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 ALVAH L. STINSON
 
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 TABLE OF CONTENTS 
 
 Page 
 
 CHAPTER I. -COMMON LAW 1 
 
 CHAPTER il.- MARRIAGE SETTLEMENTS ... 17 
 
 CHAPTER III. -PROMISES TO MARRY AND BREACH 
 
 OF PROMISE 50 
 
 CHAPTER IV.-MARRIAGE 63 
 
 CHAPTER V.-HUSBAND AND WIFE .... iOO 
 
 CHAPTER VI.— MARRIED WOMEN 144 
 
 CHAPTER VII. -SEPARATE PROPERTY OF MARRIED 
 
 WOMEN 202 
 
 CHAPTER VIII.— COMMUNITY PROPERTY ... 253 
 
 CHAPTER IX.— DOWER 262 
 
 CHAPTER X.-CURTESY 293 
 
 CHAPTER XI.— SEPARATION BY AGREEMENT 298 
 
 CHAPTER XII.— DIVORCE 322 
 
 CHAPTER XIII.— ALIMONY 398
 
 PREFACE 
 
 This volume is dedicated to the aggressively 
 progressive women of this world, in the hope that 
 it may prove useful as ammunition for their com- 
 bat with defiant conventionality and obstinate con- 
 servatism. Knowledge is often the best persuader. 
 The barriers which restrain human liberties are only 
 vulnerable to the vigor born of knowledge. Each 
 thought or word, that prompts the activity which 
 assails, may own its share in the final victory, and 
 none should hold back contribution for fear of its 
 proportionate insignificance. 
 
 The most important result of the better civiliza- 
 tion of our time is the increased knowledge and 
 power of women. We know that in limited spheres 
 their influence was always incalculably great; but 
 now, without losing their ascendancy at home, they 
 find a career in many of the trades, most of the 
 professions, and all the arts. In those of the arts 
 which give the most lively pleasure and reach the 
 greatest number of persons, namely fiction, and the 
 drama, women, in our day, have attained the first 
 rank, and have made the first rank higher. 
 
 I set no limit to their future achievements ex- 
 cept that which nature herself has established. So 
 long as the chief business of every state w^as to 
 defend ftself against armed encroachment, all gifts 
 and all character were of necessity subordinate to 
 masculine force. Women were "the subject sex." 
 The peace and safety resulting from the union of 
 many states, and to become universal through 
 federation and arbitration, will still further reduce 
 
 iii
 
 the importance of muscle and brawn. The time is 
 not far distant when the ballot will have rendered 
 the bullet not monstrous merely, but ridiculous. 
 
 Women have risen to the better chance 
 afforded them by the amelioration of manners. The 
 most fortunate of them have been cruelly obstructed 
 by the large remainder of barbarism which exists in 
 every community, and they have done their w^ork 
 in the teeth of every conceivable disadvantage. 
 They have had to snatch it from a cross-fire of 
 hostile circumstances. That they should have been 
 able to exercise their rare talents at all, and so 
 triumphantly, is a kind of miracle, at which we can 
 but stand amazed. 
 
 To avoid the risk of any possible misconstruc- 
 tion I shall offer here a short explanation of my 
 locus standi as regards the whole subject in ques- 
 tion. 
 
 I have been for some years deeply interested 
 in what has been called the "Woman's Movement" 
 and have taken part in pleading for the higher educa- 
 tion of women, for the admission of women to 
 university degrees, for the protection of the prop- 
 erty of married women, for the employment of 
 w^omen generally. 
 
 I have seen every year more reason to regard 
 the part hereafter to be played by women in public 
 affairs as offering the best hope for the moral and, 
 still more emphatically, for the spiritual interests of 
 humanity. I think more highly of woman since I 
 have watched and noted her keenness from the 
 public platform; and 1 have more confidence than 
 I had at first, both in her ability and in her stability. 
 But it would be idle to veil the fact that the path of 
 progress on w^hich w^omen have now entered leads 
 up a steep hill of difficulty. Dangers must be faced 
 whenever any time-honored evil is to be swept 
 away or any new good achieved. The rapid pro- 
 gress of woman in public life and affairs could not 
 
 iv
 
 now^ be stopped, if we desired it; nor should we 
 desire to stop it, if it were our option to do so. 
 
 I have yet to learn that knowledge and free- 
 dom, which are the springs of all the nobler virtues 
 in men, will be less the ground of loftier and purer 
 virtues in women. 
 
 Women do not ask favor of men, but justice. 
 
 That a woman should really possess public 
 spirit, and that its exercise should be as ennobling 
 to her as it is to man, is a lesson which it takes 
 most men half a lifetime to learn. 
 
 It is not then to men that women must look 
 primarily for aid to climb the ascent before them. 
 The work of elevation must be w^rought by them- 
 selves or not at all. At this hour there are in 
 America thousands of women of the highest social 
 and intellectual rank who desire to see better days 
 for their sex, but who are sitting, sighing and wait- 
 ing patiently for some tall, grand, masculine Jupiter 
 to descend and lift their chariot out of the ruts of 
 custom, it is in vain; they may so wait forever. 
 Nothing but their own steady and simultaneous 
 labor and a knowledge of the laws relating to their 
 sex can really elevate them. 
 
 This book is offered to the public, not as a legal 
 treatise, but as simply an attempt to state intelli- 
 gently, the rights, privileges, and disabilities of 
 women under the law. especially so far as they are 
 different from those enjoyed by or imposed upon 
 men. Repetitions are intentionally frequent. Take 
 this offering therefore for what it may be worth, for 
 its good wishes if nothing more. 
 
 ALVAH L. STINSON. 
 
 Boston, Massachusetts, July 1, 1914.
 
 CHAPTER I 
 COMMON LAW 
 
 The condition of woman at common law was 
 little better than that of a slave. A wife has a right 
 to share the bed and board of her husband, and 
 can call upon him to provide her with necessary 
 food and clothing, but she is bound to follow him 
 wherever, in the country, he may choose to go and 
 establish himself, provided it is not, for other 
 causes, unreasonable. She is under obligation to 
 be faithful in chastity to her marriage vow. 
 
 A married woman can acquire rights of a polit- 
 ical character, which stand on the general prin- 
 ciples of the law of nations. When she commits a 
 crime in the presence of her husband, unless it is 
 of a very aggravated character, she is presumed to 
 act by his coercion, and, unless the contrary is 
 proved, she is irresponsible. 
 
 Her property rights were put by the marriage 
 very much under the control of the husband. He 
 could manage his own affairs in his own way, buy 
 and sell all kinds of personal property, without con- 
 sulting her and without her control, and he might 
 buy any real estate he might deem proper; but, as 
 the wife acquired a right in the latter, he could not 
 sell it, discharged of her dower, except by her con- 
 sent, expressed in the manner prescribed by the laws 
 of the State where such lands lay. Her personal 
 property in possession was vested in him, and he 
 could dispose of it as if he had acquired it; this arose 
 from the principle that they were considered one 
 
 1
 
 WOMAN UNDER THE LAW 
 
 person in law. It has been wittily remarked that a 
 husband and wife are one and the husband is the 
 one; I think, however, that in our common ex- 
 perience many husbands regard the husband and 
 the wife as two and the husband the two. At com- 
 mon law the husband was entitled to all the wife's 
 property in action, provided he reduced it to pos- 
 session during her life. If the wife died before the 
 claims were collected, the husband received them as 
 her administrator, in which case, after payment of 
 her debts, the surplus belonged to him absolutely. 
 He w^as also entitled to her chattels real, but these 
 vested in him not absolutely, but sub modo: as, in 
 the case of a lease for years, the husband was en- 
 titled to receive the rents and profits of it, and could, 
 if he pleased, sell, surrender, or dispose of it during 
 the coverture, and it was liable to be taken in execu- 
 tion for his debts; and, if he survived her, it was 
 to all intents and purposes his ow^n. In case his wife 
 survived him, it was considered as if it had never 
 been transferred from her, and it belonged to her 
 alone. In his wife's freehold estate he had a life 
 estate during the joint lives of himself and wife; 
 and w^hen he had a child by her, who could inherit, 
 he had what is known as an estate by the curtesy. 
 When necessary the great institution known as 
 the common law w^ould, in deference and fear of an 
 occasional outbreak of humane public opinion, 
 afford some sort of equitable protection to the wife. 
 When, however, it w^as only possible for the com- 
 mon law to protect but one, it sedulously spread its 
 protecting wing over the husband, and the wife was 
 left to trail as best she could. 
 
 At common law a married woman could not 
 bind herself by contract, express or implied, by 
 parol, or under seal, even for necessaries, nor 
 though living apart from her husband, could she
 
 COMMON LAW 
 
 make a binding contract-except for necessaries for 
 the benefit of her separate estate; and a contract 
 made by her being invalid would be no considera- 
 tion for a subsequent promise during widowhood. 
 If her husband neglected or refused to furnish sus- 
 tenance" for her and their children, therefore she 
 was deprived of the right to procure it by pledging 
 her credit which might be good; the most she could 
 do was to pledge, if possible, her husband's credit, 
 which might be bad, and thereby preclude her from 
 procuring necessaries of w^hich she might be in dire 
 need. Her husband might be bound by her acts as 
 his agent, duly authorized; but where payment to 
 her was completed, her authority must be stated. 
 By her own act her authority could not be enlarged; 
 and she could not execute a conveyance, even in 
 release of dower, otherwise than by joining with 
 her husband in a deed to a third person. No promise 
 of a wife could at common law be enforced against 
 her unless she had a separate estate, and then not 
 by a personal decree but only by treating it as an 
 appurtenant out of said estate; and then only for 
 her or its benefit. 
 
 The common law disabilities of a married 
 woman could not be avoided by any false represen- 
 tations with respect to her capacity, and no estoppel 
 would be raised thereby ; but in the management of 
 her separate property she w^ould be answerable for 
 the fraud of her agent, within the scope of his 
 agency, though she were ignorant of it. The dis- 
 abilities of a married woman are her personal privi- 
 lege, and in an action this must be specially pleaded; 
 and no one but the husband can object to a suit 
 against him by the wife, so that a judgment against 
 a firm of which he is a member is good if he does 
 not himself raise the defence. That is to say, the 
 c ommon lawjn its gr?.cious goodness and gallantry
 
 WOMAN UNDER THE LAW 
 
 toward woman, permits her to sue even her hus- 
 band, provided, how^ever, he does not object. The 
 wife must continually bear in mind that she and her 
 husband are regarded as one person, and that her 
 legal existence is suspended during marriage, or in 
 other words, is merged in that of the husband. 
 
 In equity, however, this common law principle 
 has been somewhat modified; and for some pur- 
 poses courts of equity recognize husband and wife 
 as distinct persons. She may, therefore, bring an 
 action at law against her husband, and upon present- 
 ing her case find that she has no standing in court, 
 for she and her husband are one and one cannot 
 maintain legal action against one's self; she may, 
 simultaneously, however, bring an action against her 
 husband in equity, file her papers in the same court, 
 present her case to the same judge, and she will be 
 heard ; for in the latter case she and her husband are 
 separate and distinct individuals, as viewed by 
 courts of equity. Thus, the numerical condition of 
 woman is, and ever w^as, anomalous at common 
 law. If husband and wife are one and they are 
 separated by a decree of nullity or divorce, which is 
 then the one? and, as one from one leaves nothing, 
 which is entitled to the characterization of zero? 
 
 At common law the wife is incapable, except in 
 a few special cases, of contracting a personal obliga- 
 tion, even w^ith her husband's consent; and any 
 attempt to do so is not simply voidable, but is ab- 
 solutely void. Her disabilities in this respect by 
 reason of her coverture cannot be overcome by any 
 form of acknowledgment or mode of execution, or 
 by uniting with her husband in the contract; and 
 where a special or limited power of making con- 
 tracts is given to a married woman she is still con- 
 sidered as prima facie unable to contract at all, and 
 the burden of proof is on the person relying on the 
 
 4
 
 COMMON LAW 
 
 validity of her contract to bring it within a statutory- 
 rule. . 
 
 "^ At common law, as a general rule, a married 
 woman cannot ratify hetppst-nuptial contracts dur- 
 ing coverture, or after its termination, except on a 
 new consideration. The moral obligation resting on 
 a woman to make good her unenforceable promise 
 given during coverture is not a sufficient considera- 
 tion to uphold the affirmation of the promise made 
 either subsequently, during coverture, after the re- 
 moval of her disability by statute or otherwise, or 
 after she becomes discovert. 
 
 At common law, as a general rule, a feme 
 covert could not dispose of her personalty by w^ill, 
 except under a marriage settlement or by her hus- 
 band's consent, or make a valid devise of lands with 
 dV without her husband's consent, to any person 
 whatever. 
 
 As a general rule, at common law, a feme 
 covert could neither sue nor be sued alone, but she 
 must sue or be sued in connection with her husband. 
 
 There was never any impediment to the acqui- 
 sition of property through purchase or otherwise, 
 by a married woman, arising from disability im- 
 posed by coverture, the only difficulty in the way 
 being of trifling consequence (?) namely, that at 
 common law the ownership passed irhmediately to 
 the husband; and while at common law a married 
 woman is capable of purchasing, yet the husband 
 may disagree and thereby void the purchase. 
 
 At common law a married woman is incapable 
 of exercising the right of suffrage, her existence for 
 such a purpose being merged in that of her husband. 
 
 At common law a married woman is incapable 
 of entering into a contract and hence at common 
 law for this reason alone she cannot be estopped by 
 contract or anything in the nature of a contract. 
 
 5
 
 WOMAN UNDER THE LAW 
 
 At common law if the husband is an aHen, 
 and has never been in the realm where the w^ife 
 resides, she may enter into contracts to sue and be 
 sued as a feme sole. Hence, a premium is placed 
 upon the marriage of women to foreigners by the 
 common law, for by so marrying there is no merger 
 or fiction of two in one and her legal status is the 
 same as before the marriage. 
 
 A w^ife whose husband has been banished or 
 transported for life as a convict, may make a will, 
 contract, and in everything act as a feme sole just 
 as if her husband w^ere dead, he being regarded in 
 such case as civilly dead. It is not difficult under 
 this rule to conceive of many cases v^here the com- 
 mon law might serve as a tremendous incentive to 
 wanton indifference on the part of property ow^ning 
 and oppressed wives as to their husband's welfare 
 with reference to banishment, transportation and 
 ' civil death. 
 
 As we have seen, the mere fact that the hus- 
 band has deserted the wife without leaving her the 
 means of support, or that they are living apart, 
 whether she is provided with a separate main- 
 tenance or not, will not be sufficient at common law 
 'y to enable the w^ife to contract, or to sue and be sued, 
 or otherwise act as a feme sole. 
 
 It is a well established principle of the com- 
 mon law that, if the husband abandons his wife and 
 abjures the realm, she may henceforth act as a feme 
 sole . Under this rule, why worry if as the shades of 
 evening fall, the husband fails to appear at the 
 threshold of his domicile, at the accustomed hour? 
 
 It has been held that the facts that the husband 
 is insane and is living apart from the wife in an 
 almshouse, will not confer upon the wife any power 
 to bind herself by contract. On the other hand, it 
 has been held that a wife whose husband is insane 
 
 6
 
 COMMON LAW 
 
 and is confined in an asylum outside the State in 
 which she resides, is thereby empowered to sue in 
 her own name for a p>ersonal injury, as though her 
 husband were civilly dead. Under this rule, w^omen 
 should be careful to have their insane husbands con- 
 fined without the jurisdiction of the State of their 
 domiciles. 
 
 At common law the husband is said to be the 
 head of the family, and as such the wife must love, 
 honor and obey him. Yet it is difficult to under- 
 stand how this would be possible, with the husband 
 one of the so called "fathers" of the common law, 
 excepting upon the principle of licking the hand 
 which beats one. 
 
 At common law the husband has, as a general 
 rule, a right to the custody of his wife, whose ac- 
 tions he may control and restrain, even by the use 
 of a rod, provided it be no thicker than his thumb. 
 Under this rule it would seem appropriate for pros- 
 p>ective brides to seriously consider the thumb 
 dimensions as well as other sterling and manly 
 qualities of their intended husbands. 
 
 Under the common law an unmarried female 
 was under the restraint of her parents, a married 
 one, under the restraint of her husband; in fact, it 
 seems that woman at common law was ever and 
 anon under the control and at the mercy of man. 
 Her suckling babe might be torn from her breast by 
 her husband, even though at the time he was living 
 apart from her and in adultery with another woman, 
 so great a favorite was woman under the common 
 law of England. 
 
 At common law it was not a criminal offence 
 
 to leave a wife without the means of support, and, 
 
 if so left she obtained work and by sacrifice, denial 
 
 and suffering succeeded in saving a few dollars and 
 
 deposited them in a Savings Bank, they became the 
 
 7
 
 WOMAN UNDER THE LAW 
 
 property of the husband. Even the ring, with 
 which he adorned her dainty and helpless finger at 
 the nuptials, became his property as soon as the 
 marriage ceremony was fully performed, and might 
 be taken for his debts by his creditors. 
 
 At common law the personal property which 
 the wife has in her possession in her own right at 
 the time of her marriage, or which comes into her 
 possession during the coverture, whether by gift, 
 bequest, or otherwise, vests absolutely and imme- 
 diately in the husband without any act on his part 
 asserting his marital rights, and he may dispose of it 
 as he pleases; it becomes immediately liable for his 
 debts, and on his death it goes to his personal repre- 
 sentatives. 
 
 The husband has the right to dispose of the 
 body of his deceased wife by sepulchre in a suitable 
 place. He has control of the body and may select the 
 proper place for the interment, regardless of the 
 wishes of his wife's parents or their relatives. And 
 this carries with it the right of placing over the spot 
 of burial a monument or memorial of such style and 
 form as he may desire. 
 
 At common law the husband upon marriage 
 becomes possessed in the right of the wife to her 
 chattels real, and he may forfeit, sell, assign, mort- 
 gage, or otherwise dispose of them as he pleases, 
 without her consent by any act in his lifetime, and 
 they are liable to be sold for his debts. Upon her 
 death they vest absolutely in him if he survives, and 
 his rights in these respects apply to equitable as 
 well as to legal terms for years. 
 
 As a general rule, the wife's choses in action 
 which belonged to her at the time of her marriage, 
 or which she acquires during coverture, belong, at 
 common law, to the husband. 
 
 At common law the husband is entitled not 
 
 8
 
 COMMON LAW 
 
 only to all the personal property which the wife 
 owns at the time of 1ier marriage, but which is re- 
 duced to possession during coverture, but also to 
 her services, and whatever she acquires by her skill 
 or labor during coverture belongs to him, as we 
 have seen. The husband's right in this respect is 
 absolute. If the wife makes, in her own name, a 
 purchase of her own, it enures to the husband s 
 ben^t and is liable for his debts, and if her earnings 
 are paid to her without the authority and against 
 ttie direction of the husband, he may, nevertheless, 
 recover them. Money due for the wife's services 
 ira chose in action, which, as a general rule, does 
 not require reduction into possession for the pur- 
 pose of defeating the wife's right. 
 
 *"' Even in equity the wife's earnings do not be- 
 come her property without a clear, express, irre- 
 vocable gift, or some distinct act of the husband 
 divesting himself of them, or setting them apart to 
 her separate use. 
 
 The wife has no interest in the husband's realty 
 except dower. 
 
 ""^nfnlurisdictions where, by the common law, the 
 wife is entitled to a distinctive share in the husband s 
 personalty, it is conceded that the husband has the 
 power to dispose absolutely of his personalty dur- 
 ing his lifetime by sale or gift, and if he reserves no 
 right to himself, the transfer will prevail against the 
 wife, though made to defeat her claim. 
 
 "Pin money" so called is an allowance made to 
 the wife by the husband in his great mercy, aided 
 by the Court, for personal dress, decoration, and 
 ornament; this allowance being intended for the 
 adornment of the wife and not for accumulation, 
 the acceptance from the husband of clothes and 
 other necessaries, will be a bar to any arrears of pin 
 money during such time as she is so provided. 
 
 9
 
 WOMAN UNDER THE LAW 
 
 Sometimes the allowance is made out of the wife's 
 profits and savings from her housekeeping. Some- 
 times the husband makes an arrangement for pin 
 money by marriage settlement. 
 
 It is a well established doctrine of the common 
 law that husband and wife cannot make a valid con- 
 tract with each other during coverture. The reason 
 for the doctrine generally assigned is that the wife 
 having lost her legal entity, she and her husband 
 are one person in legal contemplation and it would 
 be absurd for a person to enter into a contract with 
 himself. 
 
 At common law the wife had no power to ap- 
 point a third person to act in her stead, and hence 
 it is said she could not authorize her husband to 
 become her agent, but, even if she had been given 
 the power to appoint a third person to act in her 
 stead, it is difficult to understand how she could 
 have authorized her husband to so act, because he 
 would not be a third person, under the rule making 
 husband and wife one person. 
 
 At common law the wife cannot maintain a 
 civil action to recover damages against the husband 
 for personal injuries, as, for instance, assault and 
 battery, false representation or slander, committed 
 upon her during coverture, or even after the dis- 
 solution of marriage by divorce; nor, it has been 
 held, could she maintain such action against one 
 who acts with her husband, and under his direction, 
 in doing the injury. 
 
 At common law it is the duty of the husband to 
 support the wife, and, if he refuses or neglects to 
 supply his wife with what is necessary, she may 
 procure it, as we have seen, for herself on his ac- 
 count and at his charge, provided he has any cre- 
 dit; otherwise she must go w^ithout. 
 
 Necessaries, under the above rule, consist of
 
 COMMON LAW 
 
 food, drink, clothing, washing, medical attendance, 
 and a suitable place of residence, it has been held, 
 however, that the services of a clairvoyant, or of 
 persons in mesmeric dreams, were not necessaries. 
 Those were regarded as "fancy articles." 
 
 In England the wife has the same power of 
 pledging her husband's credit for the costs due to 
 her solicitor in a suit for a dissolution of a marriage 
 as the costs in a suit for divorce. But legal services 
 rendered to a wife are not by great weight of author- 
 ity in the United States recognized at common law 
 as coming within the list of articles known as neces- 
 saries, for the obvious reason that necessaries are 
 to be provided by a husband for his wife to sustain 
 her as his wife and not to provide for her future 
 condition as a single woman, or, .perhaps, as the 
 proud and happy wife of another. 
 
 At common law the person of a married 
 woman during coverture could be taken in execu- 
 tion upon a joint judgment against her and her 
 husband for her ante-nuptial debts whether tha 
 husband was or was not arrested. 
 
 Her common law disability is not removed by 
 the so-called married woman's acts which operate 
 only to give her such capacity as is expressed in 
 them. 
 
 The rigor of the common law disability of a 
 married woman, and the merging of her individual 
 and property rights in her husband, gave rise to cer- 
 tain equitable remedies against her husband, in- 
 tended, to secure at least a portion of her property 
 to the use of herself and her children; but to the 
 ordinary equitable estate of a married woman, the 
 marital rights of the husband attach. 
 
 The common law has been called a great insti- 
 tutkon, and, no doubt, it does embody the thought 
 and wisdom of many great minds; but has it been 
 
 11
 
 WOMAN UNDER THE LAW 
 
 fair to women? In this connection it may be in- 
 teresting to learn something of what is meant by 
 the term "common law. " 
 
 It is considered to be that system of law or form 
 of the science of jurisprudence which has prevailed 
 in England and in the United States of America, in 
 contradistinction to other great systems, such as the 
 Roman or Civil law, — or, those principles, usages 
 and rules of action applicable to the government 
 and security of persons and property, which do not 
 rest for their authority upon any express or positive 
 declaration of the will of the legislature, — or, the 
 body of rules and remedies administered by courts 
 of law, technically so-called, in contradistinction to 
 those of equity and to the canon law. Generally, 
 the law of any country, to denote that which is 
 common to the whole country, in contradistinction 
 to laws and customs of local application. 
 
 Under the common law neither the stiff rule of 
 a long antiquity, on the one hand, nor, on the other, 
 the constant changes of a present arbitrary power 
 are allowed ascendency, but, under the sanction of a 
 constitutional government, each of these is set off 
 against the other. So that the law of the people, as 
 it is gathered both from long established custom 
 and from the expression of the legislative power, 
 gradually forms a system, supposed to be just, be- 
 cause it is the deliberate will of a free people, except- 
 ing those who are not permitted to express their 
 wills ; supposed to be stable, because it is the growth 
 of centuries; progressive because it is a men^ ^le to 
 the Qonstant revision o f such of the peo pje^sjiavg^^ 
 right to expression concerning i t. 
 
 A full idea of the genius as well as the pecu- 
 liarities of the common law cannot be gathered 
 without a survey of the philosophy of English and 
 American history. Perhaps the most important of 
 
 12
 
 COMMON LAW 
 
 the narrower senses in which the phrase "common 
 law" is used, is that which it has when used in con- 
 tradistinction to statute law, to designate unw^rit- 
 ten as distinguished from written law. It has been 
 called the law which derives its force and authority 
 from the universal consent and immemorial prac- 
 tice of the people. Of course, it derives no power 
 whatever from those who are not permitted to ex- 
 press their consent. It has never received the sanc- 
 tion of the legislature by an express act, which is 
 the criterion by which it is distinguished from the 
 statute law. 
 
 The statutes are the expression of a law in 
 a w^ritten form, which form is essential to the 
 statute. The decision of a court which establishes 
 or declares a rule of law may be reduced to writing 
 and published in the Reports; but this report is not 
 the law; it is but evidence of the law; it is but a 
 written account of one application of a legal prin- 
 ciple, which principle, in the theory of the common 
 law, is still unwritten. However artificial this dis- 
 tinction may appear, it is, nevertheless, of the ut- 
 most importance, and bears continually the most 
 wholesome results. It is only by the legislative 
 power that law can be bound by phraseology and 
 by forms of expression. The common law eludes 
 such bondage; its principles are not limited nor 
 hampered by the mere forms in which they may 
 have been expressed, and the reported adjudications 
 declaring such principles are but the instances in 
 which they have been applied. The principles them- 
 selves are still unwritten, and should be ready with 
 all the adaptability of truth to meet every new and 
 unexpected case. 
 
 It is said that the rules of the common law are 
 flexible, but we frequently find Judges stating what 
 
 13
 
 WOMAN UNDER THE LAW 
 
 the law is instead of what it ought to be, as if it 
 were as inflexible as a rod of iron. 
 
 The statute or w^ritten law is naturally in- 
 flexible and has no self-contained power of adapta- 
 tion to cases not foreseen by legislators; so that in 
 course of time they became supplemented, ex- 
 pleuned, enlarged, or limited by a series of adjudica- 
 tions; until, at last, it may appear to be merely the 
 foundation of a larger super-structure of unwritten 
 law^. It naturally follows, too, from the less definite 
 and precise forms in which the doctrine of the un- 
 written law stands, and from the proper hesitation 
 of courts to modify recognized doctrines in new 
 exigencies, that the legislative power frequently 
 intervenes to declare, to qualify, or to abrogate the 
 doctrines of the common law. Thus, the written 
 and the unwritten law, the statutes of the present 
 and the traditions of the unholy past interlace and 
 react upon each other. Historical evidence sup- 
 ports the view which these facts suggest — that 
 many of the doctrines of the common law are but 
 the common law form of antique statutes, long 
 since overgrown and imbedded in judicial decisions. 
 While this process is doubtless continually going on 
 and to a very considerable extent, particularly in the 
 United States, the doctrines of the common law are 
 being reduced to the statutory form, w^ith such 
 modifications, of course, as the legislature may 
 choose to make. 
 
 In a still narrower sense, the expression "com- 
 mon law" is used to distinguish the body of rules 
 and of remedies administered by courts of law^ tech- 
 nically so called in contradistinction to those of 
 equity administered by courts of chancery, and to 
 the canon law, administered by the ecclesiastical 
 courts. In this country the common law^ of England 
 has been adopted as the basis of our jurisprudence 
 
 14
 
 COMMON LAW 
 
 in all the states except Louisiana. Perhaps this is 
 because Louisiana is, or has been called, the 
 "female" state, and has a decent regard for her sex. 
 
 The common law of England is not in all 
 respects to be taken as that of the United States or 
 of the several states. Its general principles are 
 adopted only so far as they are applicable to our 
 situation, and the principles upon which Courts dis- 
 criminate between what is to be taken and what is 
 to be left have been much the same, whether the 
 common law was adopted by constitution, statute 
 or decision. It cannot be overlooked that notwith- 
 standing the broad language of the Constitution 
 there were many particulars of the common law of 
 England as it stood prior to 1 776, which never have, 
 in fact, been regarded by our courts as in force in 
 this country. 
 
 In criminal law the common law is generally 
 in force in the United States to some extent, and, 
 while it is in some states held that no crime is 
 punishable unless made so by statute, there are, 
 in many states, general statutes resorting to the 
 common law for all crimes not otherwise enumer- 
 ated, and for criminal matters generally. When 
 there is no statutory definition of a crime named, 
 the common law definition is generally resorted to; 
 as atsTTare its rules of evidence in criminal cases for 
 all practice as well as principles in the absence of 
 statutes to the contrary. And in Louisiana, although 
 not recognized in civil matters, the common law in 
 criminal cases is expressly adopted. It has been 
 held to prevail in the District of Columbia as to 
 theft, in Maryland as to conspiracy, in' New Hamp- 
 shire as to kidnapping, and in Maine as to homicide 
 with intent to kill. 
 
 15
 
 WOMEN UNDER THE LAW 
 
 There is no common law of the United States 
 as a distinct sovereignty, and, therefore, there are 
 no common law offences against the United States. 
 
