Sas Sa a wee nee eS 638

(See Huspanp AND Wire; Parent anp CaILp; NECESSARIES)

SURETIES,
(See Bonps; GuARDIAN AND WARD)

SURVIVAL,
Of action for breach of promise.............eececeseeeeneee 26

SURVIVORSHIP,

.. See Huspanp anv Wire; Drata)

SUSPENSION,
Of pupil from public school. ............ eee eee sere cece eens 535
Grounds for..... F aiste ee Saiatety a Goes SSR Muh Rate z 536, 537

SYPHILIS,
Communicating, as eruelty......... Ug Aaichcheransie tiksa eoareteevomiuaese 357
As a disqualification for marriage... .......cccs scene cee eee 357
In breach of promise... 20... 00. cece cen eee ewe ete cw eseee 15

T

TEACHER AND PUPIL,
The relation of, in general... 2... 0... ese eee eee ce eee eens 530
Who may become pupils—Right of admission to public schools.. 531
Mandamus to compel admission... ........ cece cece eee eee 531
Right of colored children to admission. .................00005 531
Validity of provisions establishing separate schools for......... 531
Vaccination as a condition of attendance... ..............65 532
Course: of study. 25 sek ev eaetes oy Files ya sieew es see eandecax 533
Religious exercises and instruction. .............eeeeeee scene 533
Teacher’s right of control and discipline. .................00 534
Suspension and expulsion of pupil............. eeaeiaere x ercns 535
Grounds fOF sp cnc an ee pu bded O26 abies weleleee Saletan sae cates 536

Conduct out of school or sanctioned by parent............... 537

TEMPORARY ALIMONY,
(See Atimony)

TENANCY IN COMMON,
INDEX 773
[References are to sectional

TESTAMENTARY CAPACITY,
(See Wits)

TESTAMENTARY GUARDIANS,
APPOMtMeNnt Of. ciclo ce. s Modins 4 Webn ds boele oa dene weeds 724
(See GuarDIAN AND Warp)

THREATS,
Of arrest or imprisonment as duress in marriage...........-.. 66
TIME,
For avoidance of infant’s deed............0.c0ceeceeeeeenees 582
Rule as to contracts ..... 0.0... e cece cece eee e ee eees 558
OF desertion! 4:4 <i gees exeeiee sa aees é ase se fae kee es 372
TORT,

(See the specific torts and HusBaNnp AND Wire; Consortium, PaRENT
AND CHILD; GUARDIAN AND Warp, InFants, INSANITY, etc.)

TRANSITORY SEIZIN,

Does notizive: dowers ices s gain d Give vs HRS 6 ate vag S 206
TREASON,

Effect of conviction of..............0..0ceceneeeereees 698 et seq.

(See Convicts)

TREATY,

Alien may hold lands under... ...... 01.02 .eeseceeceeer ences 714
TRESPASS,

Action for, on wife’s land............200ecceeanecececeeeees 393

Anfant Hable foros 6 siege d cane tscadessscedesschsderasaes 593
TRESPASSER,

Right of infant to recover for injuries though a................ 604
TRIAL,

Of the insane. «ss: six 84 ceeae ss wee d Geeta ss ieee 8s Slee 2a ee 662

Of divorce cases before master... .........20 ee cece eee eens 436

TRIAL BY JURY,
(See ConstirutionaL Law; Jury TrIat)

TRUST,
Infant bound by his execution of...........-.....2..00 eee ee 543
In lands for alien... ... 2.2.2... c ce cece eee ence eee 714
Necessity for, in marriage settlement...................-.6-- 275
In favor of parent in property purchased by him in name of
CRN GS case eh c-sthineed> ayes ee ees penn ee eR Aa ae sigue aa 505
Where attempt to appoint testamentary guardian fails........ 724
774: INDEX

[References. are to sections]