 16
 
 /^^ 
 
 (^> 
 
 CHAPTER II 
 MARRIAGE SETTLEMENTS 
 
 A woman and man may make valid contracts 
 with each other in contemplation of marriage. Such 
 contracts are not uncommon and it is of great im- 
 portance that every woman, intending to enter 
 marriage, should have something more than a vague 
 idea concerning them. 
 
 These contracts are known in the law as ante- 
 nuptial agreements, or marriage settlements, and 
 relate, almost exclusively, to the respective property 
 rights of the parties. 
 
 Ante-nuptial contracts are frequently made m 
 cases where there are children by a former marriage 
 which the father is desirous of protecting by making 
 some legal provision for them respecting his prop- 
 erty. 
 
 Property may be settled upon the prospective 
 bride even though the husband is in debt at the 
 time; and the personal property of the wife, con- 
 sisting of her patrimonial fortune in the hands of 
 her guardian whilst it remains separate, capable of 
 being identified and distinguished, which has not 
 been reduced to possession by the husband and 
 which could not be reached by his creditors by any 
 direct process of attachment, may. by the joint act 
 of husband and wife, be settled and secured to the 
 wife and her children, and such an assignment can- 
 not be set aside as fraudulent against creditors. 
 
 The validity of a marriage entered into in 
 regular form, however, is unaffected by the pre- 
 
 17
 
 WOMAN UNDER THE LAW 
 
 liminary agreement of the parties not to live to- 
 gether. It is against the policy of the law that the 
 validity of the contract of marriage or its effect upon 
 the status of the parties should be in any way 
 affected by their ante-nuptial or collateral agree- 
 ments. An ante-nuptial agreement, therefore, 
 never to live together as husband and wife, is held 
 to be a mere nullity so far as the marriage contract 
 is concerned. These contracts are not resorted to 
 as frequently as a means for protecting the wife as 
 they were prior to the legislation whereby her rights 
 were enlarged, but every woman about to enter 
 upon the marriage state should inform herself as to 
 her rights and liabilities thereunder. 
 
 It must be borne in mind that they may be used 
 to protect the rights of the man as well as those of 
 the woman. 
 
 The validity of such settlements may be espe- 
 cially affected by the form of the settlement, the 
 execution and recording thereof, the capacity of the 
 parties thereto, the consideration upon which it is 
 made, and the fairness of the transaction; which 
 matters will now^ be discussed. 
 
 A marriage contract need not contain tech- 
 nical words; it need only appear that there was a 
 final enforceable promise in regard to marriage 
 rights in, to or over property, or in consideration of 
 marriage. But a marriage settlement is subject to 
 the operation and effect of all general laws as to 
 the recording of instruments affecting rights in real 
 estate or personalty, and there are generally special 
 statutes besides, w^hich must be complied w^ith. 
 
 In some states statutes require marriage con- 
 tracts to be witnessed, acknowledged, recorded, ac- 
 companied w^ith a schedule, etc. In general, the 
 noncompliance w^ith such statutes renders a mar- 
 riage contract void as to creditors only; between 
 
 18
 
 MARRIAGE SETTLEMENTS 
 
 the parties it is valid although unrecorded, and 
 as to creditors, it is valid if they have actual notice. 
 Acknowledgement, when required, cannot be made 
 after marriage. If execution be proved, delivery 
 will be presumed. 
 
 The English Statute of Frauds, providing that 
 no agreement in consideration of marriage shall be 
 enforced unless in writing, and similar statutes, are 
 in force in many states. Under such statutes 
 if the consideration be other than marriage, the 
 statute does not apply. A note or memorandum of 
 the contract, as by means of letters, etc, if it con- 
 tains the terms of the contract, the consideration, 
 as well as the promise, is sufficient a writing, and 
 binds the parties; though, if made after the mar- 
 riage, not intervening creditors. The contract need 
 be signed only by the party to be charged. If the 
 contract is wholly performed, the statute does not 
 apply; as, if A, having orally promised to give B 
 certain slaves when B married C, gives him the 
 slaves, B can hold them against As executor. So 
 if it has been performed by the party seeking to 
 charge (not if only by the party sought to be 
 charged) ; as, where A and B about to marry agree 
 orally that A shall have B's notes and bonds, ab- 
 solutely, if he pays her a certain allowance during 
 her life; after her death her administrators cannot 
 claim such notes, etc., on the ground that the con- 
 tract was not in writing. But marriage itself is not 
 part performance. If the statute is not pleaded, the 
 court will decree performance of a marriage con- 
 tract, though oral. 
 
 The capacity of the parties, with certain ex- 
 ceptions as to age, is that required for the execution 
 of any other contract. 
 
 Statutes sometimes enable infants to make 
 valid marriage contracts to bar dower. In the 
 
 19
 
 WOMAN UNDER THE LAW 
 
 absence of such a statute, the marriage contract of 
 an infant is binding on the other party (if adult) ; 
 but voidable by the infant on attaining full age, or 
 within a reasonable time thereafter, or by the in- 
 fant's successors in estate, or privies in blood. If 
 not beneficial, it is absolutely void. Where the 
 husband took her personalty absolutely by mar- 
 riage, the w^ife's contract as to her personalty has 
 been held valid. Infancy can be objected to only 
 by the parties themselves. An infant may make a 
 valid marriage contract through her guardian. 
 
 The consideration of such a contract may be 
 any valuable consideration, reciprocal stipulations, 
 or the marriage itself. 
 
 Marriage is a consideration of the highest 
 value, and any contract or promise which brings 
 about, or helps to bring about, a marriage is bind- 
 ing when the marriage has taken place, although 
 it be invalid, and even when it does not take place 
 owing to the settlors death; against the settlor and 
 those claiming under him, in favor of the husband 
 and wife, their issue, the issue of a former marriage, 
 collaterals, and even strangers; against the settlor's 
 creditors, in favor of the husband and wife and their 
 issue, although such issue were born before the mar- 
 riage, but not collaterals, etc. Although an existing 
 marriage is no consideration, a contract in consid- 
 eration of a marriage made after the marriage, in 
 pursuance of and conforming with an agreement 
 made before, is as valid against the settlor as if made 
 before; but is valid against intervening creditors 
 only if the agreement made before w^ere enforce- 
 able. When another consideration is expressed in 
 the contract, marriage cannot be shown to have 
 been the consideration; and where marriage is the 
 consideration, the failure of the wife's fortune can- 
 not be alleged as a failure of consideration. 
 
 20
 
 MARRIAGE SETTLEMENTS 
 
 As between the parties, any concealment by 
 one party as to the value of his or her property will 
 render a marriage contract relating thereto voidable. 
 Persons about to marry do not, like buyer and seller, 
 deal at arms' length, but stand in a confidential rela- 
 tion requiring the exercise of the greatest good faith. 
 If the provision secured to the wife is manifestly 
 unreasonable and disproportionate to the means of 
 the intended husband, it raises a presumption of 
 intended concealment, and throws on him the bur- 
 den of disproving the presumption. 
 
 As against creditors, if both parties intend, or 
 if the settlor intends and the settlee has notice of 
 such intent to hinder, delay or defraud his creditors, 
 the contract, to the extent at least of the settlor's 
 debts, is void, no matter what the consideration; 
 but not if the settlee has no such intent or notice; 
 and mere knowledge of the settlor's indebtedness 
 or insolvency will not amount to fraudulent intent 
 or notice, though they may go to prove it, just as 
 the unreasonableness of the settlement may. A 
 provision by which the settlor retains the property 
 until his insolvency is void. 
 
 If marriage precipitates insolvency, it is all 
 wrong; if insolvency precipitates marriage it is all 
 right. 
 
 A marriage contract is not merged or destroyed 
 by the marriage of the parties. If executed, it will 
 be upheld, in equity, and, after the dissolution of 
 the marriage, at law; if executory, it may be specif- 
 ically enforced during marriage, in equity, or sued 
 upon after the dissolution of marriage, at law. If 
 it carries out the intentions of the parties it cannot 
 be modified or set aside unless all the parties in- 
 terested consent, or are brought before the court; 
 if it does not carry out such intentions, it may be re- 
 formed in equity. If lost or destroyed, equity will 
 
 21
 
 WOMAN UNDER THE LAW 
 
 revive it, so, if countermanded fraudulently by the 
 husband before marriage, its execution will be de- 
 creed. A party does not lose his rights upon it by 
 misconduct, or by failure to perform his part, or by 
 divorce alone; but he may by long acquiescence. 
 The issue, when interested, have a right to have it 
 enforced. 
 
 In construing marriage contracts the true in- 
 tent of the parties will be carried out liberally, 
 without regard to the strictly technical meanings 
 of words used; when possible, issue will be included 
 in the benefits of the contract, and as issue, chil- 
 dren of a former or subsequent marriage, but not 
 grandchildren. Statutes requiring the recording of 
 such contracts will be strictly construed, and only 
 in general for the protection of creditors. 
 
 A marriage contract, if valid where made, is 
 valid everywhere, unless prohibited in the place 
 where it is sought to be enforced. So that when 
 such a contract is valid in matter and in form (re- 
 corded, etc., if necessary) by the law of the place 
 where it is made, its validity is not affected by the 
 subsequent removal of the parties w^ith the property 
 into a State where it is not in form; but it may be 
 invalid if in such place it is unlawful per se. 
 
 A marriage contract invalid per se where made 
 is invalid everywhere, but if invalid because want- 
 ing in form where made, but valid where it is sought 
 to be enforced, it may in the latter place be enforced. 
 
 A marriage contract as to its effect is governed 
 by the law of the place where it is made, unless it is 
 made by the parties with the intention of having it 
 performed elsewhere; in which case it is governed 
 by the law^ of the place where it is to be performed. 
 
 A marriage contract to convey or charge real 
 estate must be valid in matter and form by the law 
 of the place where the land lies. 
 
 22
 
 MARRIAGE SETTLEMENTS 
 
 The term post-nuptial settlement used in this 
 article includes all transfers of property, direct or 
 indirect, between husband and wife, as well as all 
 settlements made on them by third parties, such as 
 have already been discussed. Transfers between 
 husband and wife may depend for their validity 
 upon; (1) the capacity of husband and wife to 
 contract together (see chapter on Husband and 
 Wife); (2) the form of the settlement; (3) the 
 consideration; (4) the absence of fraud or duress 
 between the parties; (5) the absence of fraud on 
 the rights of creditors. Such transfers may be 
 wholly or partially valid or invalid. Thus, post- 
 nuptial settlements are usually valid between the 
 parties; one may be binding on the settlor, his heirs 
 and representatives, and his voluntary assignees, 
 but invalid as against his creditors; valid as to some 
 (subsequent) creditors; but invalid as to other 
 (existing) creditors; valid as to part of the property 
 settled, but invalid as to the rest; invalid as an ab- 
 solute grant, but valid as a security. Whether a 
 settlement is, when it is valid between the parties, 
 but otherwise invalid, void, or voidable, does not 
 seem to be clearly determined. Though "void" is 
 usually the word used, the better opinion seems to 
 be that it is voidable only. For, a bona fide pur- 
 chaser for value from a settlee whose title is invalid 
 against creditors, gets a valid title even against such 
 creditors, which could not be the case if the original 
 settlement was absolutely void against them; and 
 this is true of both realty and personalty; so prop- 
 erty previously conveyed in fraud of creditors does 
 not pass by a deed from the settlor for the benefit of 
 such creditors; so, only a creditor can allege the in- 
 validity of the settlement. The reason the word 
 void" is so often used is that in the great mass of 
 cases no special proceeding need be resorted to to 
 
 23
 
 WOMAN UNDER THE LAW 
 
 have a settlement declared void, but the question 
 of validity may be determined in any proceeding at 
 law or in equity to which both the settlor and settlee 
 or their respective successors are parties. 
 
 There is no particular form necessary, nor are 
 technical words required, in drawing post-nuptial 
 settlements, except where statutes apply. Some of 
 the different forms which transfers are likely to 
 take are discussed later in this chapter. 
 
 In some states all transfers of property be- 
 tween husband and wife must be recorded, or rati- 
 fied by a court; in others, a wife must file a state- 
 ment of all her separate property of which her hus- 
 band has possession; and generally a married 
 woman cannot release her marriage rights except by 
 w^riting or deed. But acts requiring record of mar- 
 riage settlements apply only to those in considera- 
 tion of marriage, not to post-nuptial settlements. 
 Otherwise the formalities are the same as in trans- 
 fers between strangers. 
 
 A consideration is necessary to render an ex- 
 ecutory contract enforceable, whether at law or in 
 equity, and to render an executed settlement valid 
 as against creditors; but voluntary settlements or 
 executed gifts are binding between the parties. A 
 voluntary settlement is one without consideration. 
 Love and affection is a meritorious consideration ; it 
 serves often to explain a grantor's purpose and to 
 disprove a fraudulent intent; it is a good considera- 
 tion as against the grantor and his representatives; 
 but it is not a valuable consideration, it w^ill not sus- 
 tain an executory contract at all, or a settlement in 
 prejudice of the rights of creditors. Existing mar- 
 riage is a consideration of the same kind; as is a 
 husband's desire to make provision for the support 
 he owed his w^ife. 
 
 24
 
 MARRIAGE SETTLEMENTS 
 
 Each of the following is a valuable considera- 
 tion: a release of dower, or homestead, previous 
 settlement, or separate property rights; an ante- 
 nuptial enforceable promise to make a settlement; 
 an existing debt though barred by limitations; a 
 wife's equity of settlement; use of property with un- 
 derstanding that it should be replaced; cash received 
 as a loan; rents collected as agent; wife's right of 
 survivorship in mortgage to her. It is a valuable 
 consideration for a settlement that a court of equity 
 would have compelled its execution. If husband 
 and wife, each of them having interests, no matter 
 how much, or of what degree, or of what quality, 
 come to an agreement which is afterwards em- 
 bodied in a settlement, it is a bargain and a transac- 
 tion on valuable consideration. 
 
 Elach of the following is a mere nominal con- 
 sideration, really no consideration at all. The wife's 
 property which by law is the husband's; dower 
 previously voluntarily released; property previous- 
 ly voluntarily given up; cohabitation, when this is 
 a duty; the wife's services when these belong to 
 her husband. 
 
 As a general rule, if a consideration is real 
 (valuable), its adequacy is not enquired into. But 
 inadequacy of consideration is evidence of fraud. 
 And, as against creditors, the consideration for a 
 settlement must be fair and reasonable; the payment 
 of a trivial sum, or such disproportionate considera- 
 tion as two hundred and seventy dollars, for prop- 
 erty worth two thousand dollars, or four hundred 
 dollars for property worth eighteen hundred dollars, 
 will not defeat creditors' rights; as to them the 
 settlement is voluntary to the extent of the excess; 
 and though, if the settlee has acted in good faith, 
 he or she will be protected as a creditor, and the 
 
 25
 
 WOMAN UNDER THE LAW 
 
 settlement treated as a security for the actual con- 
 sideration. 
 
 In the case of bad faith he or she will not be 
 protected at all. 
 
 Formerly a married woman w^as deemed en- 
 tirely under her husband's control, and incapable of 
 voluntary acts in his presence, and even now her 
 torts and crimes committed in his presence are pre- 
 sumed committed under his coercion. So in the 
 case of contracts. These at common law^ were void, 
 and good in equity only if proved to have been fairly 
 and freely made. But now, although the greatest 
 good faith is required in dealings betv/een husband 
 and wife, which are treated much as dealings be- 
 tween trustee and cestui que trust are, and in case 
 of a gift by her to him, or an inadequate considera- 
 tion, or an advantage secured by him, the burden 
 of proof is on him to show that the transaction was 
 freely and deliberately concluded; the mere fact that 
 he is her husband does not render it a fraud for him 
 to take property from her ; but she must prove fraud 
 or undue influence, and allowance will be made for 
 their intimate relation. The husband's fraud or 
 duress will not affect the validity of a wife's transfer 
 in the hands of a bona fide purchaser for value; she 
 cannot have her deed to a third party set aside on ac- 
 count of her husband's conduct, unless they were 
 confederates, or the husband acted as such third 
 party's agent in obtaining the deed. In spite of 
 fraud, equity will sustain a settlement between hus- 
 band and wife if for the benefit of them both. 
 Generally, courts of equity alone will afford them 
 relief. 
 
 Husband and wife are one, and it is a great 
 temptation for a husband to place property in his 
 wife's name in order to secure himself. Innumer- 
 able cases have therefore arisen where the creditors 
 
 26
 
 MARRIAGE SETTLEMENTS 
 
 of a husband have attached transfers to his wife 
 and sought to have them declared void, and the 
 principles applicable to such cases are quite well de- 
 fined. A transfer by which the grantor hinders, 
 delays or defrauds his creditors is called a "fraudu- 
 lent conveyance." Such conveyances are of two 
 kinds, those which are made with the intent to 
 evade creditors, where there is fraud in fact, and 
 those where there is no such intent, but which being 
 voluntary, prejudice creditors* rights, where there 
 is fraud in law^. The usual rules as to fraudulent 
 conveyances apply generally to conveyances be- 
 tween husband and wife. But the subject is too 
 vast to be minutely treated herein. 
 
 Statutes Protecting Creditors. — The statutes 
 relating to this subject which are constantly referred 
 to, which are merely declaratory of the common law, 
 which, as a part of the common law^, are in force in 
 many states, and which form the basis of most 
 modern statutes against fraudulent conveyances, 
 are: 13 Eliz., ch. 5, and 27 Eliz., ch. 4. Statute 13 
 Eliz., ch. 5, provides that all transfers made to the 
 end, purpose, and intent to del"ay, hinder or defraud 
 creditors and others of their lawful rights are "ut- 
 terly void * as against such creditors and others; but 
 does not affect bona fide transfers for value. Statute 
 27 Eliz., ch. 4, provides that all transfers made for 
 the intent and purpose of defrauding subsequent 
 purchasers are "utterly void" as against such sub- 
 sequent purchasers; but does not affect bona fide 
 transfers for value. These statutes are construed 
 liberally, and alike at law^ and in equity; but while 
 at common law fraudulent intent was a mere ques- 
 tion of fact, under these statutes it became in part a 
 question of law. The general statutes on the sub- 
 ject in the several states are given the same effect 
 as these statutes in spite of somewhat different 
 
 27
 
 WOMAN UNDER THE LAW 
 
 wording; but the modern system of public records 
 has greatly diminished the importance of Statute 
 27 Eliz., ch. 4. There are, moreover, such statutes 
 as that in Maryland, which provide that no acquisi- 
 tion of property by wife from husband shall be 
 valid if made in prejudice of the rights of his credit- 
 ors, and these seem to add nothing to the common 
 law. Bankruptcy acts may also affect such convey- 
 ances, for a conveyance by a husband to his wife of 
 all his property is an act of bankruptcy; and other 
 collateral statutes may protect creditors. 
 
 Elxisting Creditors. — If a debtor transfers his 
 property for adequate valuable consideration, his 
 creditors cannot complain unless his actual inten- 
 tion in making the transfer was to defeat or preju- 
 dice their rights, and was shared in by his grantee. 
 Still, in the absence of statute, a mere preference of 
 a bona fide creditor is lawful, irrespective of intent, 
 and even though the debtor divests himself of all 
 his property. But where the transfer is voluntary, 
 the law raises, in favor of existing creditors, a pre- 
 sumption of fraudulent intent, which in some old 
 cases, and even now in some states, is, irrespective 
 of the amounts of indebtedness, of the debtors 
 means, and of the property transferred, conclusive; 
 but which, by the great weight of authority, may be 
 rebutted by showing the purity of the grantor's in- 
 tent and the reasonableness of the provision. The 
 rule as stated by the Supreme Court of the United 
 States reads: "The ancient rule that a voluntary 
 post-nuptial settlement can be avoided if there was 
 some indebtedness existing has been relaxed, and the 
 rule generally adopted in this country at the present 
 time (1873) will uphold it if it be reasonable, not 
 disproportionate to the husband's means, and clear 
 of any intent, actual or constructive, to defraud 
 creditors"; and this rule is generally adopted, even 
 
 28
 
 MARRIAGE SETTLEMENTS 
 
 where a statute expressly provides that a transfer 
 from husband to wife "in prejudice of the rights of 
 subsisting creditors" shall be invalid. A husband's 
 love and affection for his wife, and a desire to secure 
 her support, is ample reason for a gift to her; still 
 his actual intention is a mere question of fact; but 
 whether the gift is a reasonable one considering his 
 circumstances seems to be a question of law. It is 
 reasonable if his debts are trifling, or if he retains 
 enough to readily pay them all; but unreasonable if 
 his debts are so great as to embarrass him, or if he is 
 insolvent, or if the gift leaves him insolvent, or if he 
 denudes himself of all his property, or if the prop- 
 erty he conveys is easily accessible to creditors, 
 while that which he retains, though ample in 
 amount, is inaccessible to them. 
 
 Subsequent Creditors. — A settlement is valid 
 as against those who become creditors after it is 
 made, unless there is an actual intent to defraud 
 them; and if the settlement is on valuable consid- 
 eration, unless the intent is shared in by the 
 grantee. Transferring property with the intention 
 of thus withdrawing it from the operation of debts 
 about to be assumed is fraud in fact, and the transfer 
 of all one's property is strong evidence of such 
 fraud. A subsequent creditor cannot attack a 
 settlement on the ground that it defrauds existing 
 creditors; but if a settlement is set aside by existing 
 creditors, subsequent creditors may come in pari 
 passu with them. 
 
 Property Exempt. — Any property of a hus- 
 band, personal or real, which his creditors could not 
 proceed against, he may, as against them, settle 
 upon his wife. Thus, there is no fraud, in law or 
 in fact, in a conveyance by him to her of the home- 
 stead; or of her earnings, or cattle if they are ex- 
 empt; or of her choses in action, which are not his 
 
 29
 
 WOMAN UNDER THE LAW 
 
 till reduced to possession, and which his creditors 
 cannot compel him to so reduce. 
 
 Fraudulent possession is discussed in the 
 chapter on Husband and Wife. 
 
 The remedies for enforcing a postnuptial settle- 
 ment depend largely upon the modes of procedure 
 in the different states. As between husband and 
 wife there are some special disabilities which have 
 been discussed under title Husband and Wife. 
 Usually such settlements are enforced in equity. 
 There the wife may have it specifically performed, 
 or rectified; and where she and her husband have 
 conveyed her property in trust for her sole and 
 separate use, she may after his death have it con- 
 veyed back to her ; so when he has bought property 
 in his name with her money, she may compel him to 
 convey to her. But the grantor cannot revoke a 
 settlement or have it set aside, except for fraud. 
 No one not a party or creditor has any remedies at 
 all. 
 
 As to Creditors. — Courts of law and equity 
 have concurrent jurisdiction over fraudulent con- 
 veyances; a creditor may treat the settlement as 
 voidable, and apply to equity to have it set aside, 
 or as void and attach personalty, or having bought 
 the realty sue in ejectment. But if the grantor has 
 never held the legal title, as where a husband has 
 made a purchase and taken the deed in his w^ife's 
 name, the creditor must proceed in equity; so in 
 the case of bona fide valuable, but inadequate, con- 
 sideration. 
 
 Deeds of settlement between husband and 
 wife, especially in the case of separation, are com- 
 mon, and though it is usual to make them through 
 the intervention of trustees, this is not necessary, 
 but where a trustee is needed the husband is treated 
 as such. Such deeds are always good in equity if 
 
 30
 
 MARRIAGE SETTLEMENTS 
 
 equitable. To exclude the husband's marital rights 
 in real estate the deed should contain express words, 
 but every gift of personalty from husband to wife 
 is presumed to be for her sole and separate use. In 
 other respects such deeds are like deeds betw^een 
 strangers; for example, they may be delivered in 
 escrow, and they are binding on the parties by estop- 
 pel. All the property rights of the parties are often 
 settled by deed. 
 
 Gifts of personalty between husband and wife 
 are usually good in equity if not at law; but as they 
 are transfers of property without consideration, 
 they are invalid as against creditors, w^hose rights 
 they prejudice. Gifts causa mortis differ from gifts 
 inter vivos only in that the former are revoked if 
 the donor does not die as expected, and are there- 
 fore not separately discussed. The two essentials 
 of a gift are, ( I ) the donor's intent to vest the title 
 in the donee; (2) the execution of such intent by 
 actual or constructive delivery. If a gift is good 
 only in equity, it must be fair, reasonable, not ex- 
 travagant; in fine, equitable. But once executed a 
 gift is irrevocable; except under the civil or Spanish 
 law, 
 
 (a) The donor's intention to vest the title 
 in the donee must be clearly proved, and is a mere 
 question of fact, as in the case of gifts between 
 strangers. But special presumptions arise from the 
 relation of the parties. Thus, if a husband buys 
 property in his w^ife's name, a gift thereof to her is 
 prima facie presumed; so if he takes a promissory 
 note for a debt due him payable to her, or puts stock 
 in her name, or deposits money to her credit; so if 
 a note is taken payable to him and her, though he 
 may dispose of it during his life, and perhaps by 
 will, she takes it as survivor. Still, these presump- 
 tions may always be rebutted and the real intent 
 
 31
 
 WOMAN UNDER THE LAW 
 
 shown. On the other hand, when a w^if e consents to 
 her husband's expending her money, a gift of it to 
 him is presumed, unless she shows that their intent 
 was different; for example, that he received it as 
 her agent, or as a loan. So a gift is presumed if by 
 her consent he changes her realty into personalty, 
 where personalty is by law his; but the mere pos- 
 session and user of her chattels by him is of itself 
 no evidence of a gift from her to him. 
 
 (b) Delivery Must be Clearly Proved. — A 
 
 mere declaration, as, "I give you this property," 
 without delivery is merely an inchoate gift, and is 
 treated as a promise to make a gift — a promise 
 which not even courts of equity enforce. The same 
 is true though the declaration be in w^riting, but not 
 if the writing be under seal, by virtue of the prin- 
 ciple of estoppel. Declarations are usually evidence 
 only of intent; delivery must be proved by facts 
 showing actual, constructive, or symbolic change 
 of possession. When, however, a husband pur- 
 chases property for his w^ife as a gift, delivery to 
 him is delivery to her, and subsequent possession 
 by him is her possession. So that, when a husband 
 bought a horse for his wife, the gift w^as upheld, 
 though he kept the horse in his stable. But it might 
 have been otherw^ise had he first bought it for him- 
 self and then given it to her, as when he gave her a 
 wagon, but retained possession thereof and used 
 it as before. Except in the case of personal orna- 
 ments and apparel, it is very difficult to prove actual 
 delivery between husband and wife who are living 
 together; as, for example, delivery of household 
 furniture, and especially so when the question of 
 fraud against creditors arises. And it may be said 
 that the only safe delivery is by instrument under 
 seal as between the parties, and by recorded instru- 
 ment as against creditors. Delivery by order is not 
 
 32
 
 MARRIAGE SETTLEMENTS 
 
 perfected until the order is accepted or executed; 
 until such time it may be revoked and is revoked by 
 the donor's death. 
 
 Delivery is not perfect unless accepted by the 
 donee. 
 
 A deposit by a husband of his own money in 
 the names of himself and wife is not in itself a gift 
 to her, and if it is simply payable to her she is a 
 mere agent to draw it, and her agency ceases on his 
 death. If the deposit is made in her name alone, 
 its effect depends on the circumstances of the case; 
 prima facie, except where the community system 
 prevails, it is a gift to her, good against his heirs, 
 though not against his creditors; but it may be 
 shown that it was not a gift to her, as where it was 
 entrusted to her for the support of the family. Of 
 course as between her and the bank she may draw it, 
 if the deposit is in her sole name. So if she deposits 
 his money with his consent in her name, the deposit 
 is deemed a gift to her. But a gift by a husband to 
 his wife of a deposit in his name, must be perfected 
 by delivery. A check alone is not delivery, and if 
 he dies before his wife draws the money or has the 
 check accepted, the gift does not take effect. 
 
 Some difficult questions sometimes arise where 
 the property of a husband and a wife has been so 
 mingled as to be beyond identification, but these 
 questions will be found soluble upon principles 
 already discussed. If an ascertainable sum of a 
 wife's money is mingled by her husband with his 
 own without her consent, or upon no understand- 
 ing that it shall be returned, she is to the extent of 
 such sum her husband's cestui que trust or creditor; 
 but her consent alone to such a course is merely 
 evidence of a waiver of her rights and of a gift to 
 him. If, however, the amount of money so mingled 
 is not ascertainable, she cannot recover from him 
 
 33
 
 WOMAN UNDER THE LAW 
 
 or his estate. In many cases a married "woman must 
 keep her separate property separate. 
 
 When a wife's services belong to her husband 
 he may abandon all rights to her future earnings. 
 If by statute a wife's "separate" earnings are hers, 
 she has thereby no interest in money earned jointly 
 with her husband; and usually w^hen husband and 
 w^ife are in business together without any special 
 understanding, it is presumed that the wife intended 
 to give her services to her husband. A husband 
 may give his wife his own services, whether he does 
 so or not raising many questions. 
 
 (a) General Rule. — A husband may, as his 
 wife's agent, manage her separate property or sep- 
 arate business w^ith or w^ithout compensation; but 
 neither he nor any creditor of his has, in the absence 
 of special agreement, any right in the property man- 
 aged, earned or accumulated through his agency. 
 Partnerships betw^een husband and wife are not in- 
 cluded w^ithin this discussion. 
 
 (b) Express Contract. — Contracts between 
 husband and wife are in most states void, and there- 
 fore there is usually no express contract by a wrife 
 to pay her husband for his services. In cases w^hen 
 such contract can and does exist, she may even be 
 made his garnishee ; but in the absence of such con- 
 tract neither he nor any creditor of his has any right 
 against her or her property. 
 
 (c) Implied Contract. — There is no implied 
 contract that a wife will pay her husband for his ser- 
 vices. His first duty is to support her and his fam- 
 ily, and in helping her to make her property produc- 
 tive he is but discharging this duty, and is presum- 
 edly amply compensated with the home and support 
 she allows him. Moreover, as one's talents and 
 capacity to labor are not property, and as therefore 
 no debtor can be made to work for his creditors, a 
 
 34
 
 MARRIAGE SETTLEMENTS 
 
 husband who is entitled to his wife's services may 
 give them to her even against his creditors, and may 
 likewise give her his own labor, but not his accumu- 
 lations. 
 
 (d) Apparent or Pretended Agency. — A 
 husband may thus, as his wife's agent, manage her 
 property or business without acquiring any rights 
 in said property or business, or subjecting it to the 
 claims of his creditors. But while apparently her 
 agent and pretending to act in that capacity he may 
 be conducting a business of his own under her name 
 simply for the purpose of evading his creditors, or 
 he may be using her property as a gift to him, or as 
 a loan; in such cases the business is his and the 
 remedies of his creditors against the assets thereof 
 are full. So when she has no pow^er by statute to 
 trade, but with his consent is in a business which 
 he conducts, it is his business; the right of his credit- 
 ors against a business which he conducts can be 
 questioned only when by statute she can trade alone. 
 When he has been using her property in his busi- 
 ness, her rights are at best those of a creditor. In 
 some cases where a wife has amassed a fortune 
 through the efforts of her husband, it has been held 
 that a court of equity would in favor of his creditors 
 mcike some apportionment — treat the husband and 
 wife as it were as partners. Whether the business 
 is the husband's or the w^ife's is simply a question of 
 fact, the burden of proof being generally on the 
 wife to show^ that the business w^as hers. So whether 
 there is fraud is a question of fact. 
 
 (e) Illustrations. — Thus, where a husband 
 with his team did a great deal of work on his w^ife's 
 property, and his creditors attempted to sell the crop 
 for his debts, the court held that he could give to her 
 the labor of himself and his beasts, and that the ac- 
 cretions to her property continued hers and could 
 
 35
 
 WOMAN UNDER THE LAW 
 
 not be touched by his creditors. Where a manufac- 
 turer of large experience failed, and then started up 
 again with his wife's money and in her name, and 
 made a fortune, the court allowed her her money 
 and interest, but held the remaining profits for his 
 debts. Where, w^hile the wife's earnings belonged 
 to her husband, he consented that she should trade 
 in her own name, but took part himself in the busi- 
 ness, the business was held his, and therefore liable 
 for his debts. 
 
 (f) Statutes. — In some States there are 
 statutes expressly referring to this subject. 
 
 The land of one spouse is not liable for im- 
 provements placed upon it by the other, either to 
 such other or to such other's creditors, except ( 1 ) 
 in the case of a contract by the owner of the land 
 w^hich renders it liable, or (2) as against creditors in 
 the case of actual fraud. As a general rule improve- 
 ments placed upon real estate without any agree- 
 ment of the owner to the contrary, become a part of 
 the realty and are lost to the party who places them 
 there and to his creditors. As between the parties 
 in the absence of contrsict there seems to be no 
 ground even for equitable interference, although, 
 when a husband improperly uses his wife's money 
 to improve his lands equity will cause her to be 
 reimbursed when the lands are sold. Nor ought a 
 wife's land to be liable at all for improvements 
 placed on them against her wishes or without her 
 consent. But when a husband, who, within the 
 know^ledge of his wife, is indebted, with her consent 
 improves her property, and becomes unable to pay 
 his debts, there is good ground for equitable inter- 
 ference. 
 
 (a) When a husband buys with his wife's 
 money in his own name, there arises a resulting 
 trust in her favor, unless a different intention on her 
 
 36
 
 MARRIAGE SETTLEMENTS 
 
 part is shown, and the burden of proof is on the 
 husband to show she intended a gift to him, which 
 is, however, prima facie established by proof of her 
 knowledge and consent. The wife, on her part, 
 must clearly show that her money was paid. When 
 such a resulting trust has arisen, the husband's cred- 
 itors cannot complain if he conveys the legal title 
 to her though he does so to defeat their remedies 
 against the property. While this property is not 
 liable for the husband's debts, his bona fide assignee 
 for value without notice takes it clear of the trust. 
 
 (b) When a husband buys with his own 
 money in his wife's name, the transaction is deemed 
 an advancement and gift to her, unless a different 
 intention on his part is shown, as where she had 
 agreed to hold it for him. or vv^as invested with the 
 title for his convenience, he being ill, or a foreigner. 
 In such cases no resulting trust arises in favor of 
 himself, or his heirs, but one does arise in favor of 
 such creditors of his as could have set aside a direct 
 conveyance of equal value from him to her, that is 
 to say, existing creditors, unless the settlement was 
 fair and reasonable, but not subsequent creditors, 
 unless there was fraud in fact. For a married 
 woman may be trustee, even by implication and 
 against her will. Still in these cases she is trustee 
 only to the extent of the money paid by her hus- 
 band. 
 
 (c) Every purchase by a married woman in 
 her own name is deemed to have been made with 
 her husband's money, but she may show that her 
 funds were used. So if she paid only a part she is 
 directly interested in the purchase to that extent, and 
 holds the title as security when it is assailed by her 
 husband's creditors. 
 
 (d) A purchase by a married woman with 
 her husband's funds in her own neune is deemed a 
 
 37
 
 WOMAN UNDER THE LAW 
 
 settlement by him on her, unless it appears that she 
 did so wrongfully, or with a different purpose. 
 
 (e) A purchase with the money of both in 
 the name of one is deemed a gift to that one, unless 
 the other shows a different intent, or a breach of 
 trust. If the purchase is in the name of both, a 
 tenancy by entireties is created. 
 
 (f) A resulting trust can be enforced only 
 in equity. 
 
 A wife has a direct interest in the life of her 
 husband, which may be insured by him (and by 
 her under special statutes) for her benefit. When 
 such insurance has been made the policy is her 
 separate property, the proceeds belong not to the 
 community but to her and her representatives; she 
 may assign it, even for her husband's debt; but 
 such assignment must be free from fraud and 
 duress. He cannot assign it or defeat her rights, 
 as by a fraudulent surrender, nor can either of them 
 so defeat the rights of children, who are also bene- 
 ficiaries; still, if he survives her he may surrender 
 a policy taken out for her benefit, or dispose of it by 
 will, or have another person, as a second w^ife, made 
 beneficiary. Her separate estate is not, however, 
 liable for the premiums. If a husband assigns a 
 policy for his benefit to his wife for hers, it may, 
 just as any other assignment, be a fraud on his 
 creditors; so if he surrenders a policy in his name 
 and takes out one in hers, for this is really an as- 
 signment; so if he makes a large and unreasonable 
 insurance in her favor w^hen he is indebted, but even 
 against creditors he may insure his life for her 
 benefit for a reasonable amount. Statutes often 
 exempt insurance policies from the claims of 
 creditors. 
 
 Contracts and conveyances by a wife for the 
 benefit of her husband's creditors are in reality in- 
 
 38
 
 MARRIAGE SETTLEMENTS 
 
 directly contracts and conveyances with him. But 
 special considerations have arisen with reference 
 to the wife's capacity to be surety for her husband 
 and to the incidents of her suretyship. 
 
 (a) Capacity Under General Powers. — In 
 the absence of express prohibition in the settlement 
 or statute whence she derives her capacity to con- 
 tract, a wife can to the full extent of that capacity, 
 equitable or statutory, contract as surety for her 
 husband. Thus, mortgages by the wife for the hus- 
 band's debts are common, so are assignments of per- 
 sonalty ; and a married woman who can make a pro- 
 missory note can endorse one for her husband. 
 
 (b) Capacity Limited by Statute. — In some 
 States statutes expressly, or by necessary implica- 
 tion, prohibit a wife's contracts as surety for her 
 husband. But such is not the effect of statutes for- 
 bidding contracts between husband and wife, or 
 providing that a wife's property shall not be liable 
 for her husband's debts. Nor does a statute which 
 prohibits such contracts as to her statutory separate 
 property affect her capacity as to her equitable 
 separate property. 
 
 (e) Contract Otherwise Binding. — The con- 
 tract must, however, not only be one which, though 
 a married woman, she has capacity to make, but 
 also one which would bind her as surety if unmar- 
 ried. 
 
 (d) Implied Suretyship. — Whenever a wife 
 conveys or mortgages her property, or binds herself 
 for her husband's debt she does so prima facie 
 simply as his surety; but whether she is so or not 
 depends upon her intent, and the debt may be 
 shown to have really been hers. Nor is she a surety 
 so far as concerns creditors if she is one of the 
 original contractors and nothing else appears. 
 
 39
 
 WOMAN UNDER THE LAW 
 
 (e) Incidents of her Suretyship. — Whenever 
 a wife is expressly or impliedly, as above, surety for 
 her husband, she has the same rights as other sure- 
 ties. Thus, she has her equity of exoneration. She 
 may not only, if she has paid his debt, go against 
 him for reimbursement pari passu w^ith his other 
 creditors, being subrogated to the rights of the 
 creditor she has paid, but she may compel him or 
 his representatives to redeem her goods which have 
 been pledges for his debt, and after his death she or 
 her representative or her creditor may have her 
 property exonerated of its liability out of his real 
 and personal estate. As in the case of other sureties 
 she may compel the creditor to first exhaust the 
 principal's means; if any of his securities are re- 
 leased, or his time is extended, or if he buys the 
 debt, she is discharged. If her mortgaged estate is 
 sold for her husband's debt under decree, she may 
 have a decree over against him. 
 
 In a case which was decided by the Supreme 
 Court of Massachusetts in 1888, a man in an in- 
 solvent condition upon entering into an engage- 
 ment of marriage and w^ith intent to defraud his 
 creditors, orally promised his intended wife to give 
 her certain bonds as a marriage settlement and sub- 
 sequently before the marriage delivered the bonds 
 to her upon an understanding that upon the con- 
 summation of the marriage they would become her 
 absolute property; and the bonds remained in her 
 possession until after they were married. The 
 court held, that the transaction amounted to 
 nothing more than an executory contract to transfer 
 the bonds upon the marriage which was without 
 valuable consideration and void as against his as- 
 signee in insolvency even if she did not participate 
 in the fraud. It will readily be seen how imperative 
 it is that a woman be professionally advised and 
 
 40
 
 MARRIAGE SETTLEMENTS 
 
 instructed with reference to the ante-nuptial agree- 
 ment. In another case, in Massachusetts, a legal 
 contract and promise of marriage made in good 
 faith by a woman to one who had executed to her a 
 deed of land for the purpose of inducing her to 
 marry him the court held, that she would be entitled 
 to hold the land against the man's creditors although 
 the marriage was prevented by his death; the 
 promise of marriage, made in good faith, furnish- 
 ing a good consideration for the deed. 
 
 In another case, a man, in consideration of 
 marriage, assigned to his intended wife all his right 
 and interest in an annuity to have and to hold to 
 her during the continuance of the marriage, and 
 afterwards married her; it was held by the Massa- 
 chusetts Supreme Court, that upon a divorce from 
 the bonds of matrimony granted on her libel for 
 his cruelty, her interest in the annuity ceased. 
 
 But in the absence of any express provision 
 to that effect or an implication of such an intent 
 from the whole instrument, a provision in an ante- 
 nuptial agreement for the benefit of either of the 
 parties is not annulled by n divorce although it was 
 granted for his or her adultery. 
 
 It is fully conceded by the authorities that the 
 ante-nuptial agreement without the intervention of 
 the trustee, which is necessary in agreements for 
 separation, is good and effectual. If an ante-nuptial 
 agreement gives power to dispose of property by 
 will, the power may be exercised by a will imme- 
 diately executed, although prior to the marriage. 
 The reason given for holding that marriage is 
 deemed to be a revocation of a woman's will — that 
 she thereby divests herself of the power of revoking 
 it and destroys the ambulatory character necessary 
 to the will, — does not apply to an appointment by 
 will. The woman has the same authority to ex- 
 
 41
 
 WOMAN UNDER THE LAW 
 
 ecute the power of revocation and appointment 
 when married as before. The nature, not the form 
 of the instrument determines whether at common 
 law or under statutes, it is a will of which marriage 
 is a revocation. 
 
 By an ante-nuptial agreement made between a 
 man and his intended w^ife, she was to hold her 
 property to her sole and separate use and w^as to 
 advance to the intended husband certain promis- 
 sory notes owned by her, with the proceeds of which 
 he was to redeem his mortgaged farm and convey 
 half thereof to her and have the use of said half so 
 long as he should be a faithful husband to her. He 
 had no legal right to redeem said farm, the right 
 to redeem it having wholly gone from him. Hiey 
 were subsequently married and the husband soon 
 after took said notes from his wife w^ithout her con- 
 sent and put them into the hands of his attorneys 
 for collection for him. The wife petitioned the 
 court to appoint a trustee to hold her separate prop- 
 erty in trust for her and the court appointed such 
 trustee to whom the wife conveyed all her separate 
 property in trust. The trustee brought a bill in 
 equity against the husband and his attorneys, pray- 
 ing that they might be required, by decree, to deliver 
 said notes to him and might be restrained from pros- 
 ecuting actions against the makers of the notes and 
 from receiving any money due thereon. The court 
 held that the trustee was entitled to a decree against 
 the husband, declaring the trustee's title to the notes 
 and the proceeds thereof, and also to a decree 
 against the husband's attorneys, requiring them to 
 account for and deliver over to the trustee the notes 
 or the proceeds thereof on payment of their legal 
 costs and expenses for services and disbursements. 
 
 42
 
 MARRIAGE SETTLEMENTS 
 
 An interesting case was decided by the Massa- 
 chusetts Supreme Court in 1 887 wherein it ap- 
 peared that a woman's signature to an ante-nuptial 
 contract was procured by fraud; she testifying that 
 her intended husband had promised to give her five 
 thousand dollars and a farm worth five thousand 
 dollars; that he told her while she was reading the 
 contract at his lawyer's office to "hurry up and sign 
 it, " as his horse would not stand; that she said, "I 
 suppose it is just as you talked? ' To which he re- 
 plied, "Yes." And that she thereupon signed it 
 knowing the contents only from what he had said. 
 TTie provision for her not being what he had prom- 
 ised; and two other witnesses having testified, — one 
 that the husband had told him that he promised to 
 settle upon her ten thousand dollars of which the 
 farm was to be a part, the other, that he was going to 
 give her that sum in money and property equally; 
 the court held, that her testimony would warrant 
 a finding that she was induced to sign the contract, 
 by a fraudulent misrepresentation of its contents 
 and that the testimony of the other witnesses was 
 admissible to confirm her evidence. 
 
 A woman may, after marriage, repudiate an 
 ante-nuptial agreement entered into by her by the 
 fraudulent representations of her intended husband 
 as to its contents and no ratification of such a con- 
 tract during her marriage will prevent her from ex- 
 ercising the right. If she entered into it without 
 fraud or misrepresentation, however, and all of the 
 necessary contractual elements existed and it has 
 been fully performed on the husband's side, a court 
 of equity will enforce its performance. She can- 
 not repudiate its conditions if she has accepted its 
 benefits. 
 
 The surviving husband of a woman, who in 
 contemplation of marriage, made with him an ante- 
 
 43
 
 WOMAN UNDER THE LAW 
 
 nuptial agreement providing that in case she should 
 die leaving issue surviving her, a certain note and 
 mortgage should be held to the use of her intended 
 husband for his life with remainder to her issue in 
 fee simple and who has since died leaving issue sur- 
 viving her, may maintain a bill of equity against 
 one to whom she, in her last sickness, delivered the 
 note and mortgage with directions to retain and 
 hold them in trust for the purpose declared in the 
 ante-nuptial contract and especially to protect the 
 rights and interest of her children, to compel the 
 delivery of the same either to himself or to such 
 person as the court may appoint trustee. Death- 
 bed repentance of her act executing an ante-nuptial 
 agreement w^ould be unavailing unless it could be 
 shown that the husband had been dilatory in carry- 
 ing out his part of the agreement without a sufficient 
 reason therefor. 
 
 An ante-nuptial contract whereby a man 
 agrees that real estate shall be transferred to his 
 w^ife upon his decease, based on a meritorious con- 
 sideration, though released or extinguished at law^, 
 is held good in equity and "will be enforced by a 
 court of equity against the heirs of the party in 
 default. The Court will hear and determine such a 
 case according to the course of proceedings in Chan- 
 cery and w^ill make such decree therein as justice 
 and equity may require. The court will have 
 regard to the intention to be deduced from the whole 
 instrument of conveyance to a greater extent in 
 construing trust estates created by ante-nuptial 
 contracts than in the construction of like limitations 
 in legal estates. The intention of the party is sought 
 with as great eagerness as in the case of wills. 
 
 A settlement in trust of personal property 
 completely executed w^ithout any circumstances 
 tending to show mental incapacity, mistake, fraud 
 
 44
 
 MARRIAGE SETTLEMENTS 
 
 or undue influence is binding, and will be enforced 
 against the settlor and his representatives and can- 
 not be revoked except so far as a power of revoca- 
 tion has been reserved in the deed of settlement; 
 and if by the terms of the deed the income of the 
 property is to be applied by the trustee to the benefit 
 of the settlor during his lifetime, the validity or 
 effect of any further trusts declared in the instru- 
 ment will not be impaired thereby. 
 
 A power of revocation should be reserved in 
 the deed, otherwise it cannot be revoked no matter 
 how many changes may have taken place since its 
 execution which would seem to warrant setting it 
 aside. 
 
 Any provision in the contract restraining 
 alienation is against public policy and contrary to 
 law. No condition whatever can give it life and 
 validity and it is void against creditors. 
 
 If the wife becomes insane, a bill in equity lies 
 to compel the trustee under an ante-nuptial agree- 
 ment securing the income of property to the wife's 
 sole and separate use to pay to her husband and 
 guardian such portion of the income as is reason- 
 able for her support. 
 
 An agreement by a woman on the eve of mar- 
 riage, to pay the debt of her intended husband 
 which is procured by threats of arresting him, can- 
 not be enforced in equity. 
 
 An unmarried woman may make a will, and 
 then an ante-nuptial agreement with her intended 
 husband providing for her retention of full control 
 over her property, and that the marriage shall not 
 revoke her will, and it will not be revoked by her 
 subsequent marriage, no issue having been born. 
 
 An ante-nuptial contract may be enforced by 
 bill in equity against the trustee or any person into 
 whose hands the property has come after the death 
 
 45
 
 WOMAN UNDER THE LAW 
 
 of either of the parties; but it will not be so en- 
 forced if the party seeking to enforce it has not ful- 
 filled it on his or her part. 
 
 In a case where there is no trustee and a hus- 
 band is violating an ante-nuptial contract, a court 
 of equity will, upon the wife's application, appoint a 
 trustee to enforce and protect her rights; and such 
 a trustee may maintain a bill against the husband to 
 compel fulfilment of the agreement. 
 
 A w^oman may bar herself by an ante-nuptial 
 agreement of her distributive share or of her statu- 
 tory allowance. 
 
 Ante-nuptial agreements must conform to the 
 usual legal requirements of other kinds of contracts ; 
 if they are evidenced only by oral promises and 
 fragments of letters they are insufficient, being 
 within the statute of frauds which requires certain 
 contracts to be in w^riting. 
 
 Certain statements made by a woman of 
 wealth before marriage in letters to her betrothed 
 to the effect that a portion of her property should 
 be treated as joint property, are held not to consti- 
 tute a ante-nuptial agreement entitling her husband 
 to an interest in his wife's estate while they are 
 living apart after a permanent separation. 
 
 A promise by a woman to marry immediately 
 a man she has promised to marry at some indefinite 
 future time, is a good consideration for an assign- 
 ment to her, two weeks before marriage of all his 
 interest in his father's estate. Such an assignment, 
 how^ever, is not an ante-nuptial contract; but if at 
 the time of executing it the man was free from debt, 
 except to the woman, and no real purpose to hinder 
 or delay future creditors is shown, it is valid as 
 against future creditors. 
 
 If a man and w^oman enter into an ante-nuptial 
 contract by the terms of which, after their marriage 
 
 46
 
 MARRIAGE SETTLEMENTS 
 
 they are to retain their respective estates, with a 
 provision that, if the w^ife survive the husband she 
 shall receive within a given time from the time of 
 his death, a certain sum of money from his estate; 
 that to secure such payment she shall have posses- 
 sion of certain real estate of which he is seised, 
 w^hich shall become hers absolutely if the payment 
 is not made within the time stated, and that upon 
 his death she shall by deed release all interest in his 
 estate excepting said stipulated sum and the security 
 for the payment thereof; after their marriage and 
 the death of the husband the wife will be required 
 to release all her interest in her husband's estate 
 upon the tender to her of the stipulated sum and a 
 demand for said release. 
 
 The foregoing illustrations will give an ade- 
 quate idea of the general characteristics, the utility 
 and the subtlety of the ante-nuptial agreement. 
 Every woman contemplating marriage should con- 
 sult a lawyer of experience as to the construction, 
 scope and effect of any such instrument which she 
 may wish to take under consideration. 
 
 It should be borne in mind at all times, how^- 
 ever, that a mere oral agreement to execute an ante- 
 nuptial contract is of no force or effect, being 
 within the statute of frauds, the main object of 
 which w^as to take away the facilities for fraud and 
 the temptation to perjury which arose in verbal 
 obligations, and the substance of which has been 
 enacted in almost all states of the Union with other 
 provisions of the same general character to prevent 
 frauds and perjuries. 
 
 As to the terms of an ante-nuptial contract, or 
 just how and in what manner and proportions 
 property is to be settled thereunder, the woman 
 must be the sole judge, guided by the advice and 
 
 47
 
 WOMAN UNDER THE LAW 
 
 judgment of friends who are in every way qualified 
 to advise her upon such a vitally important matter. 
 
 The status of woman after marriage is prob- 
 lematical to say the least, for the mind of man 
 veers like the wind and frequently "bloweth where 
 it listeth and thou hearest the sound thereof, but 
 canst not tell whence it cometh and whither it 
 goeth," and some men there are, and always will be, 
 who prey upon the confiding nature of woman and 
 her lack of legal knowledge. "These are mur- 
 murers, complainers, walking after their own lusts; 
 and their mouth speaketh great swelling words hav- 
 ing men's persons in admiration because of advan- 
 tage." 
 
 An ante-nuptial contract has just been recorded 
 in Rhode Island which shows that one woman knew 
 how to protect her property and incidentally herself 
 from the possible undue influence, importunities 
 
 and threats of her intended husband: Miss 
 
 inherited $12,000,000 from her grandmother and 
 
 shortly thereafter married Lord . Previous to 
 
 the marriage ceremony an ante-nuptial contract was 
 arranged and executed transferring all the estate 
 and property of the prospective bride to the control 
 of two trustees, and providing that the income shall 
 be paid to her until she becomes thirty-five years old. 
 If she dies before reaching the age of thirty-five, 
 her Lord is to be paid $1 00,000 for his absolute use. 
 If children are left. Lord is to receive the in- 
 come from $100,000 for the remainder of his life, 
 and the children equal shares of the remaining 
 estate after reaching the age of twenty-one. It will 
 
 be noted that only in the event that Lady dies 
 
 before reaching the age of thirty-five is her Lord to 
 be paid anything. The trust fund would remain 
 intact even then, and go to the children when they 
 reached the age of twenty-one. The financial status, 
 
 48
 
 MARRIAGE SETTLEMENTS 
 
 at least of this woman, is permanently and deci- 
 sively fixed. Should her "Lord and master" ever 
 attempt to meddle or tamper w^ith her property she 
 might sportively quote the words of Second Samuel 
 — "How are the mighty fallen in the midst of the 
 battle! O Jonathan, thou wast slain in thine high 
 places." 
 
 49
 
 CHAPTER III. 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 A contract mutually entered into by a man and 
 a woman that they will marry each other, is com- 
 monly called a promise to marry. It is necessary 
 that such a contract, either express or implied, pre- 
 cede a wedding ceremony, which, of course, can- 
 not be agreed upon and performed simultaneously. 
 
 When such a contract has been made, and sub- 
 sequently, either of the parties thereto refuses to 
 marry thereunder, the other may bring a suit for 
 damages; such suits are called breach of promise 
 suits and when being tried, usually afford the social 
 sensation of the day. 
 
 The contract is the mutual agreement of a man 
 and a woman to become husband and w^ife in the 
 future, and in form, must satisfy the legal require- 
 ments, as to parties, consideration, and other mat- 
 ters, to the same extent as contracts of other kinds. 
 
 The failure to carry out the terms of any kind 
 of a contract is a breach of promise, but the expres- 
 sion has been limited colloquially to broken prom- 
 ises of marriage. There must be an offer of mar- 
 riage or promise to marry by one of the parties 
 made known to the other; a mere intention to 
 marry, communicated to third persons out of the 
 other person's presence, is no offer or promise at 
 all. The offer need not be in writing unless it is 
 one of a series of stipulations and counter-stipula- 
 tions dependent upon each other, or is not to be 
 
 50 
 
 1
 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 performed within one year; it may be made through 
 a friend or agent and need not be made in express 
 words; it need only appear that both parties un- 
 derstood it to be an offer of marriage. It is suf- 
 ficient if there is shown a definite understanding 
 betw^een the parties, their friends and relations that 
 their marriage is to take place, and this may be 
 shown by conduct. 
 
 The acceptance, like the offer, may be made 
 through a friend or agent and need not be in express 
 words, but may be inferred from the promisee's 
 conduct, and it must appear that it was made within 
 a reasonable time after the offer. The accepted 
 promise must be certain. Thus a promise to 
 marry "perhaps " could not be the foundation of a 
 suit, and a man's promise to marry a woman if 
 he married anyone, is void, both because it is too 
 indefinite and because it acts virtually as a restraint 
 on marriage and is against public policy. A prom- 
 ise to marry after the death of a parent, the parent 
 having died, has been held good, and a promise to 
 marry a woman after she had had an operation per- 
 formed, the operation not having been performed, 
 has been held not binding. Conditions which are 
 insignificant are sometimes disregarded, as where a 
 man promised to marry plaintiff when certain car- 
 riages should be finished, and they were not fin- 
 ished. The court held such a limitation not of the 
 essence of the contract and the man bound never- 
 theless. 
 
 But a man's promise, conditional upon his get- 
 ting a divorce from his w^ife or upon her dying, is 
 void; and so is a promise conditional upon the prom- 
 isee's having intercourse with him or continuing to 
 live for a time as his mistress, as such promises are 
 contrary to public policy. 
 
 51
 
 WOMAN UNDER THE LAW 
 
 If the parties do not themselves make the con- 
 tract definite as to time and place, the law presumes 
 that a contract to marry is a promise to marry 
 within a reasonable time, and at the residence of 
 the woman. In determining what is a reasonable 
 time, the age and circumstances of the parties will 
 be considered. 
 
 The consideration in contracts of this kind is 
 the mutual promise. There may be some other con- 
 sideration added which will neither add to nor de- 
 tract from the contract unless it be immoral. Thus 
 a promise to marry made after seduction, in con- 
 sequence thereof is binding, but a promise to marry 
 on consideration of future intercourse is void, as 
 against public policy. 
 
 The contract must be made between com- 
 petent parties. Thus, an infant, not capable of 
 making ordinary contracts, though he is old enough 
 to marry, and though he accomplished seduction by 
 his promise, is not bound by a promise of marriage, 
 though as in the case of other contracts with infants, 
 he may sue on the promise to him. 
 
 But in all cases where the party is legally com- 
 petent to contract and knows of his incompetence 
 to marry, he may be liable in an action for deceit, 
 though his promise to marry be void. The fact that 
 the party has already promised to marry one or 
 more w^omen will not affect his capacity to promise 
 to marry yet another. 
 
 Force, fraudulent concealment and false repre- 
 sentations may invalidate contracts to marry, just 
 as they invalidate other contracts. 
 
 A promise made at the point of a pistol, or to 
 get free from actual confinement, would not be en- 
 forceable. While a man is supposed to have in- 
 quired and learnt all about the fortune, condition, 
 and circumstances of a woman before promising 
 
 52
 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 to marry her, and while a woman is not bound to 
 disclose anything except her previous unchastity or 
 her unfitness for sexual intercourse (it would be a 
 fraud to sell a cow with such a defect without mak- 
 ing it known to the purchaser), any false represen- 
 tation made by her or on her behalf, with her knowl- 
 edge, for the purpose of deceiving the promisor, 
 constitutes a fraud, and in such cases a man's 
 promise is not binding, whether such false represen- 
 tations relate to her social position and fortune or 
 to her character. 
 
 Evidence that the plaintiff's brother kept a 
 bawdy house, however, without in any way con- 
 necting the plaintiff with it, is inadmissible for the 
 defendant. 
 
 It is not the duty of a party before making or 
 accepting an offer of marriage to communicate all 
 the previous circumstances of his or her life. The 
 parties would be bound if they became engaged, 
 without making any investigations, and w^ithout 
 receiving any assurances or representations which 
 led to the engagement, even though matters were 
 discovered subsequently, which, if known at the 
 time, would have prevented the engagement, unless 
 they were such as gave a right to the other party 
 to terminate the contract upon their discovery. 
 
 The fact that the woman had some negro blood 
 in her veins, or that her motives were mercenary, or 
 that there was a want of affection on her part or that 
 there was an incompatibility resulting from dis- 
 parity of age, difference of character and disposi- 
 tion, and other causes apart from fraud, will not 
 justify the man, as a matter of law in breaking the 
 contract. Mere silence on the part of the plainti£F, 
 without inquiry by the defendant though resulting 
 in the concealment of matters which would have 
 prevented the engagement if know^n, will not con- 
 stitute fraud. 
 