TRUST COMPANY,

As guardian -y s4 vse vee xed a guid eeawiew ob avails a eitiane © signee oe 729
Not required to give bond as .......... (eae esaene s aoee sae 731
TRUSTEE,
Husband takes no interest where wife is..............0++e0+- 167
Infant asian os savage hha eed eed oo OE Nese NS os OREO OS 611
Te guardian’ a? ys ac2 doce oecsad GEG GAR TE BREY Soe De eee ees 732
May be appointed guardian ................ eee cece eee e eee 729
Necessity for, in separation agreements ............2-+------ 322
When entitled to trust property as against guardian.......... 747
Whether necessary in antenuptial settlement...........-.-.-- 275
TRUST FUNDS,
Duty of guardian to deposit...... 02.0... cceeeeeeeeeeeeeees 755
Should identify deposit as trust ............... 0c eee eee eee 755
Where guardian invests in land ...............--2 eee eee eee 751
TRUSTS,
For married women... ...........2ccceee cece eee eens 220 et seq.
TURNTABLE CASES,
Doctrine’ OF; ss 2 hye nc Gate Pe ee sd wimne'scannten’ se gusrekte Maea eee 604
U
-_ UNBORN CHILD,
‘ Status and rights of -....... 0.0 e eee cc ccc eee eeneee 453
. UNCHASTITY,
Antenuptial, as ground for divorce. ............2- 20 eee eee 380
As a defense-in breach.of. promise ............ Hers aig Weise riadents 22
Concealment of, as fraud in marriage ...........-...c00eeees 14
False charge of, in breach of promise. ................0..0005 30
Previous to seduction. . 2.2.2.2... cece eee cece tee 527
UNDUE INFLUENCE,
Déaf mutes ands osc punts catsenoacaeders cde oa Ales Roeae 694
Presumption. of,-in accounting to ward out of court. .......... 760
In dealings between parent and child ....................... 501
In settlement in lien of dower...........0...ccceeeeeceeeees 215
(See Fraup)
UNFITNESS,
Of parents for custody of child. ........... 0... cae cence eens 480
Removal of guardian for .............. 0.0 cece caccecacecees 783
UNNATURAL OFFENSES,
As cruelty................. hating winiaiew vane Ae SER Sis Kalas 360

As adultery. 2.0.0.0... 0c cece cea cece eee Suse 6 oreveesiorues 8 351
INDBX 775
(References. are to sections]

UTTER DESERTION,

In divorce... ...........0005 Got ieeeauseA ee ror e Aeon tenes 367
v

VACCINATION,

As a condition of attendance at public school............... 6 582
VENEREAL DISEASE,

As evidence of adultery.......... Se ee re 443

(See SyPxH1nts)

VERDICT,

Of guilt as “convietion” .......... 0c. ccc cece eee en eee nenee 698
VESTED RIGHTS,

Under married woman’s acts... ...... cee eee cee ee eeaee 236
VIOLENT AND UNGOVERNABLE TEMPER,

Divorce for indulging... ........... cc cseeeeeees ieee 384

VOLUNTARY APPEARANCE,
Gives no jurisdiction in divorce where neither party domiciled... 338

May arouse suspicion of collusion .................0.ee eee 404
VOLUNTARY SEPARATION,

As ground for divorce. ..........- 0... e eee eens e eee nee ees 382

(See SrParaTioN AGkEEMENTS)

VOTER, .

Disqualification of convict as:......... iseee swe see ss 705

Ww

WAIVER,

Of wife’s equity to a settlement... 2.0.2... eee cece eee 232
WARD,

(See. GUARDIAN. AND Wann; Insaniry; Spenptanirrs; DRUNKARDS)

WARRANTY,

Infant not liable for false..................- Mug caatnisadamtaets 596
WASTE,

Actions for upon wife’s land............-... se eeeeeeee eens 208

By husband as to wife’s lands...............eee seen eee eee 175

WASTING OF ESTATE,
Drunkenness and in divorce. ..........0ceeseceeceneees ‘aes 874
776 INDEX
[References are to sections]

WEALTH,
Evidence of, in seduction. ............22--ccceceenee cence 527
WEARING APPAREL,
Of child prima facie belongs to parent... .. .......-00eeeeeeee 469
WIDOW,
Domicile of minor child of............. 0.0... cece eeeeeeeeee 483
Same—On remarriage... 1.2.1... cence eee eens 483
Liability for support of child... ................e0eeeee ee eee 494
Right to guardianship of minor children. ..................-.. 479
Right to services and earnings of minor child ................ 470
WIDOW’S QUARANTINE AND ALLOWANCES,
On death of husband. .........0....0.00 ccc e ces eeceeeeeees 193
WIFE,
Domicile of, after limited divorce. . . .. JPA d ad eees sae eee 117
When may have separate domicile................0.22000005 117
When may regulate family home................ Tho 5 dviyandiad ore 118
(See Hussanp anp Wire; AGENCY)
WILL,
Adopted child under. ......... 1... cece eee cece e eens 468
Husband’s capacity to make. ..............0 02 e eee eee eee 302
Marriage and birth of issue as revocation of husband’s........ 302, 303
Election of wife under husband’s................0....-05- 216, 304
Effect of marriage on wife’s....... 2... 2... ccc cece eee eee eee 305
Effect of, on her testamentary capacity............... 305, 306, 307
Effect of divorce on, of spouse .......... 0.000 cece cece ences 308
Ob infants: sides ded ncnars ciy aed se ansiece BS eae. wearin yale is tual 609
Of drunkard or drunken person ................ syalalanecsammnettes 682
Of lunatic, in general... 2... 2... ccc ec enc ence eee eee 649
General test of mental capacity. ... 2.2.0.2... cece eee ee eens 650
Business capacity—Delusions.....................000000. 651, 652
Of lunatic under guardianship. ..................00000000008 654
Effect of undue influence and mental weakness on............ 653
Burden as to testamentary capacity..................006 667, 671
Rights of unborn child under .................0. 0000 e ee eee 453
Bastard may take by ........... 0.00. cece eee cece eee eens 460
OF homestead. 5 o2.6 o4d-o0 eo Kegon sain doa bed oe age oreweuew 265
Husband cannot dispose of wife’s chattels real by............. 173
As bar:to curtesy-oiie'ea: ssci's oe roe Ce anton ne Baw TERE ERLE EHO’ 201
Hotchpot clause in 2.2.2... eee eect e reece 506
WILLFUL DESERTION,
Divorce fori < i2i v0.24 < siebmw » swear g oe ancesaw-neina os vee da Begeis 366
INDEX 777
(References are to sections]

WITNESSES,
Husband and wife as ............... 2200s Pisin danas 158 et seq.
(See Huspanp AND Wire)
Marriage for purpose of disqualifying witness... ............. 158
In divorce suits 2.00. cece cee cee e nea 441
Infants as..... shins oecvaaus dit eadindatoanens he Gena aren Shes 612, 613, 614
Convictalasi.n. acne cuios gaaield cmnacomgicnc hamae tame’ 701, 703, 704
DRinkards 800i arcs cseeecangs ay eorws ea Qg ecu ey Peadie’ 3 690
Deaf and' dumb as. 6. oc 65 ewe easiness seins us ewe g-n oeeernie 695
UNA GICS YAS Suis: 5 anes we gaas sees SOR yea a tee Weetoe oes 672
WOMEN,
egal ‘statis Of ica) eae: Saheb hanes ety i eenneiae Sarees 2
Right to hold: OMiees, 40 ccccas sata axaamesieewes s stews as Sense 2
Right to practice law: ..5.¢ sss sieieiu is eve cine 'e eecisins Sane ve 2
Equal suffrage) to) vee > cindnd sn sles xaaaies vanvede seideee Series 2
Regulation of employment of ................ cece eee eee 2
KF 505 874

 

Author

Spencer, Edward Whiton

Vol.

 

 

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