 53
 
 V/OMAN UNDER THE LAW 
 
 But a partial and fragmentary disclosure ac- 
 companied by the willful concealment of material 
 and qualifying facts, is a misrepresentation which 
 will avoid a contract to marry subsequently made. 
 More direct proof of a contract to marry is now com- 
 monly required than formerly. Therefore, a prom- 
 ise cannot be inferred from devoted attention, fre- 
 quent visits and apparently exclusive attention; nor 
 from mere presents or letters not to the point; nor 
 from the plaintiff's wedding preparations unknown 
 to the defendant, nor from the woman's unexplained 
 possession of an engagement ring. Courtship alone, 
 or, mere intention to marry is not enough. Court- 
 ship is not an agreement to marry. The fact that 
 the plaintiff consented to a tw^o year's postponement 
 of the w^edding day has been held not to relieve the 
 defendant from his promise. 
 
 There is a breach of the contract to marry enti- 
 tling the party, not in default, to sue for damages if 
 a party refuses to marry on the day fixed, or when 
 the promise w^as general, upon request, after a 
 reasonable time refuses to fix a day, marries some 
 other person, or repudiates his promise and declares 
 that he will not be bound by it. In either of the 
 last two mentioned cases the party not in default 
 need not w^ait for the time of performance to arrive, 
 or request the fulfilment of the promise, but may 
 sue at once. 
 
 When a request is required in the case of a 
 woman, the modest expression of her readiness to 
 be married, in the presence of the man, is a sufficient 
 request. 
 
 A refusal to fulfil the contract may as well be 
 manifested by acts as by words. After the lapse of 
 a reasonable time, if one party, without sufficient 
 excuse, neglects or refuses to fulfil his promise, the 
 other may consider this a breach and sue. It is 
 
 54
 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 sufficient if plaintiff shows that defendant has 
 violated his promise by refusing to marry her, 
 without averring or proving an offer on her part to 
 marry defendant. 
 
 An action for breach of promise exists inde- 
 pendently of statute, by the common law, although 
 at an early date in this country it was questioned 
 whether such an action could be brought, and efforts 
 have been made at various times to have it abol- 
 ished. The action may be brought by either a man 
 or a woman. It does not survive against a party's 
 representatives unless there has been special 
 damage. 
 
 When sued for breach of promise, the defend- 
 ant may show either that, owing to the absence of 
 some requisite, there never was any contract, or 
 that, though such a contract did exist, he did not 
 break it because he was discharged from his obliga- 
 tion, either by the plaintiff's express consent or by 
 the plaintiff's consent to be implied by the jury from 
 her conduct or by the plaintiff's failure to carry out 
 some condition of the contract, or by the plaintiffs 
 or even the defendant's having become physically 
 or mentally unfit to marry after the promise w^as 
 made, or by the plaintiff's having been dissolute, 
 or guilty of such brutal or immoral conduct as shows 
 her unfit to expect the defendant to marry her, 
 though excessive drinking has been held not 
 enough; and it is not a defence that after the prom- 
 ise the defendant discovered that he could not live 
 happily with the plaintiff. It is doubtful if in any 
 mind once set upon a breach of a promise to marry 
 there could be any dearth of such discovery. 
 
 It is not a defence that she had promised to 
 marry someone else before she agreed to marry him, 
 or that he made her promise in bad faith, or that 
 after he refused to marry her he offered to carry out 
 
 55
 
 WOMAN UNDER THE LAW 
 
 his contract. Certainly not if his second offer came 
 after she had threatened or brought suit. If the de- 
 fendant pleads the plaintiff's bad conduct as a dis- 
 charge he must show that his refusal to consummate 
 his promise was due to such bad conduct, and that 
 he renounced his promise as soon as the conduct 
 happened or was discovered by him. If he con- 
 tinues to bask in the radiant sunshine of her Cleo- 
 patric charms, he w^ill be held to have slumbered 
 fatally upon his legal rights. And dissolute con- 
 duct is no defence whatever, if he connived at or 
 was a party to it. He must come into court with 
 clean hands and absolutely free from any participa- 
 tion in the conduct complained of, or set up in 
 defense. 
 
 In actions for breach of promise of marriage, 
 damages have never been limited to the rules gov- 
 erning actions upon simple contracts for the pay- 
 ment of money, but rests with the sound discretion 
 of the jury under the circumstance of each partic- 
 ular case, subject of course to the general restric- 
 tion that a verdict influenced by prejudice, passion 
 or corruption will not be allowed to stand. To keep 
 cases of this kind out of the courts, exemplary dam- 
 ages may properly be awarded. The plaintiff is 
 entitled to recover not only an indemnity for her 
 pecuniary loss and the disappointment of her reason- 
 able expectations of material and worldly advantage 
 resulting from the intended marriage, but also com- 
 pensation for w^ounded feelings, and the mortifica- 
 tion and pain which she has been wrongfully made 
 to undergo and for the harm that has been done to 
 her prospects in life. Thus, there may be given in 
 evidence, and the jury may take into consideration 
 in estimating the damages, the defendant's general 
 reputation for wealth (and in rebuttal poverty) and 
 his social position. 
 
 56
 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 It has been held in Arkansas, however, that the 
 damages are not to be measured by the weahh or 
 poverty of the defendant, though his wealth and 
 rank may be pertinent to the issue as showing the 
 injury sustained by the loss of marriage. Evidence 
 may also be given and considered of the length of 
 the engagement, the depth of plaintiff's devotion, 
 her lack of independent means; her mortification 
 and injured feelings and affections, her loss of virtue 
 and reputation; but not her loss of time and the 
 expenses of medical attendance; her altered social 
 condition in relation to her home and family due to 
 his conduct, and her expenses in preparation for the 
 marriage. But no facts arising after suit brought 
 may be proved. 
 
 in aggravation of damages it may be proved in 
 some states, if this is alleged in the complaint, that 
 by means of his promise, the defendant seduced 
 her, and the results of the seduction, as the expenses 
 attending the birth of a child, or the pain and morti- 
 fication of bearing a bastard; in other states, on the 
 ground that the plaintiff must have been a particeps 
 criminis to the seduction, and therefore could not 
 complain of it and the jury cannot consider it. In 
 aggravation, also, may be shown the mode in which 
 the engagement was broken, the cruel, indecent 
 and insulting conduct of the defendant, and the 
 fact that to justify his refusal he has pleaded the 
 plaintiff's unchastity in bar, whether such plea was 
 in bad faith or not; though in some states to en- 
 hance damages the plea of justification must have 
 been made in bad faith, and in some it cannot be 
 taken into consideration at all, and in mitigation of 
 damages may be shown the fact of the plaintiff's 
 unchastity, though known at the time of the prom- 
 ise or condoned, and her general bad character 
 (good character in rebuttal), and the defendant's 
 
 57
 
 WOMAN UNDER THE LAW 
 
 bad character, or his being afflicted with a contagi- 
 ous or incurable disease, and any misconduct show- 
 ing that the plaintiff w^ould be an unfit companion 
 in married life. 
 
 But not that since the commencement of the 
 action the plaintiff has made declarations to the 
 effect that she had no affection for the defendant 
 and would not marry him but for his property. But 
 such declarations made before the action w^ere ad- 
 mitted, and not the fact that the plaintiff had been 
 trying to marry someone else, or the probabilities 
 of unhappiness resulting from the marriage, and 
 not that the defendant had seduced the plaintiff or 
 corrupted her morals, rendering her a less desirable 
 person to marry. It is not to be endured that a man 
 should seduce a female and ruin her character and 
 standing in society, and, w^hen she comes to ask 
 compensation for the injury under which she is 
 suffering, avail himself of her humiliation and dis- 
 grace to diminish her claim for damages. 
 
 In Wisconsin, marriage between first cousins 
 being sanctioned by law, such kinship of the parties 
 is not a defense, nor a matter in diminution of dam- 
 ages, in an action for breach of promise to marry. 
 
 There is no law^ and no inherent power in the 
 courts to compel marriage. Any person may break 
 a marriage engagement, but he must respond to the 
 other party thereto in damages. It would be against 
 public policy to compel two persons against their 
 will to become man and w^ife. This sacred relation 
 should be entered into in love and confidence, not 
 with fear and hatred. 
 
 In England, specific performance of the con- 
 tract of marriage was decreed by the spiritual court, 
 compelling a celebration of the marriage, in facie 
 ecclesiae in early times, but this remedy could not 
 be pursued if a suit for damages was brought. The 
 
 58
 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 last instance known of the bringing of a suit for 
 specific performance was in 1752 and the right to 
 bring such an action w^as abolished by Lord Hard- 
 wick's Act, 
 
 There is a tendency on the part of wronged 
 w^omen to shrink from the publicity and notoriety 
 attending suits for breach of promise, and fear of 
 being brought into public ridicule or scorn by idle 
 gossipers likely to be found chiefly among her fe- 
 male acquaintances (miscalled friends), and sensa- 
 tional newspaper reports of the delicate details of 
 the courtship, which must be disclosed at the trial. 
 Such unwarranted timidity should be condemned. 
 Men should be taught that w^oman's affection cannot 
 be dealt w^ith w^antonly. 
 
 Women owe a threefold duty to mankind in 
 general, to their sex in particular and to themselves 
 more in particular, to bring such suits wherever the 
 circumstances legally w^arrant it. 
 
 A Chief Justice of the Massachusetts Supreme 
 Court has aptly and eloquently treated the subject 
 in the following words: 
 
 "We can conceive of no more suitable ground 
 of application to the tribunals of justice for com- 
 pensation, than that of a violated promise to enter 
 into a contract, on the faithful performance of 
 which the interest of all civilized countries so essen- 
 tially depends. When two parties, of suitable age 
 to contract, agree to pledge their faith to each other, 
 and thus withdraw themselves from that intercourse 
 with society which might probably lead to a similar 
 connection with another, — the affections being so 
 far interested as to render a subsequent engagement 
 not probable or desirable, — and one of the parties 
 wantonly and capriciously refuses to execute the 
 contract which is thus commenced, the injury may 
 
 59
 
 WOMAN UNDER THE LAW 
 
 be serious, and circumstances may often justify a 
 claim of pecuniary indemnification. 
 
 "When the female is the injured party, there is 
 generally more reason for a resort to the laws than 
 when the man is the sufferer. Both have a right of 
 action, but the jury will discriminate and apportion 
 the damages according to the injury sustained. A 
 deserted female, whose prospects in life may be 
 materially affected by the treachery of the man to 
 whom she has plighted her vows, will always re- 
 ceive from a jury the attention which her situation 
 requires ; and it is not disreputable for one, who may 
 have to mourn for years over lost prospects and 
 broken vows, to seek such compensation as the law^s 
 can give her. It is also for the public interest, that 
 conduct tending to consign a virtuous woman to 
 celibacy, should meet with that punishment which 
 may prevent it from becoming common. That 
 delicacy of the sex which, happily, in this country 
 gives the man so much advantage over the w^oman, 
 in the intercourse which leads to matrimonial en- 
 gagements, requires for its protection and continu- 
 ance the aid of the laws. When it shall be abused 
 by the injustice of those who would take advantage 
 of it, moral justice, as well as public policy, dictates 
 the propriety of a legal indemnity. 
 
 "This is not a new doctrine. As early as the 
 time of Lord Holt, it was announced, as the com- 
 mon law, by that wise and learned judge and his 
 brethren, that a breach of promise of marriage was 
 a meritorious cause of action; and although the 
 value of a marriage in money might have had some 
 influence in that decision, there is no doubt that the 
 loss sustained in other respects — the w^ounded 
 spirit, the unmerited disgrace, and the probable soli- 
 tude, which would be the consequences of desertion 
 after a long courtship) — were considered to be a» 
 
 60
 
 PROMISES TO MARRY AND BREACH OF PROMISE 
 
 legitimate claims for pecuniary compensation as the 
 loss of reputation by slander, or the wounded pride 
 in slight assaults and batteries. 
 
 "Nor is this English law become obsolete. It is 
 the common law of our country, always recognized 
 when occasions have offered; and the occasions 
 have not been unfrequent since the adoption of our 
 constitution." 
 
 The action of breach of promise was unknown 
 to the Roman law, it being considered contra bonos 
 mores. Even a stipulation fixing beforehand the 
 sum to be paid as a penalty in case of non perform- 
 ance of the contract could not be enforced. The 
 only penalty attached was the obligation on the 
 party who had broken the contract to return any 
 gifts received by way of earnest, and the infamy of 
 such conduct and proceedings. 
 
 In Holland, he who has entered into espousals, 
 according to the law of that country, may, at the 
 suit of the other party, be compelled to fulfil his en- 
 gagement, by imprisonment, seizing his goods, etc.; 
 and if he still continue obstinate, the judge may, by 
 his sentence, declare the marriage perfected, the 
 consent given in the espousals being, in such case, 
 brought down fictione juris to the date of the sen- 
 tence. 
 
 By the custom of Scotland, all promises of 
 marriage, whether private or more solemn, or con- 
 tained in written contracts, may, in general, be 
 resiled from, which proceeds from a close adherence 
 to the rule matrimonia debent esse libera, and from 
 the consideration of the fatal consequences which 
 often attend forced marriages. 
 
 In Spain, a promise of future marriage is of 
 such force that, by reason of it, the persons who 
 are betrothed are bound to contract matrimony 
 afterwards, and are prohibited to marry with an- 
 
 61
 
 WOMAN UNDER THE LAW 
 
 other; but the canonical and civil impediments, 
 which hinder and dissolve marriages, hinder and 
 dissolve espousals, and their causes are of ecclesias- 
 tical cognizance. 
 
 In Germany, promises of marriage made with 
 certain formalities are actionable; but it seems the 
 modern laws, having regard to the tenderness of the 
 marriage ties and the injustice of constraint, have, 
 in many places there, taken away the means of en- 
 forcing, by action, a promise to marry. 
 
 By the Frederickian code, compiled for the 
 states of his majesty the king of Prussia, a promise 
 to marry might be enforced by imprisonment and a 
 very heavy fine. 
 
 By the code of Ferdinand for the kingdom 
 of the Two Sicilies, a promise of marriage pro- 
 duced no civil obligation, unless made before an 
 officer of state in the manner prescribed, in which 
 case an action might be maintained for the recovery 
 of damages in case of non-performance. 
 
 62
 
 CHAPTER IV. 
 
 MARRIAGE 
 
 Our law considers marriage in no other light 
 than as a civil contract; the holiness of the matri- 
 monial state is left entirely to the ecclesiastical law, 
 and such contract is good and valid if the parties 
 were at the time of making it willing to contract, 
 able to contract, and actually did contract in the 
 proper forms and solemnities required by law. 
 Moreover, it is a contract regulated and prescribed 
 by law and endowed with civil consequences; by 
 which a man and woman, capable of entering into 
 such a contract, mutually engage w^ith each other 
 to live their whole lives together in the state of union 
 which ought to exist betw^een a husband and his 
 wife. The act of marriage having been once accom- 
 plished the word comes afterw^ards to denote the 
 relation itself. Marriage, therefore, is the legal 
 status or condition of husbands and wives, just as 
 infancy is the legal status of persons under age. The 
 legal conditions of a marriage are precedent, con- 
 tinuing and subsequent. A marriage is legal when 
 all these conditions exist or are performed; invalid 
 when one or more of them is w^anting. A marriage 
 is legal when all the provisions of law relating 
 thereto have been complied with; illegal when one 
 or more of them has been omitted. A marriage, if 
 legal, must be valid, but a valid marriage may not 
 be legal. A void marriage is not a marriage at all; 
 it is invalid and illegal. A voidable marriage is one 
 which is valid until duly avoided, or void until duly 
 
 63
 
 WOMEN UNDER THE LAW 
 
 confirmed; thus it may be valid or invalid, and it is 
 illegal. A prohibited marriage is a valid marriage 
 in respect to which some one has done or omitted 
 something, prohibited or commanded by law, some- 
 times under penalty ; it is simply illegal. 
 
 After a valid marriage between them, man and 
 woman are husband and w^ife, and their offspring 
 are legitimate or legal children. This most bene- 
 ficial institution of society, as it is termed by Kent, 
 may, therefore, fall into three great divisions: the 
 formation of marriage; the marriage state; and the 
 dissolution of marriage. 
 
 The consummation of a marriage by coition is 
 not necessary to its validity. Matrimonial cohabita- 
 tion or matrimonial intercourse, as sometimes dis- 
 tinguished from it, is not required, and as we have 
 already seen, it is against the policy of the law that 
 the validity of the contract of marriage or its effect 
 upon the status of the parties, should be in any way 
 affected by their preliminary or collateral agree- 
 ments. The status of the parties is fixed in law when 
 the marriage contract is entered into in the manner 
 prescribed by the statutes in relation to solemniza- 
 tion of marriages. 
 
 Any promise not to marry at all, or not to 
 marry except after unreasonable time or upon un- 
 reasonable conditions, is against public policy and 
 void. Contracts, or clauses in contracts, having a 
 tendency to prevent the marriage of some person 
 affected are frequently held to be void as against 
 public policy; to try to prevent marriage having 
 been called the blackest of political sins. The effect 
 of the contract, or clause, may depend largely upon 
 its form, whether it is a condition or a limitation, 
 whether it is a condition subsequent or precedent, 
 whether it is general or aimed at a particular mar- 
 riage, whether it affects realty or personalty and 
 
 64
 
 MARRIAGE 
 
 what provision it makes in case of its breach. The 
 law upon these subjects cannot be said to be well 
 settled. This is a subject that has been fruitful of 
 discussion and indeed of conflicting decisions, caus- 
 ing the law to be in a state of change and uncer- 
 tainty, but a settlor can always carry out his inten- 
 tions by putting the condition in the form of a 
 limitation. A condition against a particular mar- 
 riage, if reasonable, is valid. But if it practically 
 amounts to a general prohibition against marriage, 
 it is treated as a general condition and is void. 
 
 A member of a society of Friends, by will, 
 gave a legacy of the remainder, after a life interest 
 to his niece during her single life and forever if her 
 conduct should be orderly and she remain a member 
 of the society of Friends. When the niece arrived 
 at a marriageable age there were but five or six un- 
 married men of the society in the neighborhood in 
 which she lived, and during the life estate she mar- 
 ried a man not a member of the society. It was 
 held that the condition was an unreasonable re- 
 straint upon marriage and void. 
 
 A condition precedent is valid. For example, 
 — The testator gave a portion of his estate to his 
 daughter Rachel on her attaining the age of twenty- 
 eight years, or day of marriage, which must first 
 happen, provided his daughter should marry with 
 the approbation of his executors. Rachel married 
 w^ithout the consent of the executors. It was de- 
 cided that the above provision was a condition pre- 
 cedent, and as it was not complied with, the estate 
 did not vest in Rachel. 
 
 An absolute condition subsequent is void. For 
 example, — A deed conveying the sole property in 
 trust for the sole and separate use of the feme 
 covert, contained a provision that in case the hus- 
 band should survive the wife, he and his assigns 
 
 65
 
 WOMAN UNDER THE LAW 
 
 should have the rents, issues and profits during his 
 natural life, only to and for his own use and benefit 
 provided he should continue unmarried after the 
 death of his wife then living and from and imme- 
 diately after his decease, then over. Held, that this 
 proviso being a general restraint upon marriage by 
 means of the condition subsequent, was void and 
 the husband's life estate was not terminated by his 
 second marriage. 
 
 A condition is valid as to personalty if there be 
 a gift over, otherwise void. A condition subsequent 
 is good as to real estate if the condition is not in- 
 tended to prevent marriage, but to provide for the 
 grantee until marriage. 
 
 It should be borne in mind that there are four 
 essential elements to a marriage. 
 
 First : Each of the parties must have the capac- 
 ity to marry the other. Thus a man may not be 
 able to marry a certain woman either because he is 
 not old enough to marry anyone, or because she is 
 too nearly related to him or is not of the same color. 
 
 Second: The parties must mutually agree 
 to be thenceforth husband and w^ife. No one can be 
 married w^ithout his or her consent no matter how 
 competent the parties may be or what formalities 
 they go through. 
 
 Third: The parties must go through certain 
 formalities, sometimes religious and sometimes 
 civil. That is to say, the state, for the protection of 
 the people, generally prescribes formalities and does 
 not leave marriage to be formed as an ordinary part- 
 nership. 
 
 Fourth: The parties must become husband 
 and w^ife in fact, must assume marriage rights, duties 
 and obligations. In the famous Sharon divorce case 
 which was tried recently in the courts of California, 
 
 66
 
 MARRIAGE 
 
 no marriage was found because the parties had 
 simply lived together as man and mistress. 
 
 In Massachusetts, from very early times, the 
 requisites of a valid marriage, have been regulated 
 by statutes of the Colony, Province and Common- 
 wealth; the canon law was never adopted; and it 
 was never received here as common law that parties 
 could by their own contract without the presence of 
 an officiating clergyman or minister take each other 
 as husband and wife and so marry themselves. This 
 clearly appears in tracing the history of the legisla- 
 tion upon the subject; the whole of which whether 
 repealed or unrepealed, is by a familiar rule, to be 
 considered in ascertaining the intention of the Legis- 
 lature. 
 
 The requisite of solemnization before a magis- 
 trate and other authorized persons is essential to 
 constitute a valid marriage, which had been clearly 
 implied in earlier statutes, and was distinctly ex- 
 pressed in the following Massachusetts statute of 
 1646: "As the ordinance of marriage is honorable 
 amongst all, so should it be accordingly solemnized. 
 It is, therefore, ordered by this court, on authority 
 thereof, that no person whatsoever in this jurisdic- 
 tion shall join any persons together in marriage, but 
 the magistrate or such others as the general court or 
 court of assistance shall authorize. In such places 
 where no magistrate is near, persons shall not join 
 themselves in marriage but before some magistrate 
 or person authorized as aforesaid. Nor shall any 
 magistrate join any persons together in marriage 
 or suffer them to be joined together in marriage in 
 their presence before the parties to be married have 
 been published according to law." 
 
 The Massachusetts statute of I 786, chapter 3, 
 manifested no intention to change the law in this 
 respect; while it expressly repealed all former 
 
 67
 
 WOMEN UNDER THE LAW 
 
 laws relating to the solemnization of mar- 
 riages, it substantially re-enacted many of their 
 provisions. It also contained a new provision 
 wherein marriages w^hich had been or should be 
 had and solemnized among Quakers or Friends 
 in the manner and form used and practised in their 
 societies, to be good and valid in law and requiring 
 the clerk or keeper of the records of the meeting at 
 which such marriage should be had and solemnized, 
 to make return thereof. 
 
 This section. Chief Justice Parsons tells us, 
 was enacted in consequence of the general opinion 
 of lawyers that such marriages were void before. 
 
 Until the changes in the form of the statutes it 
 has always been assumed in Massachusetts and in 
 the state of Maine, which was originally a part 
 thereof, that except in the single case of Quakers or 
 Friends a marriage w^hich is shown not to have been 
 solemnized before any third person acting or be- 
 lieved by any of the parties to be acting as magis- 
 trate or minister, is not lawful or valid for any pur- 
 pose. 
 
 The absence of one or more of the foregoing 
 elements may not render the marriage invalid, and 
 as a general rule, absence of any formality what- 
 ever and of any consummation of the marriage will 
 not prevent the parties from being husband and 
 wife as we have seen, whatever other results may 
 be entailed upon them. For a marriage which is 
 valid, may be invalid in certain respects, or it may 
 be a prohibited or voidable marriage. 
 
 Sometimes the marriage is recognized but the 
 parties are punished for marrying, or for marrying 
 in the way pursued ; as in Maryland, where a mar- 
 riage without license or publication of banns is valid 
 but the parties are fined $100.00 each. Sometimes 
 the marriage will not be recognized but there is no 
 
 68
 
 MARRIAGE 
 
 penalty; as in Massachusetts, where if a woman 
 marries a second time when her husband has been 
 absent and unheard of for seven years, if he be not 
 dead at the time of the second marriage, it is void, 
 but she is not punishable for bigamy; and to illus- 
 trate more fully the importance of these distinc- 
 tions, the marriage of a minor without the consent 
 of his parents, was in England under Lord Hard- 
 w^ick's Act, void; in Maryland, simply prohibited. 
 A legal marriage is one with respect to which all 
 the provisions of the law^ have been complied with ; 
 but there are many laws relating to marriages which 
 may be disregarded without preventing the parties 
 from becoming by the marriage, completely hus- 
 band and wife. Thus a license to marry is usually 
 required by law, but failure to secure a license w^ill 
 not prevent the parties from becoming husband and 
 wife if they are in all other respects properly mar- 
 ried. Any marriage contrary to law in any respect 
 is in that respect illegal, and any marriage by which 
 the parties have become completely husband and 
 wife is valid. 
 
 A marriage per se and without any judgment 
 or decree, invalid for all intents and purposes no 
 matter in what proceeding or in what court the 
 question arises, is called a void marriage. Thus, if 
 a man, being already married, marries another 
 woman, his marriage is invalid to all intents and 
 purposes without any judgment or decree, whether 
 in a proceeding betw^een the parties to settle the 
 question, or in a proceeding after his death in which 
 his issue claim as legitimate. A marriage which is 
 valid until avoided is called a voidable marriage. 
 
 A marriage may be valid to all intents and pur- 
 poses unless and until duly avoided, when it be- 
 comes void ab initio. A marriage may be void for 
 all intents and purposes unless and until duly con- 
 
 69
 
 WOMAN UNDER THE LAW 
 
 firmed when it becomes valid ab initio. To this 
 class belong marriages which for incompleteness or 
 unreality of consent are void as lacking the essen- 
 tials of a contract; these are inchoate and complete 
 rather than voidable marriages. In North Carolina, 
 Alabama and Maryland, a marriage invalid for want 
 of age may be avoided or confirmed with or without 
 judicial proceedings. 
 
 It is, therefore, very important to have some 
 means of determining to w^hich class of marriages a 
 given imperfect or illegal marriage belongs, and 
 the matter being complicated, a lawyer should be 
 consulted in all cases. Every woman may bear in 
 mind, however, that in determining the validity of 
 any marriage, it is necessary to decide first, by the 
 laws of what state or country its validity is to be 
 tested. The capacity of the parties is controlled, 
 according to different views, by the law of the place 
 of the parties' domicile, or of the place where the 
 marriage ceremony is performed; and the necessity 
 and sufficiency of the ceremonies and consumma- 
 tion by the law^ of the place where they are married. 
 
 The law as to consent is the same everywhere. 
 The mental capacity necessary to enable a party to 
 marry (or to confirm his marriage), according to 
 w^ell-settled law, is such as renders him capable of 
 understanding the nature of the act and its conse- 
 quences. 
 
 This is a true statement of the law^, but in 
 everyday domestic life as we see it, if an under- 
 standing of the consequences of matrimony is a 
 true standard of judging mental capacity, two- 
 thirds of all the married persons on the earth should 
 be adjudged insane. Most persons about to marry 
 fail to realize that matrimony is a duty and a disci- 
 pline as well as a delight. The principle of repro- 
 duction stands next in importance to its elder born 
 
 70
 
 MARRIAGE 
 
 correlative, self-preservation, and is equally a fun- 
 damental law of existence. It is the blessing which 
 tempered with mercy the justice of expulsion from 
 Paradise. It was impressed upon the human crea- 
 tion by a beneficent Providence, to multiply the 
 images of himself, and thus to promote his own 
 glory and the happiness of his creatures. Not man 
 alone, but the whole animal and vegetable kingdom 
 are under an imperious necessity to obey its man- 
 dates. 
 
 From the lord of the forest to the monster of 
 the deep — from the sublety of the serpent to the 
 innocence of the dove — from the elastic embrace 
 of the mountain kalmia to the descending fructifica- 
 tion of the lily of the plain, all nature bows submis- 
 sively to this primeval law. Even the flow^ers which 
 perfume the air with their fragrance, and decorate 
 the forests and fields with their hues, arc but cur- 
 tains to the nuptial bed. The holy state of matri- 
 mony was ordained by Almighty God in Paradise, 
 before the fall of man, signifying to us that mys- 
 tical union which is between Christ and his Church, 
 but lust, money and w^ealth are too often the moving 
 causes that lead to matrimonial alliances, w^ith Satan 
 as the bell cow and to the tune of the "Devil's 
 Dream. " 
 
 The want of capacity to marry must exist at 
 the time of marriage; paroxysms of insanity before 
 the marriage or the development thereof afterwards, 
 w^ill not suffice. It would be a hard rule indeed that 
 would permit a man who has married a woman w^ho 
 later in life becomes insane to put her aw^ay on ac- 
 count of her inexpressibly sad misfortune. It is 
 to the credit of our common humanity that there 
 cannot be found in all the range of judicial proceed- 
 ings, a single case that held that insanity is or could 
 be a cause for divorce. 
 
 71
 
 WOMAN UNDER THE LAW 
 
 The marriage of an insane person during a 
 lucid interval, is, in the absence of statute, valid; 
 but the burden of proof lies on the party alleging 
 the lucid interval. A person attacked with delirium 
 tremens may have a lucid interval and may contract 
 a valid marriage during such lucid interval. Mere 
 intoxication is not sufficient to render a marriage 
 invalid; but if it has caused complete unconscious- 
 ness or madness, or has been produced by fraud, the 
 marriage is void. 
 
 Deaf and dumb persons are not idiots in law 
 and are, therefore, mentally competent to marry. 
 The performance of the marriage ceremony and 
 continued cohabitation " 'till death" with a person 
 of unsound mind will not constitute a legal marriage 
 or give claim to dow^er or curtesy in his or her 
 estate. 
 
 Impotence is no impediment to marriage in 
 the absence of ecclesiastical jurisdiction. Under 
 the ecclesiastical law impotence rendered a marriage 
 voidable and in most states there is some statutory 
 provision rendering impotence an impediment to 
 marriage or cause for divorce. No rule already laid 
 down and statute declaring a marriage void for im- 
 potence would be held to render it voidable only as 
 under the ecclesiastical law, and likewise statutes 
 declaring impotence a cause for divorce w^ill be 
 construed to render it a cause for nullity. 
 
 The marriage of a man and woman related by 
 blood or by marriage w^ithin certain named degrees 
 may be under the criminal law^ incest, under the 
 ecclesiastical law, voidable, or by express statute, 
 void. This disability is based remotely on the laws 
 (so called) of Moses as contained in the eighteenth 
 chapter of Leviticus. Marriages defective for this 
 cause are, as a general rule, valid unless duly avoided 
 by a nullity suit. Local statutes should be consulted 
 
 72
 
 MARRIAGE 
 
 in this as in all other matters of statutory law. No- 
 where in this country is marriage with a deceased 
 wife's sister invalid except in Virginia. 
 
 A slave cannot marry because he cannot make 
 a valid contract, and because the duties of a slave 
 are inconsistent with those of the husband or M^fe; 
 also because a slave is property, and being property, 
 has not the legal capacity to make a contract, and is 
 not entitled to the rights or subjected to the liabili- 
 ties incident thereto. 
 
 In many states the marriage of persons of 
 different race, as whites and negroes, or whites and 
 Indians, is forbidden and is made a crime (misceg- 
 enation), and the statute may also render such mar- 
 riages void. Such statutes are constitutional and 
 do not conflict with the fourteenth amendment, or 
 civil rights bill. 
 
 Owing to the great intermingling of the races, 
 it is often difficult to determine whether a person is 
 a white or negro. This depends upon the term of 
 the statute. A mulatto is not usually a negro, but 
 is the child of a negro and a white person; not the 
 child of a mulatto and a white person; and it is held 
 by the Virginia Courts that where the negro must 
 have one-fourth negro blood, one drop less than 
 one-fourth will make him white. 
 
 A man cannot have at the same time two 
 wives, or a woman two husbands; but one w^ho has 
 married once cannot marry again unless such first 
 marriage is void, or voidable, and has been duly 
 avoided; or, if valid, has been dissolved by death 
 or divorce. Such a second marriage would be both 
 invalid and illegal. To illustrate, — the marriage 
 of a woman with a man whose wife by a former 
 marriage is still living and undivorced, is void and 
 her subsequent marriage with another is valid 
 although her husband by such void marriage is liv- 
 
 73
 
 WOMAN UNDER THE LAW 
 
 ing; again, a woman on discovering she had mar- 
 ried an impotent, could not, without having such 
 marriage decreed void, marry anyone else. 
 
 In most of the states, statutes provide that 
 where a party has been absent and unheard of or 
 beyond the seas for five or seven years, the other 
 party shall not be punishable for marrying again, 
 but such statutes would not apply to cases where 
 the party marries a second time knowing the 
 absent party is living ; nor do they render the second 
 marriage valid if the first really existed, though in 
 some states the statutes expressly state that a second 
 marriage must be declared void and thus made void- 
 able simply. In general, life is presumed to con- 
 tinue for seven years after the party has disap- 
 peared, but if a party supposing his wife dead mar- 
 ries w^ithin seven years and the w^ife is never heard 
 of afterwards, it will generally be presumed not 
 only that she is dead but that she died before he mar- 
 ried again. If a second marriage is had, it is not 
 voidable merely, even where a statute provides that 
 it may be decreed null, but no decree is necessary, 
 and it is void ab initio. Though a man marries never 
 so often, he can have but one lawful wife living. So 
 long as she is living and the marriage bond remain 
 in full force, all his subsequent marriages w^hether 
 meretricious, or founded in mistake and at the time 
 supposed to be lawful, are utterly null and void. 
 
 No decree of divorce is necessary to annul such 
 subsequent marriage, for it never had any legal 
 existence. Such w^as clearly the common law. This 
 is not altered by the fact that statutes provide for 
 actions to annul such marriages. Courts w^ill avoid, 
 if possible, an attitude which would give a person 
 two spouses at the same time. 
 
 In Massachusetts when a marriage is dissolved 
 on account of the prior marriage of either party, 
 
 74
 
 MARRIAGE 
 
 and it appears that the second marriage was con- 
 tracted in good faith and with the full belief of the 
 parties that the former husband or wife was dead, 
 that fact should be stated in the decree of divorce 
 or nullity; and the issue of the second marriage 
 born or begotten before the commencement of the 
 suit, shall be deemed to be the legitimate issue of 
 the parent capable of contracting the marriage. In 
 general, the innocence of one of the parties will 
 make the second marriage none the less void though 
 by the Spanish and civil law a woman who is de- 
 ceived into a marriage with a married man has the 
 rights of a wife and her children are legitimate. 
 
 In Spanish law, the consort who enters into 
 matrimony in ignorance that her husband has a 
 partner or wife living (or of other impediment to 
 the marriage) is in law not only innocent of crime 
 but has all the rights, incidents and privileges per- 
 taining to lawful marriage; and these are continued 
 as long as there is ignorance of the other or former 
 marriage or other impediment to the second mar- 
 riage; and in some states she has been allowed 
 alimony. 
 
 In a New York case, A who had married B, 
 married C at eleven o'clock the same day that he 
 was divorced from B, the divorce from B not having 
 been granted until 2 o'clock, but A and C having 
 acted in good faith, the marriage was held valid. 
 
 When a party who is already married goes 
 through the form of, or contracts a second marriage, 
 he or she, or both parties, may be guilty of the 
 crime of bigamy or polygamy. Section 5253 of the 
 Revised Statutes of the United States, omitting its 
 exceptions, is as follows: "Every person having a 
 husband or wife living who marries another whether 
 married or single, in the territory over which the 
 United States have exclusive jurisdiction, is guilty 
 
 75
 
 WOMAN UNDER THE LAW 
 
 of bigamy and shall be punished by a fine of not 
 more than $500.00 and by imprisonment for a term 
 of not more than five years." Bigamy was not a 
 felony at common law; indeed, according to that 
 law, it was not a crime of w^hich the ordinary com- 
 mon law tribunal took cognizance at all; it was 
 originally considered of ecclesiastical cognizance 
 exclusively. Whether the English statute of 1 604 
 is in force in the United States is doubtful; it is in 
 Maryland, but not in Pennsylvania. In prosecu- 
 tions for bigamy, a marriage in fact must be proved 
 and may be proved by cohabitation and the con- 
 fessions of the party, but the testimony to justify 
 conviction must be clear, strong and convincing. 
 The indispensable evidence to support the prosecu- 
 tion for bigamy, is, that the defendant had a former 
 husband or wife living; a subsisting, valid, prior 
 marriage subjecting to its duties and conferring its 
 rights. If, therefore, the first marriage is void, the 
 offense has not been committed, but if it is merely 
 voidable, contracted under disabilities or impedi- 
 ments which render it capable of confirmation or 
 avoidance, as the party may elect, it is a marriage in 
 fact until avoided, and the second marriage while it 
 remains a marriage in fact, is criminal. Ignorance 
 of the fact of the other's marriage may excuse the 
 unmarried party, but, as a rule, ignorantia legis 
 neminem excusat. A decree nisi does not dissolve 
 a marriage, and the parties cannot marry again until 
 it has been made absolute. In Massachusetts a de- 
 cree of divorce nisi under the statute of I 867 w^as 
 granted, which by its terms, was to be made absolute 
 on notice after six months publication "unless suf- 
 ficient cause to the contrary appear." Within six 
 months the libellant, believing that he had obtained 
 a divorce and was at liberty to marry again, married 
 another woman and had sexual intercourse with 
 
 76
 
 MARRIAGE 
 
 her. It was held that the second marriage was 
 illegal and void and the libellant was not entitled 
 to have the decree of divorce made absolute. If 
 there has been any appeal from a decree of divorce 
 and the appeal is sustained, an intervening marriage 
 of either party would be void, and so would a mar- 
 riage solemnized on the day before the entry of the 
 decree absolute of a decree nisi in favor of one of 
 the parties. An absolute divorce dissolves the rela- 
 tion of husband and w^ife, and all rights and obliga- 
 tions dependent upon the existence of the marriage 
 relation are extinguished. The parties are no longer 
 husband and wife but are permitted to marry at 
 pleasure. 
 
 A limited divorce, or a divorce a mensa et 
 thoro, does not dissolve the relation of husband and 
 wife and neither can marry again, but such second 
 marriage, though invalid, does not constitute 
 bigamy. A prohibition against a marriage after a 
 divorce of (generally only) the guilty party for a 
 certain time, or except on certain conditions, is 
 sometimes contained in a statute, as in New York, 
 and is sometimes entered by a court as a part of the 
 decree of divorce under the authority of the statute, 
 as in Maryland, although in the latter state it is 
 now very unusual for such a prohibition to be put 
 into the decree. But no such prohibition, by a 
 court, is valid unless it is authorized by statute. 
 There is no authority in the court to impose any 
 restraint upon a second marriage when a dissolution 
 from the bonds of matrimony is adjudged. It is 
 usually said that a divorce valid where granted is 
 valid everywhere, but such a rule is neither strictly 
 correct nor of much assistance. The validity of the 
 divorce may be limited to a state where it is granted, 
 if granted in a mode which neither law nor comity 
 requires other states to recognize; or it may extend 
 
 77
 
 WOMAN UNDER THE LAW 
 
 throughout the United States if granted in one of 
 the states by virtue of the "full faith and credit" 
 clause of the constitution; or it may extend every- 
 where by comity and international law. A divorce 
 may be valid as to one party and not as to the other, 
 and it may destroy the marriage status and yet not 
 affect certain property or personal right of the 
 parties. The following general rules may be stated : 
 ( 1 ) A divorce granted by a divorce court in 
 due conformity with the law of such court is valid 
 in the state where it is granted. 
 
 (2) Such a divorce, if both parties are domi- 
 ciled in such state, or if only one of them is so 
 domiciled and the other is duly served with process 
 in such state or voluntarily appears in the suit, is 
 valid throughout the United States by virtue of the 
 United States Constitution and practically every- 
 where by the principles of international law. 
 
 (3) Such a divorce, if only one of the parties 
 is domiciled in such state, and the other, though not 
 duly served with process, had an actual notice of 
 the suit and an opportunity to defend it, would 
 probably be held valid everywhere by comity as no 
 injustice w^ould be done. 
 
 (4) Such a divorce, if only one of the parties 
 is domiciled in such state, and the other has no act- 
 ual notice at all of the suit, but a mere notice by 
 publication, would probably be held valid in such 
 other states, and by their legislators or courts w^hich 
 have adopted the policy or recognize the justice 
 of divorce granted on constructive notice, but not 
 such other states as have not adopted such policy 
 but regard it as contrary to natural justice except 
 so far as this is necessary under the United States 
 Constitution. That is to say, — except as to the 
 status of the party domiciled and the property 
 situate in the state w^here the divorce was granted. 
 
 78
 
 MARRIAGE 
 
 (5) Such a divorce, if neither of the parties 
 were domiciled in the state granting the divorce, 
 has no extra-territorial validity although both parties 
 submitted themselves to the jurisdiction of the 
 court. 
 
 These rules, however, have not taken the 
 effect of fraud into consideration. A statute pro- 
 viding in general terms that the guilty party shall 
 not marry after divorce applies only to divorces 
 granted within the state. But whether the prohibi- 
 tion has any effect out of the state in which the 
 divorce is granted has been much disputed. In 
 most states such a prohibition is regarded as a 
 penalty. In Massachusetts it has been held that a 
 person against whom a divorce has been obtained 
 for adultery in another state by the law of which in 
 such a case both parties may marry again, may con- 
 tract a valid marriage in this Commonwealth. A 
 New Yorker, prohibited by the New York court, 
 has but to step into New Jersey to marry and the 
 New York courts will hold the marriage valid. 
 
 Mutual consent is the very essence of the mar- 
 riage, and parties cannot become husband and wife 
 without it. A mere marriage ceremony cannot 
 make a man and woman husband and wife as we 
 have seen ; to illustrate, — a marriage ceremony 
 though actually and legally performed when it was 
 in jest and not intended to be a contract of marriage, 
 and it was so understood at the time by both parties 
 and is so considered and treated by them, is not a 
 contract of marriage. Intention is necessary as in 
 every other contract; or, if they go through the 
 forms of marriage supposing them to be prelimi- 
 naries, it is no marriage; nor can sexual intercourse 
 make a marriage, the parties knowing or intending 
 it to be unlawful. It is indispensable to marriage 
 whether under the statute or at common law that 
 
 79
 
 WOMAN UNDER THE LAW 
 
 the parties consent to be husband and wife, present- 
 ly, and though cohabitation following an engage- 
 ment is evidence of such consent, it is not conclu- 
 sive but only prima facie evidence of it and as such 
 open to rebuttal by contra-proof, though at the time 
 of the marriage ceremony or consummation mutual 
 consent is wanting because one of the parties is 
 mentally incompetent, or is not real because of er- 
 ror, fraud or duress, and the marriage is therefore 
 void. The necessary consent may be subsequently 
 given w^hen the party becomes sane, or later regains 
 his freedom or discovers the deception or mistake, 
 and the marriage may thus be confirmed. Consent 
 may be absent owing to error, fraud or duress. 
 
 The mistake of person, but nothing else, affects 
 the validity of the marriage. Thus, if a man and 
 w^oman go through a marriage ceremony in mas- 
 querade, one supposing the other to be some one 
 else, it is no marriage; although novelists and 
 dramatists give validity to marriage in masquerade 
 w^here the parties w^ere entirely mistaken as to the 
 person w^ith whom they are united. 
 
 If a rogue, by pretending to be a known 
 respectable man and assuming his name induced a 
 woman to go through the ceremony of marriage, 
 there would be no marriage, though this as all other 
 mistakes induced by the other party, belongs rather 
 to the subject of fraud. Mistakes of character, for- 
 tune, and health make no difference, for the parties 
 take each other for better or for worse. Nothing 
 could be more dangerous than to allow those who 
 have agreed to take each other in these terms to be 
 permitted to say that one of the parties is worse than 
 expected. Deceit or false representations which 
 induce consent, especially where the deceived party 
 is weak in mind or young and more certainly if there 
 
 80
 
 MARRIAGE 
 
 has been no consummation, will invalidate a mar- 
 riage. 
 
 In a Michigan case, an old man who had lost 
 his eyesight and was more or less deaf and other- 
 w^ise broken, w^as put under the influence of liquor 
 and drugs and induced to marry a woman he had 
 no affection for, but who wanted his money. The 
 marriage was annulled. A girl of fifteen w^as in- 
 veigled into marriage by her father's coachman who 
 obtained both her consent and the celebration of 
 the marriage by falsehood and fraud, and where 
 she repudiated the marriage before consummation. 
 It was held void. So also where a man induced a 
 woman to go through a regular marriage service 
 pretending it to be a mere betrothal; so where a 
 felon by assuming a false name and character in- 
 duces a woman to marry him and she repudiates the 
 marriage before consummation ; so, where a party 
 is physically incompetent and conceals the fact; or 
 a woman who is pregnant by another man conceals 
 it; but it is not fraud if the pregnancy is by the man 
 whom she marries, nor if he has been put on his 
 guard as to her virtue by ante-nuptial connection 
 with her. On the other hand, mere ante-nuptial 
 unchastity, concealed, is no fraud except by statute, 
 nor are false representations as to character, health 
 or fortune, nor false pretenses of affection, nor 
 marrying to escape punishment with the intention 
 to immediately desert. Nor the mere assumption 
 of a false name. A conspiracy by which one of the 
 parties with the help of others, brings about a mar- 
 riage for an ulterior object, may be in this sense 
 fraud, but the fraud must be upon one of the parties. 
 Third parties cannot complain. No more startling 
 or absurd proposition can be conceived than that a 
 marriage legal in form, acquiesced in and held 
 obligatory by the parties, and recognized as valid 
 
 81
 
 WOMAN UNDER THE LAW 
 
 by law, might be annulled at the insistence of a 
 third person, for any cause whatever. 
 
 If a party marries under duress the marriage is 
 invalid. It would seem to require no argument to 
 show that a consent given under actual duress, ob- 
 tained by force, is no consent; and edthough the 
 form of marriage has been observed, the essence 
 of the contract is wanting. It would not suffice that 
 he married unwillingly; he must have been forced 
 by fear of bodily harm, but it is not duress when a 
 man marries a woman after seducing her, to avoid 
 a legal prosecution. Marriage contracted through 
 fear of imprisonment is not void, when the fear was 
 not imposed as an inducement to the marriage, but 
 arose from the arrest and prosecution of the party 
 for bastardy. Duress cannot be predicated of com- 
 pulsion to discharge a legal duty. To illustrate: — 
 A promises to pay B one hundred dollars and failing 
 to keep his promises B sues him for breach thereof 
 and compels him to pay. That is compulsion but 
 it is not duress. A valid marriage contract may be 
 expressed in w^ords, w^ritten or oral, or in signs, or it 
 may be implied from conduct. Letters are often 
 evidence of a contract, but it is doubtful w^hether 
 parties can actually marry by letter, by telephone or 
 by proxy. Marriages by proxy have taken place at 
 various times in history, generally between mem- 
 bers of royal families of different countries, but in 
 this country a more strict adherence to certain fixed 
 rules of law is required. The contract must be, in 
 substance, to be husband and wife under the law. 
 
 If the object of the parties be the assumption of 
 the legal status of marriage, an agreement to live 
 together for life may suffice, provided it creates 
 the union of one man and one woman "so long as 
 they both shall live," to the exclusion of all others, 
 by an obligation which, during that time, the parties. 
 
 82
 
 MARRIAGE 
 
 cannot of their own volition and act dissolve, but 
 which can be dissolved only by the state. Nothing 
 short of this is marriage, nor will an agreement for 
 a conjugal union such as their consciences and relig- 
 ion sanction suffice, nor for cohabitation as long 
 as they can agree. If legal marriage is their object, 
 any stipulations inconsistent with the law are simply 
 void. The apparent contract is not affected by a 
 secret reservation of one of the parties. After tak- 
 ing a woman as his wife, she deeming herself such, 
 a man will not be permitted to say he meant only 
 to take her as his mistress. But if both parties have 
 or know of an ulterior object, which alone is meant 
 to be secured by an apparent contract, there is no 
 marriage; as where a man w^rote a letter to a woman 
 he had seduced, acknowledging her as his wife, it 
 being their sole object to gain admission for her to 
 a lying-in hospital, or to avoid another alliance by 
 pretending to be married. 
 
 The contract may be intended to take effect at 
 once or in the future; but it must be to be husband 
 and wife thenceforth; it must contemplate the 
 present assumption of the marriage status. Thus: 
 — "This is your wedding ring, we are married," fol- 
 lowed by cohabitation, may be a good marriage 
 contract. It is not sufficient on the other hand, to 
 agree to present cohabitation, and a future regular 
 marriage when more convenient, or w^hen a wife 
 dies, or when a ceremony can be performed; nor 
 can, "I will marry you in six weeks if you will sleep 
 with me tonight," be anything more than a promise 
 to marry. To this rule there is one exception. In 
 one case, a contract looking to a future assumption 
 of the marriage status is sufficient. In states where 
 no marriage celebration is necessary, and when such 
 contract is followed by sexual intercourse between 
 the parties, the law, so as not to presume fornica- 
 
 83
 
 WOMAN UNDER THE LAW 
 
 tion presumes that parties who have promised to 
 marry mean sexual intercourse, following such 
 promise, to be the consummation of such agree- 
 ment. This has been held in Missouri; but this 
 presumption may be rebutted by any facts which 
 show that the parties knew or intended their inter- 
 course to be illicit, as where, at the time, they were 
 looking forward to being married with a ceremony. 
 
 In many states no ceremony of any kind is 
 essential to a valid marriage, and in such states a 
 contract betv/een parties competent to marry con- 
 stitutes marriage, known, as the case may be, as 
 marriage per verba de praesenti, or as marriage per 
 verba de futuro cum copula. In states where a cele- 
 bration is necessary this contract must exist at the 
 time of such ceremony or afterwards. 
 
 All states have statutes providing for the cele- 
 bration of marriages ; what permission must be got- 
 ten or notice given before the marriage; w^ho must 
 perform the marriage ceremony and what record 
 of it must be made. But generally such provisions 
 do not affect the validity but only the legality of the 
 marriage. Whether or not any of such provisions 
 must be complied with to render the marriage valid 
 depends : 
 
 ( I ) Upon whether by the pre-existing com- 
 mon or unwritten law, any such formality were 
 necessary. 
 
 (2) Whether, if it were not, there is a provis- 
 ion in the statutes stating that non-compliance with 
 it shall render a marriage void; and it is a general 
 rule that no celebration of marriage is necessary at 
 all except in states in w^hich it is held that a celebra- 
 tion was necessary at common law, and in states 
 where the statute, as in Kentucky, contains words 
 of nullity. 
 
 84
 
 MARRIAGE 
 
 No celebration is necessary by the law of na- 
 ture, or by the canon law prior to the Council of 
 Trent, or by the civil law, or by the law of Scotland. 
 In England, after much hesitation, it is settled that 
 it is, and this view has been sustained in Maryland, 
 Massachusetts and North Carolina; but the con- 
 trary has been held in Tennessee, and by the 
 Supreme Court of the United States, and in Ala- 
 bama, California, Georgia, Illinois, Iowa, Kentucky, 
 Michigan, Minnesota, Mississippi, Missouri, New 
 York, Ohio, Rhode Island and Pennsylvania, and 
 the English decision has been disapproved in 
 Canada. One was necessary under the Mexican 
 law^, if there ever was any Mexican Law. 
 
 The necessity of the celebration depends upon 
 the law of the place where the parties enter into the 
 contract which is essential to a valid marriage. 
 Thus, if the parties desire to marry in Maryland 
 they must not only have a celebration but a religious 
 one, i. e. to constitute a valid niarriage under the 
 laws of that state some religious ceremony must be 
 super-added to the civil contract. If, on the other 
 hand, the Marylanders desire to avoid this, they 
 need only to step over the line into Pennsylvania. 
 
 Supposing some ceremony to be necessary, it 
 is another question to determine what portion of 
 the various ceremonies may be omitted. For the 
 ceremony or celebration of marriage includes not 
 only the act of a civil or religious officer declaring 
 the parties to be husband and wife, but the pre- 
 requisite authority for such act, and the duties 
 resulting therefrom ; not only the ceremony proper, 
 but the consent of parents, or license (consent of 
 the state), or banns (consent of the church) and 
 the registry of the fact that the marriage has been 
 celebrated. 
 
 85
 
 WOMAN UNDER THE LAW 
 
 Consent of parents, license, publication of 
 banns, registry of the marriage, though all or some 
 of them are everywhere necessary to the legality 
 of the marriage, are nowhere, under English or 
 American law, necessary to the validity thereof; 
 they w^ere not so by the pre-existing law, and no 
 statute has made them so. Parents consent is a 
 mere matter of form, and generally not necessary, 
 under the statutes, to the validity of a minor's mar- 
 riage. We have seen that most of the states hold 
 that compliance with the requirements of statutes 
 is not necessary to the validity of the marriage. To 
 constitute a valid marriage by the common law of 
 England it must have been celebrated in the pre- 
 sence of a clergyman in holy orders; the fact that 
 the bridegroom is himself a clergyman in holy or- 
 ders, there being no other clergyman present, w^ill 
 not make the marriage valid, and there could have 
 been no valid marriage in England before the re- 
 formation without the presence of a priest, Epis- 
 copally ordained. The principles of freedom of 
 thought, "new thought " and statutes have extended 
 the right to celebrate marriages to ministers of any 
 church, and in most states, to judges, chancellors 
 and magistrates; and special provisions have been 
 made for Quakers. If the minister or judge, etc., 
 w^ere so de facto and the parties have acted in good 
 faith, the marriage is good, though he were not 
 minister, or judge, de jure. 
 
 As w^e have seen, parties cannot marry them- 
 selves with a ceremony when a celebration is re- 
 quired; there must be a celebrant. The celebrant 
 must be a third party ; a minister cannot marry him- 
 self. He must not only be present, but must be 
 there as the celebrant of the marriage. The cele- 
 brant need only take notice that the parties are 
 before him to be married, and pronounce them hus- 
 
 86
 
 MARRIAGE 
 
 band and wife. Thus, at a marriage by an Episcopal 
 clergyman, the direction contained in the Rubric 
 respecting the opening address to the congregation, 
 the adjuration to the persons about to be married 
 as to confessing any lawful impediment to their 
 union, and the putting on of the ring, are not abso- 
 lutely essential to the validity of the marriage; the 
 essential part of the service is the reciprocal taking 
 each other for wedded wife and wedded husband. 
 In the case of the religious celebration, the man and 
 woman need not belong to that religion; thus, Prot- 
 estants may be married by a Roman Catholic priest. 
 A marriage celebration will have no effect if the 
 parties are not at the time competent to marry; nor 
 will it, if they do not intend to marry, though their 
 consent may be presumed from their going through 
 the ceremony, and to negative the presumption the 
 absence of consent must be clearly shown. It is 
 only where no celebration is had that a consumma- 
 tion is ever required, but from a consummation a 
 celebration is often presumed. 
 
 The consummation of marriage may be either 
 subsequent sexual intercourse between the parties 
 or the assumption of the rights, duties and obliga- 
 tions of husband and wife, from which such inter- 
 course may be implied. There are two principal 
 ends of marriage — a lawful indulgence of the pas- 
 sions to prevent licentiousness, and the procreation 
 of children under the shield and sanction of the 
 law. If the parties know their intercourse to be 
 contrary to law, even though it is sanctioned by their 
 religion, it cannot be an element of marriage, but is 
 mere fornication. 
 
 The question whether or not a valid marriage 
 has been formed between a man and a w^oman may 
 be relevant in any suit, before any tribunal, between 
 the parties; and whether or not the evidence ad- 
 
 87
 
 WOMAN UNDER THE LAW. 
 
 duced establishes a marriage must be judicially de- 
 termined on proof, or this question may be the issue 
 in a suit instituted in a particular tribunal by one of 
 the parties against the other, or by some third party 
 against them both for the express purpose of deter- 
 mining the validity of an alleged marriage between 
 them; and whether or not there has been a valid 
 marriage is judicially determined by a decree. 
 
 In proving marriage, four different presump- 
 tions may be brought into play: — 
 
 ( 1 ) The general presumption in favor of 
 marriage ; 
 
 (2) That of innocence; 
 
 (3) That of Hfe; and 
 
 (4) That of the due performance of their 
 duties by public officers. All of these presumptions 
 are rebuttable. It is doubtful whether they will all 
 act in favor of third parties; — for instance, credit- 
 ors. 
 
 It is not necessary for a party alleging a mar- 
 riage to prove, in order to make out a prima facie 
 case, the separate existence of each of the essentials, 
 for marriage is favored in law. Thus, if the cele- 
 bration of a marriage be proved, the contract, the 
 capacity of the parties, in fact, the validity of the 
 marriage is presumed. So, if the contract be proved* 
 the capacity of the parties is presumed. To illus- 
 trate, — A husband left his home in Mississippi, 
 October 30, 1 900, and went to Louisiana on busi- 
 ness, where he was last heard from by letter to his 
 wife, dated November 30, 1900, announcing that 
 he was then sick in bed, and would return as soon 
 as he was able to travel. He was habitually deli- 
 cate in health, and his domestic relations had always 
 been most agreeable. It was the belief of his family 
 that he was dead, and in January, 1905, his wife 
 married again. The absent husband was never 
 
 88
 
 MARRIAGE 
 
 heard of alive. Under the circumstances the absent 
 husband must be presumed dead, and the second 
 marriage valid. 
 
 The presumption of innocence sometimes 
 gives right to the presumption of marriage. A man 
 and woman cohabiting without being married are 
 guilty of f ornification ; so when such co-habitation 
 is under color and claim of marriage, a marriage is 
 often presumed; but such presumption is to save the 
 innocence of the parties, and will not arise if it will 
 leave or involve one of them in guilt, — as if a man is 
 so cohabiting with two women, or if one of the 
 parties is proved to be married to some one else. 
 So, sometimes, if a second marriage is proved, a 
 previous divorce of the first one may be presumed, 
 though in general a divorce can be proved only by 
 the record; so death may, in such case, be presumed. 
 
 A party is, independently of statute, presumed 
 alive for seven years after he is last heard of. After 
 seven years he is presumed dead. But when he is 
 presumed to be dead there is no presumption as to 
 the precise time of his death. This must be deter- 
 mined by the court from all the facts in the case; 
 but in marriage cases the presumption of life often 
 conflicts with that of innocence, as where a hus- 
 band, believing his wife dead, but having heard from 
 her within seven years, marries again. In such 
 cases the two presumptions neutralize each other, 
 and the court (judge or jury) decides as a matter 
 of fact whether or not at the time of the second mar- 
 riage the first was dissolved by death. The leaning, 
 however, is generally tow^ards the presumption of 
 innocence. That the celebrant, as a public officer, 
 has done his duty, is presumed; thus, — if a marriage 
 celebration be proved, it is presumed that the cele- 
 brant was duty authorized, that the proper prelim- 
 
 89
 
 WOMAN UNDER THE LAW 
 
 inaries, as procuring a license, had been complied 
 v/ith; that the place and the forms used were legal. 
 In general, the proof of the marriage may be 
 direct or indirect ; evidence may be given of the fact 
 that competent parties have contracted marriage 
 ■with proper celebration and consummation, or of 
 the fact that they have lived together as husband 
 and v/ife, and have generally been reputed as such. 
 In some cases either kind of evidence will suffice; 
 in some, direct evidence is necessary. In a question 
 of a marriage vel non, the issue is the existence of 
 the essentials of a valid marriage ; if the celebration 
 of a marriage is proved, the validity of the marriage, 
 the contract and capacity of parties, is presumed as 
 already shown; if the contract of a marriage is 
 proved, if no celebration is necessary, the validity 
 of the marriage, and the capacity of the parties are 
 likewise presumed. So that, the celebration of the 
 contract may be the real issue. A contract without 
 a celebration is, of course, no evidence of the cele- 
 bration, but it is sometimes deemed so; in such cases 
 the marriage is said to be proved by indirect 
 evidence. The fact of the celebration is generally 
 proved by the record thereof, or by witnesses 
 present. The latter is considered stronger evidence, 
 but it is not necessary under the rule for the best 
 evidence to produce the record or the celebrant, un- 
 less, perhaps, the other evidence is purely circum- 
 stantial. The fact of the contract is generally 
 proved by cohabitation and repute, hereafter dis- 
 cussed. The distinction generally made between 
 proof of the fact of marriage and proof of the fact 
 of matrimonial cohabitation, applies properly only 
 to cases when a celebration is necessary to the 
 validity of the marriage, or is made an issue in the 
 case. 
 
 When the law requires a marriage to be 
 
 90
 
 MARRIAGE 
 
 recorded, such record or the proper copy thereof, 
 is direct evidence of the marriage, in criminal and 
 civil cases alike. On a prosecution for bigamy, the 
 marriage may be shown by a certified copy of the 
 marriage certificate, without an infringement of the 
 constitutional right of the accused to meet his wit- 
 nesses face to face. But such record proves only 
 what is required to be recorded, and is not conclu- 
 sive. Such evidence, too, are certificates given by 
 the celebrant to the parties, though this has been 
 denied; but the delivery and custody of such certif- 
 icate must be proven. This rule is simply in ac- 
 cord with the general rules of evidence relating to 
 the production and authentication of writings. So 
 private records kept by a clergyman, certainly after 
 his death; so entries in a family bible; so foreign 
 records, if this is consistent with the law of the 
 forum. But in such cases the identity of the parties 
 must alw^ays be show^n, though after lapse of time 
 slight evidence thereof will suffice. A valid decree 
 of divorce is, of course, evidence of a marriage; 
 there cannot be a divorce unless there has been a 
 marriage. 
 
 Any person present at the marriage may tes- 
 tify thereto, whether a third party or the celebrant, 
 and in general even parties themselves. Such w^it- 
 nesses need not be able to testify to the sufficiency 
 of the celebration ; that is presumed until the con- 
 trary is show^n. The celebrant may testify to his 
 own qualifications. And, in general, it is sufficient 
 to show that he was in the habit of acting in this 
 capacity, or that he held himself out as qualified 
 in the particular case. Upon a trial for bigamy 
 evidence that the person by whom a marriage cere- 
 mony w^as performed was reputed to be and that 
 he acted as the magistrate or minister is admissible, 
 and is sufficient prima facie proof of his official or 
 
 iT"
 
 WOMAN UNDER THE LAW 
 
 ministerial character. In pedigree cases, members 
 of the family may testify that a marriage was 
 reputed in the family to have taken place. Reputa- 
 tion or hearsay is admissible in all matters of pedi- 
 gree ; and so the repeated declarations of the father 
 that he had married and by the marriage had two 
 children, naming them; his recognition of them as 
 his legitimate children, their recognition of him as 
 their father, and of each other as brother and sister ; 
 and the fact that the marriage and legitimacy of the 
 children were spoken of and known in the family 
 are sufficient to prove the marriage of the father 
 and the legitimacy of the children. 
 
 By the common law, families were, by inter- 
 marriage, incapacitated from testifying for or 
 against each other. The common law excluded the 
 husband and the wife as a witness in any case, civil 
 or criminal, in which either was a party. The prin- 
 ciple of the rule required its application to all cases 
 in which the interests of husband or wife were in- 
 volved. Therefore, the wife is not a competent 
 witness against any co-defendant tried with her hus- 
 band, though it be not directly given against him. 
 Thus, a man being prosecuted for bigamy, his real 
 (first) wife could not prove their marriage. But 
 the husband or wife could prove the marriage in a 
 case affecting neither of them. Statutes have, in 
 many states, abolished this incapacity, entirely or in 
 part. But a statute abolishing incapacity from in- 
 terest does not affect incapacity from marriage. 
 Even by the common law, if no marriage exists, 
 there can be no incapacity from marriage; there- 
 fore, parties can prove that an alleged marriage 
 between them was no marriage, unless estopped, 
 or unless there is sufficient evidence before the court 
 to establish a prima facie marriage. Thus, in a pros- 
 ecution for bigamy the prisoner's real wife cannot 
 
 92
 
 MARRIAGE 
 
 testify against him, but his second wife can. She is 
 not a wife at all; hence, the reasons which would 
 prevent do not exist. Under the Maryland statute 
 a party cannot prove the marriage after the other 
 party's death; but can by Pennsylvania law. In 
 criminal prosecutions, as for bigamy or adultery, 
 the prisoner's confession of his marriage is sufficient 
 proof of it. In civil suits, the declarations and ad- 
 missions of the husband and wife are generally ad- 
 missible to prove their marriage; in the case of the 
 husband, being admissions against interest; and in 
 any case, being part of the res gestae of cohabitation 
 and repute. 
 
 When a marriage is proved by the fact that the 
 parties had lived together and were reputed to be 
 husband and wife, it is said to be proved by cohabi- 
 tation and repute. The facts that parties have 
 publicly acknowledged each other as husband and 
 wife, have assumed marriage rights, duties and 
 obligations, have been generally reputed in the 
 place of their residence to be husband and wife, are 
 relevant to prove a contract of marriage between 
 them, and consequently, in cases where no celebra- 
 tion is necessary, a valid marriage. In an early 
 Massachusetts case it was held that evidence that a 
 woman occupied the same bed with the defendant 
 in a tenement and was seen getting dinner and 
 doing other household duties there in his absence 
 was competent to prove her to be his wife. But in 
 cases where a celebration is necessary, evidence of 
 a contract only, is not relevant to prove the celebra- 
 tion; still, if the parties have cohabited, such evi- 
 dence may be, in certain cases, deemed relevant, on 
 the presumption already discussed, that such co- 
 habitation was lawful. Cohabitation and repute 
 may thus be direct or indirect evidence of a valid 
 marriage ; it is in neither case more than prima facie 
 
 §3
 
 WOMAN UNDER THE LAW 
 
 evidence, and may be rebutted by showing absence 
 of the essential contract or capacity ; whether it is so 
 rebutted or not being left to the court or jury to 
 determine from all the facts. As generally stated, 
 w^here parties live together ostensibly as man and 
 wife, demeaning themselves tow^ards each other as 
 such, and are received into society and treated by 
 their friends and relations as having and being en- 
 titled to that status, the law will, in favor of morality 
 and decency, presume they have been legally mar- 
 ried. Such presumption is generally rebutted by 
 showing that the parties intended their connection 
 to be illicit, or that there was an impediment to their 
 marriage. If, when the connection began, it was 
 intended to be illicit, this intention is presumed to 
 continue, unless evidence is produced of a change 
 of mind. If, when the connection began, the parties 
 desired or intended marriage, but an impediment 
 existed, and this desire or intention is shown to have 
 continued after the impediment was removed, and 
 if, at such later time, the parties cohabited, even 
 temporarily, in a place where marriage without 
 celebration is valid, their marriage is proved; and, 
 if they w^ere in a place where a celebration was 
 necessary, upon slight additional evidence, a new 
 celebration will be presumed; at all events, the jury 
 may decide in cases where proof by cohabitation 
 and repute is proper, whether or not there w^as at 
 any time a valid marriage. The weight of such 
 evidence must depend upon the circumstances of 
 each particular case. 
 
 In all cases, except when a celebration is al- 
 leged, as hereafter shown, in which no celebration 
 is necessary to the validity of the marriage, the mar- 
 riage may be proved by cohabitation and repute. 
 In all cases, except those mentioned hereafter, 
 though a celebration is necessary to the validity of 
 
 94
 
 MARRIAGE 
 
 the marriage, it may be proved by cohabitation and 
 repute. Tlius, this is sufficient to prove marriage 
 in actions by the widow for her dower, or marriage 
 rights, or for the death of her husband; by an heir; 
 by the husband and wife, a«, of detinue, or eject- 
 ment; or against the husband and wife; or by the 
 husband for slander of his wife; or against the hus- 
 band for a debt of his wife; in actions for neces- 
 saries; in cases of legitimacy; in suits for alimony; 
 and in divorce cases. 
 
 In all cases in which a party alleges that a mar- 
 riage was celebrated at a particular time and place, 
 he must prove that it was so celebrated at that time 
 and place, and cannot prove cohabitation and repute 
 to raise a presumption of a marriage at some other 
 time and place. 
 
 In all cases (if a celebration is necessary to the 
 validity of the marriage) when proof of a marriage 
 would render one of the parties criminally liable, as 
 in prosecutions for bigamy, adultery, or incest, and 
 in actions for criminal conversation, the celebration 
 must be proved. In such cases cohabitation and 
 repute is not evidence. 
 
 In setting up a marriage which took place in 
 another country or state, it is usual to prove first 
 the common law, then a marriage by contract or by 
 celebration, as required thereby. If the fact of a 
 celebration is proved, it is presumed in conformance 
 with the common law, though that the special re- 
 quirements of such law must be shown to have 
 been complied with, has been sometimes held. If 
 no foreign law be proved, there is a presumption 
 that it recognizes as a valid marriage any cohabita- 
 tion of competent parties with matrimonial consent. 
 And courts will not presume the existence of mar- 
 riage laws differing from those of the forum. A 
 foreign marriage may also be proved by proper 
 
 95
 
 WOMAN UNDER THE LAW 
 
 copies of the records. The more difficult the proof, 
 the less will be the strictness of the court. 
 
 In some of the states a statute provides for the 
 proof of marriage; thus, in Massachusetts where 
 the record of cohabitation and repute is evidence of 
 a marriage in any case; so in Minnesota. But the 
 California statute seems simply declaratory of the 
 law heretofore stated. 
 
 A suit brought for the purpose of having a 
 void marriage judicially declared to be void, or of 
 having a voidable marriage judicially made void is 
 called a nullity suit. These suits are frequently 
 called divorce suits in statutes and decisions, and 
 there seems to be precedent for so calling them, but 
 properly a divorce suit is a suit for the purpose of 
 dissolving a marriage and the consequences of a 
 divorce are very different from those of a decree of 
 nullity, as the latter does not only destroy marriage 
 rights, but declares they never existed. 
 
 A suit which may partake of the nature of a 
 nullity suit, but which in modern times is very rare, 
 is the suit of jactitation of marriage. This is where 
 a party whether a man or a woman, complains in 
 the ecclesiastical courts that another party falsely, 
 maliciously and without authority, boasts that they 
 are married. There are three defences ; ( 1 ) denial 
 of the boasting; (2) allegation of a marriage justi- 
 fying it; (3) or of authority to assert the marriage. 
 These suits are unknown in the United States, there 
 being no ecclesiastical courts. 
 
 As already stated, there are two kinds of nul- 
 lity suits; one, in cases where the marriage is void 
 or is voidable without decree, and the decree is 
 declaratory only; the other, in cases where the 
 marriage is voidable and requires a decree to render 
 it void. The two suits are distinct as to jurisdiction, 
 
 96 
 
 t 
 
 J
 
 MARRIAGE 
 
 procedure and causes, and the distinction must be 
 carefully maintained. 
 
 A marriage which is void per se ab initio, may, 
 by judicial decree, be declared void; such are mar- 
 riages void for want of capacity or celebration. Like- 
 wise a marriage which is voidable by the parties; 
 such are marriages voidable for lunacy, or want of 
 consent; for fraud, error or duress. In such cases 
 courts of equity, in the exercise of their ordinary 
 jurisdiction, independently of any provision of the 
 divorce law may pass such a decree. Other courts, 
 by special provision, such as divorce courts, may 
 pass such a decree. In general, either party may 
 complain; but one cannot allege his own fraud or 
 duress; nor can one allege w^ant of consent if he 
 has ratified the marriage. 
 
 A lunatic may apply, if he recovers his mind; 
 otherw^ise his guardian applies. A sane party who 
 has married a lunatic in ignorance and good faith 
 may also complain. Perhaps, even after the death 
 of the parties, a decree could be obtained on the 
 application of anyone interested. 
 
 Statutes sometimes provide for all the pro- 
 ceedings in these cases. 
 
 The decree in this class of nullity suits is simply 
 declaratory; it declares, it does not make, the mar- 
 riage void; it is a judicial determination of the status 
 of the parties, and though perhaps not binding on 
 persons not parties to the suit, it practically settles 
 the question of the validity or invalidity of the mar- 
 riage. Of course it settles the existence or non- 
 existence of any personal or property marriage 
 rights. 
 
 Jurisdiction in the United States to declare 
 void a marriage otherwise valid, as is the case w^ith 
 jurisdiction to grant a divorce, depends entirely 
 upon the statute. In England the ecclesiastical 
 
 97
 
 WOMAN UNDER THE LAW 
 
 courts alone granted divorces and declared mar- 
 riages void for the canonical impediments of im- 
 potence and consanguinity and affinity, and as no 
 courts in the United States have succeeded to the 
 ecclesiastical jurisdiction, courts of equity, for ex- 
 ample, cannot as such avoid a marriage for im- 
 potency or consanguinity. Statutes sometimes con- 
 fer this jurisdiction in unequivocal terms, but quite 
 often include it with divorce jurisdiction, providing, 
 for example, that a divorce may be granted for im- 
 potence. In such cases the word divorce w^ill 
 be construed to mean decree of nullity; and even 
 where jurisdiction in such cases is not expressly 
 given it has sometimes been held to be impliedly 
 given with divorce jurisdiction. Statutes also in 
 some states create additional causes for avoiding 
 marriages. As to the persons and their status, juris- 
 diction, as in divorce cases, depends upon domicile. 
 
 The principles applied and procedure as to the 
 canonical disabilities is like that of the ecclesiastical 
 court, and, in general, is like that in divorce suits. 
 
 The causes of nullity are those of the canonical 
 law, to wit: impotence, consanguinity and affinity; 
 and such as may be created by statute, as the ex- 
 istence of a previous marriage honestly supposed 
 to have been dissolved, under a New York statute, 
 and absence of a parent's consent under a Scotch 
 law^. In Scotland a marriage can, within a year, but 
 not afterwards, be avoided for want of parent's con- 
 sent. 
 
 A voidable marriage may, in general, be 
 avoided on the application of either party, but the 
 decree must be passed during the lifetime of both 
 parties or the marriage w^ill be binding. Under 
 statutes the state is sometimes given power to apply 
 for avoidance of the marriage where the cohabita- 
 tion is incestuous or otherwise criminal. Third per- 
 
 98
 
 MARRIAGE 
 
 sona who8« property rights arc affected should be 
 made parties defendant, and in some cases third per- 
 sons may even apply for a decree of nullity ; this is a 
 doubtful question and the weight of authority is 
 perhaps against such right. 
 
 The decree makes void what might otherwise 
 have been valid. In the absence of statute it renders 
 the marriage void ab initio; it declares no marriage 
 ever existed. Thus, the children are illegitimate; 
 the alleged husband has no rights in the alleged 
 wife's property, nor have his creditors; and the sale 
 of her chattel by him as husband is void. She can 
 sue him for her property which he has taken, or for 
 her services rendered to him before the decree. The 
 communications between them are not privileged 
 and a town settlement depending upon the marriage 
 is void. Such a putative marriage is, however, suffi- 
 cient consideration to support a marriage settle- 
 ment. Such a decree is usually conclusive on all 
 persons. Not being properly a decree of divorce, 
 alimony is not incident to it, though if there has 
 been a form of marriage, alimony pendente lite and 
 counsel fees will be allowed. Under statutes, the 
 effect of the decree is different ; it may make the 
 marriage null only from its date; the prior issue may 
 be legitimate; the court may have power to adjust 
 the property rights of the parties. 
 
 There are penalties in most states which parties 
 may incur by omitting the various ceremonies 
 prescribed for marriages. There are also various 
 crimes which may attend the entrance into an ille- 
 gal marriage such as fornication, adultery, mis- 
 cegenation, incest and bigamy. 
 
 99
 
 CHAPTER V. 
 HUSBAND AND WIFE 
 
 One of the fictions of the Common Law was, 
 that by marriage the husband and wife became one 
 legal person. By marriage, the woman lost her 
 legal identity and became civiliter mortua; she was 
 covered by or merged in her husband, was called a 
 "feme covert," and her condition was called "cover- 
 ture." In consequence of this fiction of unity of 
 person in husband and wife, neither the husband 
 nor the wife in the absence of statute provision 
 to the contrary, can grant the one to the other 
 an estate in possession during the lifetime of the 
 grantor. The rule itself is one of those stubborn 
 and senseless mandates of the common law which 
 requires absolute obedience from the courts. 
 
 As we have seen in chapter one, the existence 
 of the wife under the common law was hardly 
 recognized; her property became vested in the hus- 
 band (subject to some slight exceptions), and the 
 wife became legally a mere mema] of the husband. 
 From this principle arises the necessity, at law^, of 
 all conveyances and covenants being made through 
 the interposition of trustees. To the civil law this 
 fiction was unknown. In equity the civil law was 
 follow^ed to a great extent and the fiction of unity 
 was ignored. The Roman law treated the husband 
 and wife as distinct persons who might have sep- 
 arate estates. It enabled them to make contracts 
 and incur debts in their own names and permitted 
 the wife to be sued without her husband. 
 
 100
 
 HUSBAND AND WIFE 
 
 The course of modern legislation has been 
 universally to do away with this fiction in its strict- 
 ness, and to recognize the separate existence of 
 husband and wife. But great confusion has been 
 caused by the fact that a technical rule of construc- 
 tion has led many courts to limit to a few cases 
 statutes intended by legislatures to destroy this 
 fiction generally. The general though tardy ten- 
 dency of legislation in this country has been to make 
 husband and wife equal in all respects in the eye 
 of the law. The courts which have ever been cpn- 
 servative, construe these statutes in a spirit so nar- 
 row and illiberal as to almost entirely defeat the 
 intention of the lawmakers; but generally with a 
 promptness, enforced by female protest, a succeed- 
 ing legislature would reassert in a more unequivocal 
 form the same principles which the courts had be- 
 fore almost expounded out of existence. The fic- 
 tion of legal unity affected at common law all the 
 reciprocal capacities of husband and wife and many 
 of their mutual rights and obligations; and by as- 
 suming that it was the wife whose identity was lost, 
 gave rise to all the disabilities of married women. 
 To illustrate: husband and w^ife being one person 
 could not contract together or wrong each other 
 civilly or criminally, or sue each other; they could 
 not testify for or against each other, and a sale^^i^ ^ 
 trustee to his w^ife was like a sale to himself. 
 
 The wife being merged in the husband took his 
 name. If property vested in them with a third per- 
 son, they took one-half, instead of two-thirds. If 
 real estate vested in them they took one estate and 
 became tenants by entireties. 
 
 By the common law, contracts between hus- 
 band and wife are absolutely void for want of 
 parties and the wife's power to consent. A mere 
 personal executory contract between them is un- 
 
 101
 
 WOMAN UNDER THE LAW 
 
 qualifiedly void. In a Maryland case decided in 
 1 873, it was held that a deed from a married woman 
 of her separate estate, directly to her husband, is a 
 nullity ; and upon the death of the husband, he hav- 
 ing survived his wife, the prop>erty will descend to 
 her heirs at law. In Massachusetts a law was en- 
 acted in 1912 whereby conveyances of real estate 
 by deed might be made directly from one to the 
 other. 
 
 A wife can execute a power in favor of her 
 husband and can deal with him in her representa- 
 tive capacities; but the validity of any other con- 
 tract between them must be based either upon the 
 doctrines of equity or upon the provisions of some 
 statute. 
 
 In Equity the duality of husband and w^ife has 
 always been recognized, and so has been the capac- 
 ity of married women to hold, convey and charge 
 by contract property w^hich is called their equitable 
 separate property, or their sole and separate estate. 
 Any contract made directly between husband and 
 wife w^ill be valid in equity, if it would have been 
 valid at law if made through a trustee or third party. 
 Under the laws of California, if the husband pur- 
 chases real estate w^ith the sef)arate property of the 
 wife, but takes the conveyance to himself, the land 
 thus purchased is also the separate property of the 
 wife, as between the husband and the w^ife. Under 
 the laws of Massachusetts, if a wife places in her 
 husband's hands her separate property, to be used 
 by him in his business, there is no presumption that 
 he receives it in trust for her, but the burden is on 
 her to prove the fact. In the absence of such proof, 
 the money must be deemed to have been given to 
 him with the intention that it should be applied to 
 the use or benefit of either or both of them at his 
 discretion. 
 
 102
 
 HUSBAND AND WIFE 
 
 One spouse cannot recover at common law 
 against the other for slander or assault and battery. 
 Nor does this right arise after the marriage has been 
 dissolved by divorce. Nor does equity differ from 
 law as to personal w^rongs. As husband and wife 
 are one. not only does their marriage extinguish all 
 rights growing out of ante-nuptial personal wrongs, 
 but while it continues it is a continually operating 
 discharge of rights arising from such w^rongs. 
 Courts of equity do secure to married women the 
 enjoyment of their property, and will prevent its 
 destruction or injury by the husband. Under the 
 statutes of Illinois and Iowa married women have 
 been placed upon a footing from which they can 
 sue their husbands for torts, even at law; but mere 
 property acts do not give them this power; so that. 
 a wife with statutory separate property which she 
 holds as a feme sole cannot sue her husband in tres- 
 pass or trover for breaking or removing it. She 
 must take preventative measures to preserve it; 
 criminal conduct of one towards the other is not 
 authorized by reason of the relation of husband and 
 wife. Prosecutions of husbands for assaulting their 
 wives are common, but not common enough; and 
 wives are frequently prosecuted (sometimes un- 
 justly) for chastising their husbands. 
 
 The marital relation may prevent certain con- 
 duct of one relating to the others property from 
 being criminal. So one spouse cannot steal from 
 the other. The general rule of law is, that a wife 
 cannot be found guilty of larceny for stealing the 
 goods of her husband, and that is upon the prin- 
 ciple that the husband and wife are in the eye of 
 the law one person ; but this rule is properly and 
 reasonably qualified when she becomes an adul- 
 teress. She thereby determines her quality of wife 
 and her property in her husband's goods ceases. 
 
 103
 
 WOMAN UNDER THE LAW 
 
 A husband could always v/ill his property to 
 his wife, as to a stranger, for his will takes effect 
 only upon his death and, therefore, after the mar- 
 riage unity has been destroyed. But at common 
 law^ the wife was merged in her husband and ex- 
 cept under a pow^er, or by virtue of a statute, or in 
 a representative capacity, even now^ she cannot will 
 at all. But when for any reason she can will gen- 
 erally to strangers, she can will to her husband, be- 
 cause, as already stated, the unity of husband and 
 w^ife cannot interfere. So a general power in a deed, 
 or in a statute, enabling her to will, includes wills to 
 her husband. Some statutes expressly prohibit 
 wills betw^een husband and wife or limit the amount 
 that can be willed; others put the surviving husband 
 or w^ife upon an election between the w^ill and the 
 law. The effect of the will depends on the existing 
 law at the time of the testator's death. A mans 
 will is revoked by his subsequent marriage and 
 birth of issue unless it provides for such issue by a 
 former marriage. A woman's w^ill is revoked by 
 her marriage alone, unless by statute she has full 
 power to make a will, in which case probably her 
 will is revoked as a man's is. 
 
 A devise to "My wife " means, in the case of 
 several wives, the wife at the time the will was 
 made. If there was no wife at such time, but the 
 testator was about to marry, his intended wife takes. 
 A devise to "My wife " is void if the w^oman had 
 deceived the testator into thinking himself married. 
 And so of a devise to "My husband." 
 
 At common law^ suits between husband and 
 wife are entirely unknown because husband and 
 wife are one, and as has been seen, cannot be under 
 obligation to each other either in contract or in tort. 
 In equity, however, suits between husband and wife 
 have been know^n from early times, and in courts of 
 
 104
 
 HUSBAND AND WIFE 
 
 equity have been enforced those obligations which, 
 it has been shown, husband and wife could mutually 
 incur. In such cases the wife is represented by a 
 trustee or next friend. Thus at law a man cannot 
 even confess judgment in favor of his wife, but 
 when courts of law and of equity are combined, as 
 in Pennsylvania, he can. A husband cannot at lawr 
 sue his wife on a covenant to pay rent and one can- 
 not sue the other for assault and battery. But in 
 equity a wife can institute proceedings against her 
 husband for the protection of her property. 
 
 A statute enabling a married woman to sue 
 her husband does not enable her to sue him for a 
 personal wrong to herself. Statutes authorizing 
 married women to sue and be sued, as if unmarried, 
 do not authorize suits between husband and wife, 
 except in equity, for the reasons already given. 
 
 After the marriage has been dissolved by death 
 or divorce, suits can be brought between the parties 
 or their representatives, to enforce any right which 
 existed during coverture; but such an event does 
 not create rights, it simply removes impediments 
 to remedies, it has been held in Massachusetts that 
 a promissory note made and given by a husband to 
 his wife before their marriage, becomes a nullity 
 upon the marriage being performed and is not 
 revived on the death of the husband. 
 
 At common law a wife had no property in 
 possession during coverture, as will be seen, but 
 her possession was her husband's possession, and 
 eve n mo ney in her pocket was deemed inkie r hus - 
 band s actual possess fon ; as a consequence, the 
 possession of husbanda nd wifej vyas the_pojsession 
 of the husband, and so far as it was evidence of 
 title at all, it was evidence of the husband's title. 
 And although married women came to hold equit- 
 able, separate property and statutory separate 
 
 105
 
 WOMAN UNDER THE LAW 
 
 property, the presumption still exists that they have 
 no property, and that all the property about the 
 family home is in the possession of the husband 
 and belongs to him. The presumption of the hus- 
 band's ownership not only exists, but it continues 
 even after his death, so that property held by a 
 man's widow, w^ho is also his administratrix, is 
 presumed to be held by her in the latter capacity. 
 The presumption in favor of the husband must be 
 overcome in every case. Even when a w^ife has 
 bought property in her ow^n name, the purchase 
 money is presumed to have been her husband's. 
 This perhaps makes but little difference as far as her 
 husband or a stranger is concerned, for as against 
 them a gift (of the purchase money) from her hus- 
 band to her is good, and may be inferred from cir- 
 cumstances; but as against her husband's creditors 
 (as w^hen she sues for taking her goods for her hus- 
 band's debts), she must prove not only that the 
 purchase was made for her, but that it w^as made out 
 of her separate funds, or upon her separate credit. 
 And it has even been held that a creditor of the 
 w^ife, seizing goods alleged to be hers, must prove 
 that they are hers and not her husband's. 
 
 As to real estate, it has been held that when 
 the husband and w^ife live together on the wife's 
 farm, the husband is presumed to be the tenant, and 
 owns the crop, unless the wife proves that he farmed 
 it as her agent. The occupancy, cultivation, and ap- 
 parent control by the husband of the wife's lands 
 where nothing appears to show his or her actual in- 
 terest in them, will raise a presumption of tenancy 
 in him, and consequent ownership of the crop. It 
 is well settled, however, that a husband may man- 
 age his wife's property without acquiring any rights 
 therein, or in any way rendering it liable for his 
 debts. As the possession of husband and wife is 
 
 106
 
 HUSBAND AND WIFE 
 
 thus at best equivocal, neither can rely upon pos- 
 session to prove acquisition of title from the other, 
 and a wife can assert her title even to property 
 vv^hich she has allowred her husband to have taxed 
 in his name; and this is because it is the policy of 
 the law to encourage the trust and intimacy of the 
 marriage relation and there is no such thing as ad- 
 verse possession as between husband and w^ife as 
 long as they cohabit. 
 
 Gifts between husband and wife are valid and 
 are not uncommon, but the donor's intention to 
 divest himself or herself of the property, and the 
 carrying out of that intention by delivery, must be 
 clearly proved by the donee, wife or husband, as 
 the case may be. CKving to the intimacy of their 
 relations, actual delivery is very difficult to prove, 
 and the only safe way of perfecting a gift betw^een 
 them is by constructive delivery by some writing or 
 formal instrument, like a bill of sale. This is simply 
 a wise precaution. This reasoning does not, how- 
 ever, apply to mere personal effects, or ornaments 
 used by husband and w^ife, such as the wardrobe of 
 the wife, or jewels, or other expensive personal 
 articles which in a sense might be said to be appro- 
 priated to the use of the wife, or to such other 
 property as the one or the other uses or enjoys 
 alone. 
 
 In the case of conveyances by a debtor, the 
 general rule is that if, after the conveyance is made, 
 he retains possession of the property conveyed, such 
 conduct is evidence of an actual intent to defraud 
 his creditors, and must be explained. A change of 
 possession ordinarily attends a transfer of the title 
 of chattels, and therefore the law^ looks with jealousy 
 upon a transfer of title without a corresponding 
 change of possession where such change is possible, 
 but as between husband and wife separate posses- 
 
 107
 
 WOMAN UNDER THE LAW 
 
 sion in the wife is not ordinarily possible, and is not 
 therefore to be expected or required; as applied to 
 husband and wife, therefore, this rule has given rise 
 to much dispute. It is said that a husband's posses- 
 sion of his wife's property is not in itself evidence 
 of fraud, because he has the right, growing out of 
 the right of cohabitation, to use and possess her 
 property in their home; but this is not true if his 
 possession is not consistent w^ith the purpose for 
 which the property w^as given to or purchased by 
 her. If a husband should give his wife, or sell to 
 her, chattels for which she w^ould have no use, but 
 which he w^ould have to continue to use in his busi- 
 ness, as if a laborer should give his w^ife his horse, 
 cart and tools, certainly, some special circumstances 
 w^ould have to be proved to rebut the presumption 
 that he meant to secure himself against his creditors. 
 A wife may make her husband her agent and be 
 bound by his acts, as we shall see, but, on account 
 of the presumed coercion of the wife by her hus- 
 band, it is not a fraud if she stands by and allows 
 him to say that goods which are really hers belong 
 to him. This is on the general principle of estoppel, 
 that he, who holds his peace when he ought to have 
 spoken, will not be heard when he should be silent. 
 Some authorities hold that a wife cannot assert her 
 title to property of w^hich she has allowed her hus- 
 band to be the apparent ow^ner and thus get credit; 
 and this is certainly the rule if she has done this in- 
 tentionally. In some states statutes especially pro- 
 vide that a schedule of the separate property of mar- 
 ried women shall be filed, and that transfers between 
 husband and w^ife shall be recorded; and it seems 
 that general statutes which provide that "no prop- 
 erty whereof the grantor shall remain in possession 
 shall pass as against his creditors, unless by bill of 
 sale duly recorded" apply to all transfers betw^een 
 
 108
 
 HUSBAND AND WIFE 
 
 husband and wife where the grantor apparently re- 
 mains in possession. So that to rebut the presump- 
 tion of fraud, transfers between husband and wife 
 should be by formal instrument duly recorded. 
 
 At common law, with certain exceptions 
 named below, the rule was that a husband and wife 
 could not testify, the one for or against the other, 
 in any legal proceeding in which the other was a 
 party, or which involved the other's pecuniary in- 
 terests, or criminal responsibility. The rule is 
 firmly established, however, that to exclude a wit- 
 ness on the score of a future interest it must appear 
 that the judgment in the case in which he is called 
 to testify can be used in evidence, for or against 
 him, in a subsequent case in which he is a party. 
 If such judgment can be so used, the witness is 
 interested and his wife cannot testify. This was 
 because husband and wife were one, and as no one 
 could testify for or against himself, his wife could 
 not testify for or against him; to allow one to 
 testify for or against the other would be to endanger 
 the harmony and confidence of the marriage rela- 
 tion. 
 
 The common law rule applied equally to the 
 husband and the wife; and with differences to both 
 civil and criminal cases. Legislation in Maryland 
 has removed incapacity of husband and wife to 
 testify for and against each other in civil matters, 
 but not in criminal. 
 
 The incompetency of a husband or wife to 
 testify for or against each other in criminal prose- 
 cutions at common law^ arose, not from interest in 
 the result of the suit, but was based upon con- 
 siderations of public policy, grow^ing out of the 
 marital relation, and could not be w^aived by con- 
 sent of the parties. Just as soon as marriage exists, 
 the rule applies, though one of the parties has been 
 
 109
 
 WOMAN UNDER THE LAW 
 
 summoned to testify before the marriage took 
 place; but it has no application, except as to con- 
 fidential communications after the marriage has 
 been dissolved by death, or divorce. 
 
 The exceptions above referred to were as fol- 
 lows : husband and wife could testify for and against 
 each other in prosecutions of the one for criminal 
 injury to the other, as for assault and battery, rape, 
 shooting and forcible abduction. Dying declara- 
 tions of one w^ho has been murdered are admissible 
 in a trial of the other for the other. A wife's affida- 
 vit is evidence against her husband when she ex- 
 hibits articles of peace against him. The necessity 
 of the case made this and the above exceptions for 
 in criminal matters of this character there are sel- 
 dom other w^itnesses. Declarations of the one w^hile 
 acting as the agent of the other are admissible 
 against the other. In trials for treason one was com- 
 pellable to testify against the other. The rule was 
 never applicable in purely collateral proceedings. 
 
 Statutes have almost destroyed the common 
 law rule. Statutes abolishing incapacity to testify 
 on account of interest do not change the rule as to 
 husband and wife, whose incapacity, as has been 
 seen, depends on other reasons as well ; nor do mere 
 general statutes authorizing all persons to testify 
 affect the marital incapacity. The rule must be 
 changed expressly, or by necessary implication; 
 and a statute enabling the parties litigant to any 
 suit and their husbands and wives to testify, does 
 not change the common law rule in criminal suits. 
 But when parties to suits are enabled to testify, and 
 husband and w^ife are joint parties, he may testify 
 as to his interest, and she as to hers. To illustrate, — 
 In an action against a husband to foreclose a mort- 
 gage on a homestead, the w^ife may defend to avoid 
 foreclosure of dower; and, as to this, may testify 
 
 110
 
 HUSBAND AND WIFE 
 
 for herself, but not in aid of the defence of her hus- 
 band. When a statute provides that all parties may 
 testify, except that husband and wife cannot in 
 certain cases, they can in all other cases; no other 
 view could possibly be taken. 
 
 Conjugal rights and obligations are those 
 which attach to one as husband or as wife. They 
 include not only the rights and obligations of hus- 
 band and wife towards each other, — such as the 
 right of cohabitation and the obligation to support 
 — but also their rights and obligations towards third 
 parties, such as the husband's right to recover dam- 
 ages for injuries to his wife, and his obligation to 
 make good damage done by her; and then, these 
 rights and obligations give rise to special suits w^hich 
 must be considered. 
 
 It is not essential to the validity of a marriage 
 that the parties should love each other; and courts 
 take no notice of the mutual feelings of husband 
 and wife, except so far as these manifest themselves 
 in conduct, and still the alienation of the affections 
 of a spouse is one of the grounds of damage in a 
 suit for criminal conversation. 
 
 Normally, and in the theory of the relation, 
 parties w^ho marry alw^ays contemplate cohabitation 
 and sexual intercourse. The law not only presumes 
 that husband and wife have a common home, but 
 often that a man and woman living in a common 
 home are married. 
 
 Cohabitation is in fact a conjugal right; the 
 husband has a right to the wife's, and the wife to the 
 husband's company; a husband's agreement to pay 
 his wife to live w^ith him is w^ithout consideration; 
 I do not know how far he would be morally bound 
 by a post-nuptial contract by which he hires his wife 
 to live with him ; but the legal obligation would not 
 be recognized by any court. ELach has the right to 
 
 111
 
 WOMAN UNDER THE LAW 
 
 enter the family residence ; whichever owns it. The 
 property may be hers alone, but the residence is 
 equally his; the estate may be in her name, but the 
 dwelling house, the domus, is that of both. It was 
 not intended by allowing her to own her own prop- 
 erty as fully after marriage as before that he should 
 not sit at her table, use her furniture or house, or 
 mcike love to her poodle dog if he so wishes. 
 
 Matrimonial cohabitation involves sexual in- 
 tercourse and is presumably contemplated by those 
 who marry; and from such cohabitation sexual in- 
 tercourse is implied. In fact sexual intercourse is a 
 conjugal right. If owing to some physical or 
 psychic defect existing at the time of the marriage 
 in one of the parties to a marriage, the enjoyment 
 of this right is permanently impossible, the mar- 
 riage may be avoided, as we have seen in the chap- 
 ter on "Marriage." But the mere denial of the right 
 does not work a forfeiture of any other conjugal 
 right, and is not cruelty, or desertion, though it may 
 be an indignity, and accompanying an offer to 
 resume cohabitation, may render such an offer of 
 no effect; nor does it justify separation. The exces- 
 sive indulgence of this right by one of the parties 
 to the injury of the other's health, or the insisting 
 upon it when the other party is delicate, w^eak or ill, 
 or by one who has a venereal disease, is cruelty and 
 justifies separation, or a suit for divorce. This right 
 is waived or forfeited w^ith the right of cohabitation. 
 If one of the parties indulges in sexual intercourse 
 w^ith anyone but the other spouse, the injured 
 spouse may sue for divorce for adultery, as w^e shall 
 see in the chapter on "Divorce," or (it has been 
 held) may kill the third party in flagrante delecto, 
 and be guilty only of manslaughter. 
 
 The husband is the head of the family, not- 
 w^ithstanding statutes giving the married women 
 
 112
 
 HUSBAND AND WIFE 
 
 great power as in Michigan. He decides where the 
 family residence shall be and may change it as often 
 as his pleasure, business or health dictates; and his 
 wife must live where he directs, as long as he acts 
 in good faith, and in spite of an ante-nuptial con- 
 tract to the contrary. This is an illustration of the 
 elementary principle of law that fraud vitiates 
 everything. 
 
 But she has the right to live with him, and he 
 cannot banish her to a lonely or obscure place; nor 
 can he take her to a place where her health is en- 
 dangered, for this would be cruelty; nor, perhaps, 
 can he remove her from her native land or make her 
 live with his relations. 
 
 Consequently, a husband's domicile is usually 
 the place where he has established his family, al- 
 though during his absence his wife has moved, and 
 the wife's domicile, except in certain cases where 
 she has a separate domicile for divorce, is that of 
 her husband. So the husband may decide who shall 
 visit the family home and may prevent its being 
 used for purposes of prostitution, or illegal liquor 
 selling, although it belongs to the wife. How far 
 he may use force in restraining her is not precisely 
 settled. But there can be no doubt that he may ex- 
 ercise as much power as may be reasonably neces- 
 sary to prevent her, as well as other inmates of the 
 house, from making it a brothel. The common law 
 doctrine is that the wife is under the husband's 
 protection, influence, power and authority, and that 
 he is the head of the household. When the husband 
 is insane or absent the wife is the head of the family. 
 The husband being the head of the family, the wife 
 and children generally adopt his family name — by 
 custom, the wife is called by the husband's name. 
 But whether marriage shall work any change of 
 name at all, is after all, a mere question of choice, 
 
 113
 
 WOMAN UNDER THE LAW 
 
 and either may take the other's name, or they may 
 join their names together. In general, wives have 
 surnames by courtesy only, adopted from their hus- 
 bands, and it is inconvenient that they should have 
 appellations different from their husbands. 
 
 The husband as head of the family has a right 
 of gentle restraint over his wife's movements. He 
 may, by reasonable measures, enforce cohabitation 
 end a common residence; he may lock her up to 
 prevent her from eloping, or going into lewd com- 
 pany and squandering her money, and she will not 
 be released on a writ of habeas corpus; nor is it of 
 itself cruelty if he prevents her from visiting her 
 family, or relations, or from going to church, that 
 is, if he merely prevents her from going to a par- 
 ticular church. But he has no right to confine her 
 unreasonably or arbitrarily, and if he does so she 
 w^ill be released on a writ of habeas corpus; so if he 
 injures her health by moral or physical restraint, it 
 is cruelty. But a husband cannot get possession of 
 his wife in any case by a writ of habeas corpus , un- 
 less she is restrained against her will. If the wife is 
 an infant, the husband or her parents in the discre- 
 tion of the court, may be awarded custody of her. 
 
 If the husband is insane, the wife is the head 
 of the family, and has a right, superior to that of his 
 father, to be his guardian. But a wife has no right 
 to lock her husband up corresponding to that 
 of the husband, above discussed. Though the old 
 writers say that a husband may chastise his wife 
 with a rod no thicker than his thumb, modern law 
 recognizes no such right, and a husband is not jus- 
 tified in beating his w^ife even though she be drunk 
 or insolent. Wife beating in certain states is a 
 special misdemeanor. 
 
 A husband is bound to support his w^ife, and 
 a wife may be bound to support her husband; and 
 
 114
 
 HUSBAND AND WIFE 
 
 husband and wife may be bound to support their 
 family. 
 
 By the common law the husband is bound to 
 support his wife. It is an unquestionable rule of 
 law^ that if a husband turn his w^ife out of doors, or 
 by his misconduct compel her to leave him, she 
 goes forth under such circumstances to the world 
 w^ith an implied credit for necessaries. In other 
 words, he is bound to provide her with necessary 
 lodging, clothing and subsistence, and in case of her 
 sickness, medicine, medical attendance and reason- 
 able expenses incurred during illness; and if he 
 fails to make such provision, she may obtain the 
 same on his credit, and the person so making it may 
 sue the husband and recover therefor, even though 
 the husband be a minor. If old enough to contract 
 marriage, a minor is liable on contracts for the 
 necessary board and lodging of his wife and chil- 
 dren. He cannot charge her or her estate with the 
 expenses of her support. 
 
 The wife may enforce her right to support 
 directly by a suit for maintenance, or for alimony 
 with divorce, or indirectly, by pledging his credit to 
 others who supply her with necessaries. 
 
 The husband's neglect of this duty, if it results 
 in her death, is manslaughter at least; and some- 
 times a husband's failure to support is punishable 
 criminally by statute; and by statute it may be a 
 cause for divorce. The obligation cannot however 
 be enforced if the wife has sufficient means of her 
 own, or has waived or forfeited her rights. She may 
 waive her rights for valuable consideration, as in a 
 deed of separation. She forfeits them by leaving 
 her husband against his w^ill when he is not in fault. 
 To illustrate: — A wife left her husband's house 
 without his consent and without justification, and 
 went to the house of the plaintiff with her nursing 
 
 115
 
 WOMAN UNDER THE LAW 
 
 babe, and the husband made repeated efforts by 
 himself and through others to procure her return 
 and tried to induce the plaintiff to assist him, in 
 the same purpose, but the plaintiff made no en- 
 deavor to persuade her to go back to her husband, 
 and forbade the husband coming to his house. It was 
 held in Illinois that, in the absence of any express 
 agreement to pay, the husband was not liable to the 
 plaintiff for the board and lodging of the wife and 
 child. She may also waive her rights if her husband 
 leave her for her fault. To illustrate, — If a husband 
 has put away his wife for adultery, he is not liable, 
 even for necessaries supplied to her, if it be proved 
 on the trial of an action for the price of such neces- 
 saries that she has been guilty of adultery. She 
 does not w^aive her rights however, by becoming 
 insane; "For that is no fault of hers," according to 
 an Alabama decision. 
 
 The husband's obligation to support his wife 
 is not destroyed by married w^omen's separate prop- 
 erty acts, except so far as through them she has 
 means of her own and if she has such provision it 
 lies on the husband to show it. The right ceases 
 w^ith divorce, but may continue some time after 
 the husband's death. An example of this is found 
 in the old English statute of Henry III, ch. 7, sec- 
 tion 3, which provides that the w^idow^ "shall tarry 
 in the chief house of her husband by forty days 
 after the death of her husband, within which days 
 her dow^er shall be assigned her." This was called 
 the widow's "quarantine." 
 
 By the common law^, all the wife's personalty, 
 and all her earnings and labor, belong to her hus- 
 band, and even under separate property acts, she 
 is still his helpmeet, and cannot charge him for 
 domestic services; in this way she is bound to sup- 
 port him. In some states statutes, which seem to 
 
 116
 
 HUSBAND AND WIFE 
 
 have given rise to no decision by a supreme court, 
 create various means of making a wife support her 
 needy husband. 
 
 Husband and wife are both Hable for the sup- 
 port of their family, so far at least that one cannot 
 recover from the other for expenses paid. And 
 statutes in Alabama and Iowa make them jointly 
 liable. 
 
 A wife has no right to her husband's services, 
 though he is bound to support her, as has been seen. 
 
 At common law, however, a husband has an 
 absolute right to his wife's time, wages and earn- 
 ings, and the products of her labor, skill and in- 
 dustry. Nowhere has it been adjudged that her 
 earnings or the product of them, made while she is 
 living with her husband and engaged in no separate 
 business, are not the property of the husband when 
 the rights of his creditors have been asserted against 
 them. He may even contract to furnish her services 
 to others, and sue for the price of them and for the 
 loss of them in his ow^n name. She cannot release 
 an obligation for them, except as his agent, or by 
 his consent. Even if her earnings have been in- 
 vested, the investment is pro tanto his, and may be 
 seized by his creditors. 
 
 The husband may forfeit this right by deser- 
 tion ; the marriage relations having ceased, the right 
 to the wife's service, which is an incident to co- 
 habitation, also comes to an end. He may also 
 waive this right under the laws of New Jersey, and 
 it has been the first to be destroyed by the statutes. 
 
 The husband, in equity, independently of stat- 
 ute, may give up his wife's earnings; this may be 
 done either by an ante-nuptial or a post-nuptial 
 settlement. The mere ability to earn is not property, 
 however, and a husband may, therefore, waive fhe 
 right to have his wife labor for him, even as against 
 
 117
 
 WOMAN UNDER THE LAW 
 
 his creditors ; but moneys received or due for labor, 
 earnings in the fuller sense, are property, and a gift 
 of such must not defraud creditors. If with the 
 assent of the husband, the wife were to carry on any 
 kind of business she would be entitled to the profits, 
 if it was bona fide hers, and not intended to shield 
 the husband's propert}^ from his creditors; so no 
 reason is perceived why a husband might not, if 
 the transaction were not tainted with fraud, permit 
 his w^ife to raise and sell grain, stock and other farm 
 products and receive the profits. But in such case 
 the transaction would have to be fair and free from 
 fraud as to creditors. 
 
 The burden of proof lies upon the wife to 
 clearly prove the gift, for her earnings, as has been 
 seen, belong prima facie to the husband. 
 
 Married women's property acts which do not 
 refer expressly to earnings, do not change the hus- «-- 
 band's common law rights in the same. So a statute r^* 
 which provides that a married woman may earn 
 money on her separate account, does not affect her 
 earnings, unless it appears that they were acquired 
 by her on her separate account. Under such stat- 
 utes, the product of all labor of hers for parties 
 other than her husband, belongs to her; she can 
 contract for her services and recover on the con- 
 tract; she can sue alone for them, and make her 
 husband, if need be, garnishee; a debt due by her 
 husband cannot be set off in such a suit ; and neither 
 her husband, nor his creditors, have any right to 
 such earnings, though as with her other separate 
 property, she may give them to her husband, and 
 such a gift, it seems is presumed, if, w^ith her con- 
 sent, and without promising to repay her, he uses 
 them, or mixes them with his own money. 
 
 But these statutes do not implicitly authorize 
 contracts between husband and wife for her serv- 
 
 118
 
 HUSBAND AND WIFE 
 
 ices, and she cannot recover from him for services 
 rendered; though this may perhaps be done if the 
 statute itself or some other statute authorizes con- 
 tracts between husband and wife. She is still bound 
 without charge to look after his home and children, 
 and to perform the domestic duties of wife; she is 
 still his "helpmeet. " 
 
 There is no liability of a wife for contracts of 
 her husband, and a wife could not make any con- 
 tracts at common law for her husband to be liable 
 on, though she could charge him as his agent, in 
 law, or in fact. And when, under statute or other- 
 wise, a wife can make contracts, her husband is not 
 liable upon them as husband, though he may, of 
 course, be liable if he joins with her. 
 
 But as to a wife's ante-nuptial contracts, her 
 husband comes into full liability, and he is liable on 
 all such contracts of hers, whether he gets any 
 property with her or not, and even though he be a 
 minor. 
 
 On such contracts husband and wife must be 
 sued jointly. The husband's liability ceases w^ith 
 the coverture, unless it has been fixed by judgment. 
 If the wife dies after judgment he continues liable; 
 if he dies his estate is liable. If not fixed by judg- 
 ment, the husband's liability is destroyed by an ab- 
 solute divorce, by his death, or by hers. But mar- 
 riage does not suspend or destroy her liability, so 
 that, if he dies, she continues liable; and if she dies, 
 her administrator is liable to the extent of assets 
 even though he be her w^idower; and she is liable 
 after an absolute divorce. The statute of limita- 
 tions runs for her during coverture. 
 
 Bankruptcy of the husband at common law 
 destroyed any right to bring suit at all during cover- 
 ture, at law; but in equity she could perhaps be 
 held liable if she had separate property. This 
 
 119
 
 WOMAN UNDER THE LAW 
 
 liability is not affected by any ante-nuptial or post- 
 nuptial agreement between the husband and wife; 
 nor do married women's statutes destroy the hus- 
 band's liability, unless they so state, except in 
 Illinois. But in many states there are statutes ex- 
 pressly destroying this liability or limiting it to the 
 amount of the property gotten by the husband from 
 his wife. 
 
 There is no liability of a w^ife as wife for her 
 husband's torts, but a husband is generally liable for 
 those of his w^ife. 
 
 A husband at common law^ takes his wife with 
 all her liabilities, and he is, therefore, liable on her 
 ante-nuptial torts, for the same reasons and to the 
 same extent as he is liable under ante-nuptial con- 
 tracts; and to the same extent, also, as he is liable 
 for her post-nuptial torts committed out of his 
 presence and without his direction. This liability 
 extends to acts done by her in a representative capac- 
 ity, for example as guardian or administratrix. It 
 is in many states removed by express statutes, but 
 the weight of opinion is that it is not affected by 
 married women's property acts. 
 
 A husband, at common law, is liable for all 
 torts committed by his wife during coverture; it 
 makes no difference if they are living apart, so long 
 as he is really her husband. But he cannot, unless 
 his wife is agent in fact, be liable for a w^rong of hers 
 based on her invalid contract, as where she got 
 credit pretending that she was unmarried, or misap- 
 propriated money placed in her keeping. If he 
 allows her to act as administratrix, he is responsible 
 for all her torts; but her unauthorized dealing with 
 an estate does not render him liable as executor de 
 son tort. 
 
 For these torts, a husband may be liable, ac- 
 
 120
 
 HUSBAND AND WIFE 
 
 cording to their character, alone or jointly with his 
 wife, as follow^s : 
 
 ( 1 ) If the tort is committed in his presence, 
 and nothing more appears, it is his sole tort, as she 
 is presumed to act under his coercion. 
 
 (2) If the tort is committed in his presence, 
 but she appears to have acted deliberately and 
 freely, it is their joint tort. 
 
 (3) If the tort is committed in his presence 
 and against his will, it is her tort, and he is liable 
 with her. 
 
 (4) If the tort is committed out of his 
 presence, but by his direction, she is jointly liable 
 w^ith him. 
 
 (5) If the tort is committed out of his pres- 
 ence and without his knowledge and consent, he is 
 liable w^ith her. 
 
 Where a wife spoke slanderous words of the 
 plaintiff out of the presence of her husband, without 
 his knowledge or consent, the husband was held to 
 be jointly responsible with his wife, although it was 
 urged that he did not become particeps criminis, 
 and should not be found guilty without having been 
 accused, and having an opportunity of defending 
 himself. 
 
 In cases 1 , 2, and 4, just stated he is liable be- 
 cause she is his agent, and to the same extent that 
 any master is for the act of his servant. In cases 3 
 and 5, he is liable because she is his wife, and, as 
 is the case w^ith his ante-nuptial contracts and torts, 
 his liability, unless it has been fixed by judgment, 
 ceases with the dissolution of the marriage. In case 
 1 , she cannot be sued. In cases 3 and 5, he cannot 
 be sued as joint-wrongdoer, but must be sued as 
 husband. In cases 2 and 4, they are jointly liable 
 for a joint tort. 
 
 The husband's liability for his wife's torts, as 
 
 121
 
 WOMAN UNDER THE LAW 
 
 husband, has been removed by statute in some 
 states; but such statutes do not destroy his liability 
 in cases when he is liable as master. But his liability 
 is not affected by general married women's property 
 acts, except in Illinois and Kansas, or by a provision 
 that a husband shall not be liable for his wife's 
 debts. Still, when a wife may sue and be sued as 
 to her separate property without her husband, he 
 is not liable for a tort committed by or through 
 it, unless he took part in the tort, as where the wife's 
 farm, for instance, contains a nuisance, or her cattle 
 have committed depredations. But he is liable with 
 her for conversion w^hen she receives stolen goods 
 in the course of her separate business, as she never 
 legally acquired the goods. A husband is not liable 
 for the torts of an insane wife. 
 
 Marriage never renders a v^ife liable for the 
 crimes of her husband; but a husband is liable for 
 all crimes of his wife committed during coverture 
 in his presence and with his knowledge and consent. 
 According to circumstances he may be liable as prin- 
 cipal, or as accessory, and alone or jointly with her. 
 Nor have married women's statutes changed this 
 common law liability of his. 
 
 ( I ) If it appears only that a criminal act was 
 committed by the wife in the presence of her hus- 
 band, she is deemed to have acted under his coer- 
 cion, as she is under his power and he is liable alone. 
 In a recent Massachusetts case a married woman 
 was on trial for keeping a liquor nuisance, and there 
 •was evidence of a sale made by her w^hen her hus- 
 band was in the yard outside. It was held, that an 
 unqualified instruction to the effect that a sale thus 
 made was not made under constraint, was er- 
 roneous. She is in legal contemplation in his 
 presence, though he is not in sight, if he is nearby 
 and she is acting under his supervision. 
 
 122
 
 HUSBAND AND WIFE 
 
 (2) If it appears that a criminal act v/as com- 
 mitted by the wife in the presence of her husband, 
 but of her own free will, he is jointly liable with 
 her, for it is his duty and right to prevent her from 
 doing wrong, with force if need be. How far he 
 may exercise force in restraining her is not precisely 
 settled. But there can be no doubt that he may 
 exercise as much power as may be reasonably neces- 
 sary under the circumstances. Probably his bona 
 fide endeavors to prevent her from committing the 
 crime would be a defence. Of course, if he aids and 
 abets her he is liable; nothing could be clearer than 
 this proposition. 
 
 (3) If it appears that a criminal act was 
 committed by the w^ife out of the presence of her 
 husband, but w^ith his concurrence or assent, he is 
 liable, just as any one is liable for the acts of his 
 agent. 
 
 (4) If it appears that the criminal act was 
 committed by the wife out of the presence of her 
 husband, and without his knowledge or assent, he 
 is not liable at all. To illustrate: A husband is not 
 criminally liable for the act of his wife in selling 
 liquor without a license when the sale is made in 
 his absence and contrary to his express instructions. 
 
 But a husband cannot be guilty of conspiring 
 with his w^ife, unless the conspiracy was consum- 
 mated before their marriage, or there are other co- 
 conspirators ; this is a necessary result of the merger 
 of the wife in the husband. 
 
 The husband must, generally, except when 
 some statute expressly authorizes the contrary, be 
 joined in all suits to which his wife is a party. As 
 has been seen, a husband is generally liable to be 
 sued with his wife on her ante-nuptial contracts, 
 and for her torts, and to be prosecuted with her for 
 her crimes; he usually sues with her on her con- 
 
 123
 
 WOMAN UNDER THE LAW 
 
 tracts, and for injuries to her, in fact he is commonly 
 joined with her in all her suits. He is also liable 
 alone as husband for her wrongs done in his pres- 
 ence and he has the right to sue alone for any in- 
 fringement of his conjugal rights to her services, 
 affection and fidelity; and hence, arise rights of 
 action against one who injures his w^ife or entices 
 her away from him or has sexual intercourse with 
 her; and these rights of action will hereafter be 
 separately discussed. 
 
 If one spouse wrongfully left the other, the 
 latter could formerly bring suit in the English ec- 
 clesiastical court to compel cohabitation, and this 
 vras called a suit for restitution of conjugal rights. 
 Such a suit may still be brought in England, but it 
 is unknown in the United States where cohabitation 
 cannot be directly enforced. No court in this coun- 
 try has any power to compel discordant husbands 
 and wives to live together. 
 
 A husband is bound to support his w^ife, unless 
 she has forfeited her right, or waived it, and unless 
 she can support herself ; where a husband abandons 
 his wife w^ithout just cause and casts her upon 
 society destitute of the means of subsistence, a court 
 of chancery, as an original ground of equity, w^ill 
 entertain a bill filed against him for alimony. In 
 some states there are special statutes authorizing a 
 wife, w^ho, w^ithout fault on her part, is left w^ithout 
 means of support, to sue her husband for mainte- 
 nance. If a husband by his extreme cruelty, renders 
 it justifiable for his wife to live apart from him, she 
 may maintain an action against him for a suitable 
 separate support, w^ithout applying for a divorce. 
 In some states, courts of equity, in the exercise of 
 their ordinary equity powers, grant alimony w^ithout 
 divorce. To sustain her action, the wife must be 
 living apart from her husband without fault, and 
 
 124
 
 HUSBAND AND WIFE 
 
 must be without support. She cannot maintain her 
 suit when she is in fault. 
 
 The procedure in general is like that in suits 
 for alimony w^ith divorce; it ail depends upon stat- 
 utes and the rules of court. The suit must be in- 
 stituted during the husband's life, and abates on his 
 death; the marriage relations have then ceased. If 
 a divorce suit is regarded as a suit in rem, the res is 
 the marriage status, and is completely destroyed by 
 death. If it is regarded as a personal suit, it is one 
 which the injured husband or wife alone can pros- 
 ecute. 
 
 Inasmuch as a husband is bound to support 
 his wife, unless she has forfeited or w^aived this 
 right, or has adequate means of her own, w^hen he 
 neglects to support her, whether they are living to- 
 gether or apart, she may pledge his credit for neces- 
 saries; he is bound to reimburse anyone supplying 
 her with such. In such cases the husband's liability 
 is due to the fact of his marriage, and he cannot 
 relieve himself thereof by prohibiting his wife from 
 pledging his credit, or by a general new^spaper ad- 
 vertisement that he will not be liable for her debts, 
 OT by special notice to the party who supplies her 
 not to give her credit. 
 
 A husband is not thus liable by the mere fact 
 of his marriage if the w^ife has sufficient means of 
 her own, or is provided for in any other manner; for 
 example, if supported by someone else. By a bare 
 deed of separation, a wife does not waive this right, 
 but only by agreeing upon an adequate allowance 
 w^hich is duly paid. She forfeits her right if she 
 commits adultery, or by wrongfully leaving him 
 against his will ; for instance : — If a wife elopes with 
 an adulterer, or even if she elopes from her husband 
 without cause, the husband is not liable upon her 
 contracts. In the absence of any special promise of 
 
 125
 
 WOMAN UNDER THE LAW 
 
 the husband to pay for the board and lodging of his 
 wife, living apart from him, to a third person, he 
 ■will not be responsible therefor, unless she was liv- 
 ing separate from him by his consent, or his con- 
 duct was such as to justify her in leaving his bed 
 and board. Necessaries in this connection are 
 articles bona fide purchased for use and not for or- 
 nament, which are really needed, and which are con- 
 sistent with the social position and condition in life 
 in which the party moves. A husband was held not 
 liable for the rent of a church pew hired and occu- 
 pied by his wife without his assent, and it was de- 
 cided that religious instruction does not belong to 
 the class of necessaries as that term is used in the 
 common law. Following are a few examples of 
 w^hat may be deemed necessaries: food, clothing, 
 furniture, medical services and legal services under 
 certain circumstances. Money loaned to the wife, 
 even if used for necessaries, is not regarded as a 
 necessary. For his wife's funeral expenses a hus- 
 band is always liable, though at the time of her 
 death she lived apart from him for her fault — the 
 husband surviving is bound to bury the corpse of 
 his wife. 
 
 The wife's right to pledge her husband's credit, 
 which is based upon his marital duty to support her 
 must be distinguished from her analogous right, 
 which is based on his holding her out as his agent. 
 In the latter case his liability is a mere question of 
 fact, and he cannot be held responsible, unless he 
 has expressly or impliedly, by long mandate or sub- 
 sequent ratification, authorized her to pledge his 
 credit, or has so conducted himself as to estop him 
 from denying his authority. In such cases he is 
 liable not only for necessaries but for any purchases. 
 
 Under the common law, on the application of 
 a wife, who showed herself to be in danger from her 
 
 126
 
 HUSBAND AND WIFE 
 
 husband, a court of equity would grant her a writ, 
 called a writ of supplicavit, requiring her husband to 
 give security to treat her properly. The writ is un- 
 known in the United States, where an ordinary bond 
 to keep the peace serves all its purposes. 
 
 A wife has no right of action for injuries to her 
 husband, unless under some such statute as a civil 
 damage act. Perhaps she has a right of action 
 against one who entices him aw^ay. Two actions 
 may arise in favor of the husband out of an injury 
 to the wife, one in the right of the wife, in which 
 the husband and wife sue jointly for the direct in- 
 juries to her, the other in the right of the husband in 
 which the husband sues alone for consequential 
 damages to himself. The well-known general doc- 
 trine of the common law is, that where a wrong is 
 committed against the person of the wife during 
 coverture, as by beating her, slandering her reputa- 
 tion or by malicious prosecution, she cannot sue 
 alone. For injuries to the wife occasioning to the 
 husband a deprivation of the society of his wife or 
 of her assistance in his domsetic affairs, by which he 
 is put to expense, he may have his separate action, 
 as where a violent battery has caused a long con- 
 tinued illness of the wife or expense in her cure. 
 But if the action is brought for her personal suffer- 
 ing and injury the husband and wife must join, and 
 care should be taken not to include in the declara- 
 tion a statement of any cause of action for which the 
 husband alone w^ould be entitled to recover. 
 
 Since these suits are in different rights, hus- 
 band and wife cannot be joined. Recovery in one 
 suit is conclusive as to the right to recover in the 
 other, but no damages can be allowed in the one 
 which are allowable in the other. 
 
 A husband is entitled to his wife's society, as 
 well as her services, and against any one who, by 
 
 127
 
 WOMAN UNDER THE LAW 
 
 abducting her or inducing her to leave him, or keep- 
 ing her separate from him, deprives him of her 
 society and services, he has a right of action. There 
 are numerous cases in which the right of action of 
 the persons bringing about the loss of the wife's 
 society to the husband is justifiable; if the w^ife has 
 a ground for divorce against her husband, and a 
 stranger, being consulted by her, or a parent advises 
 her to leave him and get a divorce, and acting on 
 such advice she does so, the husband has no right of 
 action. Parents are justified in opening their 
 daughter's eyes to the bad character of their hus- 
 bands if they use no misrepresentations. Harboring 
 a wife may be justifiable, w^hen causing a separation 
 w^ould not be. The motives of the harborer are im- 
 portant and must not be to separate husband and 
 wife; those of a parent are presumed good. The 
 motives are show^n in such acts, in addition to giving 
 shelter as concealing the wife, or denial of access to 
 the husband. The husband must, in the case of 
 mere detainer, show demand and refusal. A wife 
 is entitled to the society of her husband, and w^hen 
 she may sue w^ithout her husband for injuries to 
 her, she may sue one w^ho separates her and her 
 husband. At common law, a wife could not main- 
 tain an action against a defendant for having, by 
 his wrongful acts, advice and persuasion, induced 
 her husband to abandon and become separate from 
 her, whereby she is deprived of his society, support, 
 maintenance and help. Damages awarded in such 
 an action as might be brought, should cover the 
 value to the plaintiff of the spouse w^hose society has 
 been lost, as well as actual pecuniary loss, if any. 
 
 Inasmuch as the husband has the exclusive 
 right of sexual intercourse with his wife, necessarily 
 he has a right of action against anyone w^ho commits 
 adultery with her. 
 
 128
 
 HUSBAND AND WIFE 
 
 I apprehend the law to be that the husband will 
 be entitled to recover, unless he has, in some degree, 
 been a party to his own dishonor, either by giving a 
 general license to his wife to conduct herself as she 
 pleased with men generally, or by assenting to the 
 particular act of adultery with the defendant, or by 
 having totally and permanently given up all the ad- 
 vantage to be derived from her society. 
 
 ( 1 ) Under statute the husband's action may 
 form a part of a divorce suit for adultery, the com- 
 plaining husband making his wife's paramour co- 
 respondent with her, and asking for damages from 
 him. It is in the nature of a personal suit. 
 
 (2) In the declaration, the adultery need not 
 be so specifically alleged as in divorce cases ; counts 
 for loss of services, and for loss of society may be 
 joined, but proof of neither is necessary to support 
 the suit. The gist of the action is the adultery or 
 criminal conversation. The sole defence seems to 
 be that the plaintiff consented to the wife's adultery 
 with the defendant, or consented to her living as a 
 prostitute. Numerous other defences have been 
 attempted. It is no defense that the plaintiff was 
 living apart from his wife before the adultery com- 
 plained of. 
 
 The adultery is proved as in divorce cases. The 
 w^ife can generally, testify as we have seen. 
 
 The damages allowed in suits for criminal con- 
 versation are penal rather than compensatory, for 
 the plaintiflF is entitled to substantial damages 
 though he prove no resulting expense or loss of 
 society or services. They are often exemplary or 
 punitive. The jury considers the value of the w^ife, 
 and, in that connection, how much the husband 
 saw of her and cared for her, her easy fall, and how 
 far it was caused by the plaintiff's disregard of his 
 
 129
 
 WOMAN UNDER THE LAW 
 
 marriage obligations. In an action for the seduction 
 of the plaintiff's wife, it is competent for the de- 
 fendant to prove, under an answer of general denial 
 in mitigation of damages, that, owing to the wicked 
 and depraved disposition of the plaintiff, he and his 
 wife, before the alleged improper intimacy, lived 
 unhappily together and that he had been in the 
 habit of treating her with extreme cruelty. The jury 
 may consider the dishonor of his bed, the doubts 
 cast on the pedigree of his children, the loss of his 
 wife's comfort and assistance, the defendant s 
 wealth if he used it to seduce the wife, to enhance 
 damages. But evidence of the defendant's poverty 
 may not be introduced to diminiish them. The jury 
 cannot consider the injury to the honor, reputation, 
 and happiness of the plaintiff's family. 
 
 There are statutes in many states w^hich give a 
 right of action to anyone who is injured in person, 
 property or means of support. In Massachusetts a 
 husband may maintain an action under the statute 
 for injury to his means of support, by the intoxica- 
 tion of his wife, caused by intoxicating liquors sold 
 to her by the defendant; and a wife for loss of the 
 husband's support caused by intoxication and she 
 may recover actual, and in certain cases exemplary, 
 damages. Such suits are unknown independently 
 of statutes. 
 
 An agent is a person whose act on behalf of 
 another, called the principal, is duly authorized. 
 Such authority may be derived from the law, and 
 an agency in law is thus created; or from the prin- 
 cipal, in w^hich case an agency in fact is constituted. 
 All acts which one spouse may do for the other be- 
 cause they are husband and wife are done by virtue 
 of an agency in law; for all other acts which one 
 spouse may do for the other there must exist such 
 
 130
 
 HUSBAND AND WIFE 
 
 other prior mandate, contemporaneous assent or 
 subsequent ratification — an agency in fact. 
 
 (a) In Law. — A logical application of the 
 common law fiction that husband and wife are one, 
 would make all of the acts of one in law the acts of 
 the other; but as the wife's normal status is one of 
 lost identity and legal disability, her acts are not 
 legally acts at all, and bind no one. Only when the 
 husband's disregard of his conjugal obligations ren- 
 ders her condition abnormal, has she authority in 
 law to act for him — as w^hen he refuses to support 
 her and she pledges his credit. On the other hand, 
 the husband does, at common law, cover and stand 
 in the place of his wife. He may for example, re- 
 lease an ante-nuptial debt due her, and notice to him 
 may be notice to her. Besides this common law 
 agency of the husband, statutes in some states give 
 him some authority to deal with his wife's separate 
 property. 
 
 (b) In Fact. — There is nothing in the mar- 
 riage relation to prevent one spouse from being 
 agent for the other, though the unity of husband and 
 wife may render void a contract between them for 
 compensation; and, therefore, whatever a husband 
 can do through any agent, he can do through his 
 wife, and a wife who may act by agent at all may 
 act by her husband as her agent. 
 
 1 am now dealing mainly with agency in fact 
 of the husband. I shall discuss his agency in law 
 under his marriage rights over her person and prop- 
 erty in subsequent paragraphs. His authority is 
 co-determined with these rights. Thus, he may sue 
 for her earnings, because he is entitled to them by 
 law; and for the same reason, at common law, his 
 receipt for a legacy to her was valid. 
 
 As her agent in fact, he must have her prior 
 authority, contemporaneous assent or subsequent 
 
 131
 
 WOMAN UNDER THE LAW 
 
 ratification; his agency may be revoked, and is 
 revoked by her death. Whatever a married woman 
 can do through an agent she can do through her 
 husband. A married woman w^ho has a separate 
 estate may engage her husband to act as her agent 
 in the transaction of any business she may have, 
 and if she do so, his acts as such agent stand as to 
 her and to the w^orld as do the acts of other agents. 
 Her authority may be given in the usual modes, by 
 power of attorney, by parol, or by conduct. Whether 
 it was given is a mere question of fact. If she 
 allows her husband to use her property as his own, 
 she is bound by his dealing with it, but not if he 
 holds it wrongfully. To illustrate: — When a hus- 
 band receives payments of money on an obligation 
 to his w^ife, the possession of the obligation is 
 evidence tending to prove he has authority to receive 
 the money for his wife, but is by no means conclu- 
 sive of the fact — he may have obtained possession 
 thereof surreptitiously, and, hence, with no warrant 
 to receive payment for her. Most difficulty is found 
 where the w^ife, by her conduct, appoints her hus- 
 band agent. To illustrate: — If, w^ithout objection, 
 she sees her rents paid to him, or sees him sell her 
 chattels, she is bound by estoppel; but she cannot 
 be bound by estoppel w^here she could not have 
 been bound directly. 
 
 The purposes for which a wife may employ 
 her husband as agent are innumerable; he may be 
 her clerk, the master of her vessel, or the cultivator 
 of her farm. A wife cannot ratify what she could 
 not have authorized. To illustrate: — The wife, hav- 
 ing no power to consent to the application of her 
 money to her husband's debts, has no power to 
 ratify such application, even on compensation being 
 made to her by her husband in property, without 
 the allow^ance or approval of a court of chancery, 
 
 132
 
 HUSBAND AND WIFE 
 
 or of the superior court of the county of her domi- 
 cile. In all cases of the husband's agency, the wife 
 is entitled to the benefits and is bound by the liabili- 
 ties resulting from his acts. 
 
 As her agent in law, the husband has no power 
 to act for his wife in her separate existence, because 
 he has no rights in her separate estate; therefore, 
 notice to him in respect to the wife's separate prop- 
 erty is not notice to her. 
 
 As her agent in fact, the husband's powers are 
 measured by the scope of authority conferred. If 
 he exceeds his authority, he is personally liable. 
 His agency is proved as that of a stranger's, though 
 the fact that he is husband is relevant, as in most 
 cases the husband is, or ought to be, the fittest per- 
 son to be his wife's agent. 
 
 There is no implied contract that a wife will 
 pay her husband for his services, for in helping to 
 make her property productive, he is but discharging 
 his duty to support his family. Hence, in the ab- 
 sence of an express agreement to that effect there 
 is no implied obligation on the part of the wife to 
 compensate the husband for his supervision of and 
 labor bestow^ed upon her separate property. 
 
 Contracts betw^een husband and wife are in 
 most states void, and, therefore, there is usually no 
 express contract by a wife to pay her husband for 
 his services. Many cases arise where the husband, 
 for the purpose of evading his creditors, pretends to 
 be acting as his wife's agent, when he is conducting 
 a business of his own. 
 
 A wife has no authority in law to act for her 
 husband except for the purpose of realizing her 
 right to support; in all cases she must be his agent 
 in fact. A wife, as such, has no original or inherent 
 power to make any contract which is obligatory on 
 her husband. No such right arises from the marital 
 
 133
 
 WOMAN UNDER THE LAW 
 
 relation between them. If, therefore, she possess 
 a power in any case to bind him by her contracts 
 made on his behalf, it must be by virtue of an 
 authority derived from him, and founded on his 
 assent, although such assent may be precedent or 
 subsequent, and express or implied; and this is the 
 light in which such contracts are universally viewed. 
 
 If a man places his wife at the head of the 
 household, or in charge of his business, he confers 
 upon her such powers as persons in these positions 
 usually exercise. By ratifying her acts on one oc- 
 casion he may constitute her his agent for future 
 acts of the same kind. In certain cases he is es- 
 topped from denying her authority. Thus, if he sees 
 her selling his property without asserting his rights, 
 he cannot afterwards deny her right to sell. So if 
 he suffers her to collect debts which in law are his. 
 
 If his wife, without authority, has done some 
 act for him and he subsequently recognizes it as his, 
 he ratifies her act and makes it his. He does not, 
 by resuming cohabitation with his Avife, ratify her 
 act committed during a separation. 
 
 If a husband is absent from home and has left 
 his w^ife in charge of his house, his business or his 
 property, she has, as his agent, such powers with 
 respect thereto as persons in such positions of trust 
 usually exercise. If he has left her in charge of 
 his affairs, his private directions do not limit her 
 authority to act for him. During her husband's 
 absence the wife is the head of the family, and may 
 do all things relating to the family and family home 
 w^hich wives usually do. There seems to be a pre- 
 sumption, rebuttable, of course, that if a business 
 is carried on in the house where they live together, 
 she is his agent, and a jury is justified in finding her 
 agency for him from the fact that she w^as seen 
 more than once in charge of the business. The 
 
 134
 
 HUSBAND AND WIFE 
 
 wife cannot testify as to the fact of her agency, 
 though the fact being proved, her declarations as 
 his agent bind him. 
 
 Since, by marriage, the parties, at common 
 law, become one person, and the husband is the one, 
 he naturally stands in her place, and while he is 
 husband has possession and control of all property 
 which would have otherwise come into her posses- 
 sion and control; but she has, during coverture no 
 estate in his property. So that all the profits of the 
 land they occupy, or of the money or chattels that 
 come into their possession, belong to the husband. 
 
 But courts of equity very soon recognize the 
 wife's separate existence and preserve for her sole 
 and separate use all property settled on her for this 
 purpose; and statutes have now been passed, almost 
 everyw^here, destroying wholly or partially the hus- 
 band's rights over his wife's property during cover- 
 ture. 
 
 After marriage the husband holds his own 
 property substantially as before. During his life 
 his wife has no present estate, but on his death she 
 has dower or other share of his realty, and thirds or 
 other share of his personalty, which estates or shares 
 of hers he cannot defeat by deed or will. 
 
 In his wife's estates of inheritance, a husband 
 has, during coverture, a free-hold estate jointly with 
 his wife, with absolute ownership of the rent and 
 profits; this estate may be the estate of curtesy 
 initiate, or simply the husband's estate during 
 coverture jure uxoris. The estate during coverture 
 jure uxoris differs from curtesy initiate, in that it is 
 a vested estate in possession, while curtesy initiate 
 is a contingent future estate, and it is independent 
 of birth of issue; it is held in right of the wife, and is 
 not added to or diminished when curtesy initiate 
 arises. 
 
 135
 
 WOMAN UNDER THE LAW 
 
 A husband has this estate in all his wife's com- 
 mon law estates of inheritance in possession; and 
 he has a joint seisin with his wife in all her estates 
 of which she is seised, whether of inheritance or for 
 life, and whether several or joint. But settlements 
 and statutes have been chiefly occupied in destroy- 
 ing this estate, so that, as a general rule, a husband 
 has no such estate in his wife's equitable, separate or 
 statutory separate property. 
 
 In this estate he is seised jointly with his w^ife, 
 and while he can himself claim the rents and profits 
 and severed personalty, he can sue in ejectment 
 only with her. He can convey his interest and the 
 same is liable for his debts, but on his death the 
 property passes to her again free and clear from all 
 acts of his. 
 
 In his wife's life estates a husband has prac- 
 tically the same estate during coverture as he has 
 in her estates of inheritance. If her estate w^ere for 
 her life, it terminated on her death and he took 
 nothing but emblements; if her estate w^ere per 
 autre vie, he took, probably as special occupant; but 
 in no case could he have curtesy. If, before mar- 
 riage, she had demised her life estate for the term of 
 her life, her interest is simply a chose in action. 
 
 In his wife's chattels real, as, for example, 
 lands leased to her before or after marriage, the 
 husband has, at common law^, an almost absolute 
 estate, w^ith pow^ers of sale, mortgage, and disposi- 
 tion ; but without any power to will them. If he sur- 
 vive his wife his ownership is absolute, just as his 
 ownership of her personalty is; if she survives she 
 takes them much as she does her choses in action not 
 reduced to possession. His rights in such estate 
 may, of course, be excluded by an equitable or 
 statutory settlement. 
 
 At common law, all the wife's personalty in 
 
 136
 
 HUSBAND AND WIFE 
 
 possession vests in her husband absolutely and he 
 may reduce her personalty not in possession (her 
 choses in action) to possession, and thus make them 
 his absolutely. Thus, he owns absolutely money 
 in her possession at the time of her marriage. 
 
 In equity, unless the personalty is settled to 
 the wife's sole and separate use, the husband has the 
 same rights to his wife's personalty as at law, except 
 that she may claim her equity to a settlement out of 
 such of her choses in action as he comes into equity 
 to reduce to possession. 
 
 Under statutes, the husband s right in his 
 w^ife's personalty is frequently destroyed. But a 
 statute relieving a wife's property from her hus- 
 band's debts has not this result. 
 
 Statutes do not affect existing rights in pos- 
 session, and they are generally construed not to 
 affect existing rights in choses in action; but they 
 can destroy the husband's right to reduce his wife's 
 choses in action to possession. 
 
 Personalty in possession of the w^ife is in pos- 
 session of the husband, unless she holds it in a 
 representative capacity. 
 
 Personalty in possession of the husband may 
 still not be in his possession as owner; he may hold 
 her separate personalty as trustee of the wife, or as 
 her agent, and in such cases the personalty so held 
 by him does not fall into the class of personalty in 
 possession. 
 
 The wife's personalty in possession of her 
 agent, trustee, guardian, tenant in common, or any 
 one not holding adversely, is constructively in pos- 
 session of her husband. If a debtor of a married 
 woman pays to her during coverture the debt due, 
 the payment inures to the benefit of the husband 
 and the money becomes absolutely his. And in like 
 nnanner the husband is entitled absolutely to all 
 
 137
 
 WOMAN UNDER THE LAW 
 
 sums of money which may be received by a third 
 person on her account during marriage. But some 
 difficulties arise in deciding when a person holds 
 adversely. It is held in Massachusetts that personal 
 apparel furnished by a husband to his wife, or pur- 
 chased by the w^ife, with the consent of her husband, 
 with money given her by him from a fund formed 
 by their joint earnings, remains the property of the 
 husband, and the w^ife cannot maintain an action 
 against a carrier for the loss thereof. 
 
 All such personalty the husband owns abso- 
 lutely and unqualifiedly. 
 
 The husband's only right over his wife's choses 
 in action is to reduce them to possession, therefore, 
 a husband cannot dispose of them by w^ill ; w^hen so 
 reduced they are personalty in possession, and vest 
 absolutely in him. At common law^ a husband had 
 a naked power over the choses in action of his w^ife, 
 but it was one which he was not obliged to exercise, 
 even for the benefit of creditors. This right of the 
 husband over his w^ife's choses in action must be 
 exercised during coverture. It ceases with the death 
 of either party, or with absolute divorce. It w^as 
 held in an early Massachusetts case that marriage 
 is an absolute gift to the husband of all the wife's 
 personal chattels in possession; and so it is also of 
 choses in action, if he reduces them to possession by 
 receiving or recovering them at law. But on the 
 dissolution of the marriage, either by the death of 
 the husband or by a divorce, choses in action not 
 reduced to possession during the coverture remain 
 the property of the wife. Usually it is said that 
 choses in action differ from choses in possession, in 
 that the former survive to the wife. Though choses 
 in action are property, they are not so far the hus- 
 band's property as to pass under an assignment of 
 all his personal property. An assignment in bank- 
 
 138
 
 HUSBAND AND WIFE 
 
 ruptcy has not the effect of reducing into possession 
 a chose in action belonging to the wife, so as to 
 destroy her rights of survivorship. Even though 
 the husband get possession of her property, it is a 
 question of intent whether it is or is not reduced to 
 possession. If the husband has obtained the pos- 
 session of the property without suit, and it still re- 
 mains in his hands, he will in many cases, be ad- 
 judged the trustee of the wife. He may get posses- 
 sion as administrator, agent or trustee, but to reduce 
 he must take possession as husband. 
 
 The individuality of the wife, by the common 
 law, is merged in that of the husband, as we have 
 seen, and during coverture, she could not hold 
 property or exercise property rights. Through mar- 
 riage, by operation of law, all her personalty in pos- 
 session passed absolutely to her husband, he 
 acquired a right to reduce her choses in action to 
 possession, and thus make them his own; of her 
 chattels real he became practically absolute owner, 
 and he was entitled to all the rents and profits of 
 her real estate. She could not acquire property 
 without his consent. But from the earliest times, 
 courts of equity encroached on this simple and 
 savage system, and statutes have now more or less 
 abolished it in every state where the common law 
 has been in force. 
 
 The husband's allowance to his wife for her 
 dress and personal expense is pin money and it takes 
 various forms; sometimes it takes the form of a 
 gift to the wife of her savings out of the household 
 expenses. 
 
 A wife's equity to a settlement is her right en- 
 forcible in equity to have a settlement for the benefit 
 of herself and her children out of her equitable 
 choses in action. This settlement may be made by 
 a court of equity or on application of a trustee, or 
 
 139
 
 WOMAN UNDER THE LAW 
 
 of the husband, or of the wife, out of any fund over 
 which it has jurisdiction. Whether a settlement 
 shall be made seems to be determined by the prac- 
 tice of the particular court, and to be within its dis- 
 cretion. The amount depends on the special cir- 
 cumstances of each particular case. The children 
 have not by themselves any right to a settlement. 
 
 A married woman's equitable separate prop- 
 erty is property which is so settled upon her that 
 courts of equity recognize it during her coverture 
 as her own, unaffected by her husband's marital 
 rights. It is an inseparable incident to a separate 
 estate in the wife that the husband has no control 
 or dominion over it, and the cases all agree, that 
 while no particular form of w^ords is necessary to 
 the creation of a separate estate, yet there must ap- 
 pear upon the face of the instrument a clear and 
 manifest intention to exclude the marital rights of 
 the husband. A trust created for the separate use 
 of the w^ife may be declared, either in express terms, 
 or it may be inferred from the manner in v/hich the 
 property is to be enjoyed, or the directions given 
 concerning its management. In the wife's ordinary 
 equitable estates all the marital rights of the hus- 
 band exist. 
 
 In order that this estate of the w^ife may exist, 
 the sole requisite is that the terms of the settlement 
 show that it was intended by the settlor that in the 
 property in question the husband in question should 
 have no marriage rights. No technical w^ords are 
 necessary to show this intent. Technical w^ords, 
 it is true, are not necessary to create a separate es- 
 tate in the wife, but adequate language must be 
 used, in making the gift, to manifest a decided in- 
 tention to transfer a separate interest. It is not now^ 
 necessary to name a trustee. With reference to the 
 wife's powers over her equitable estate, two view^s 
 
 140
 
 HUSBAND AND WIFE 
 
 have prevailed. ( 1 ) That she has all the powers 
 of a feme sole, save those denied her by the terms 
 of the settlement. This rule prevails in England, 
 Alabama, Arkansas, California, Connecticut, 
 Illinois, Kentucky, Maryland, Missouri, New Jersey, 
 New York, Tennessee, Texas, Virginia, West Vir- 
 ginia and Wisconsin. (2) That she has no powers 
 save those given her by the terms of the settlement. 
 This rule prevails in Florida, Mississippi, North 
 Carolina, Pennsylvania, Rhode Island and South 
 Carolina. 
 
 In some states, by statute, a wife has dower in 
 leasehold property and other personalty, but at 
 common law the wife has, during coverture, no 
 right in her husband's personalty, except her right 
 to have maintenance or alimony out of it, in a 
 proper case and her right to dispose of it, if aban- 
 doned. He may give it away and do with it as he 
 pleases, if his act takes effect during coverture. But 
 in most states he cannot leave it all away from her 
 by will; she has her tw^o-thirds. 
 
 By an agreement before marriage, husband 
 and wife may vary or wholly waive their rights in 
 each other's property. 
 
 When two tenants in common, or joint tenants 
 marry, the character of the estate held by them is 
 not changed, though each has, in the interests of 
 the other, the same estate as he or she w^ould if the 
 other w^ere a tenant in common, or a joint tenant 
 w^ith some third party, instead of with him or her. 
 
 Since, at common law^, any personalty of the 
 w^ife belonged to her husband, if he reduced it to 
 his possession during coverture, there is no reason 
 why this should not apply to property in which he 
 is partly interested. And yet a bequest to a hus- 
 band and •v^'ife and a third party equally gave hus- 
 band and wife only one share, a moiety; and any 
 
 141
 
 WOMAN UNDER THE LAW 
 
 chose in action standing in their joint names went 
 absolutely to the survivor. 
 
 Husband and wife are, at common law, one 
 person, so that when realty or personalty vests in 
 them both equally with a third party, they take 
 together but one share a moiety, and the third party 
 takes the other moiety. That moiety or in case the 
 whole property vests in them alone, they teike as 
 one person, — they take but one estate as a cor- 
 poration w^ould take. In the case of realty, both 
 are seised of the whole, and each being thus seised 
 of the entirety, they are called tenants by the en- 
 tirety, and the estate is an estate by entireties. In 
 the case of personalty, there is strictly no tenancy by 
 the entirety, because personal property is not sub- 
 ject to estates at common law^, and the husband has 
 the absolute right to the wife's chattels, which right 
 his part ownership of the chattels would not inter- 
 fere with, but entireties are said to exist in chattels 
 real. In Kentucky, Maryland, Iowa and New 
 Hampshire, statutes have changed this estate; and 
 in Ohio and Connecticut it has never been recog- 
 nized. 
 
 Estates by entireties may be created by will, 
 by instrument of gift or purchase, and even by in- 
 heritance. Each tenant is seized of the whole, the 
 estate is inseparable — cannot be partitioned; 
 neither husband nor wife can alone affect the in- 
 heritance, — the survivor's right to the whole. It is 
 the better view that married women's separate prop- 
 erty acts do not destroy an estate by entireties. In 
 Arkansas, Indiana, Maryland, Michigan, Missis- 
 sippi, Missouri, New York, Pennsylvania and Wis- 
 consin, it is held that separate property acts do not 
 destroy them. But in England, Alabama, Illinois, 
 Iowa and New Hampshire it is, on the other hand, 
 held that estates by entireties depend upon the unity 
 
 142
 
 HUSBAND AND WIFE 
 
 of husband and wife, and that the separate property 
 acts have destroyed these unities as far as the prop- 
 erty is concerned, and that with the existence of 
 this unity estates by entirety have ceased to exist. 
 An absolute divorce renders husband and wife 
 tenants in common in their estates, the estate by the 
 entirety being thereby destroyed. 
 
 143
 
 CHAPTER VI. 
 MARRIED WOMEN 
 
 A wife was under the power and authority of 
 her husband at common law ; her legal identity was 
 merged in his; and she had of herself no separate 
 legal existence in the eye of the law. Therefore, 
 all her contracts were absolutely void ; her torts and 
 crimes committed in her husband's presence were 
 his rather than hers, and she could neither sue nor 
 be sued without him. The inconvenience of the 
 contract application of this silly fiction gave rise to 
 exceptions. 
 
 When a husband has abjured the realm under 
 the old common law^, or has permanently abandoned 
 his wife to the state under the present law, she has 
 most of the capacities of the feme sole; she may 
 make contracts, w^ills, sue and be sued. 
 
 The woman has still a husband, and is not, 
 therefore, a feme sole after a divorce a mensa et 
 thoro; and so in England she is held to remain un- 
 der all the disabilities of coverture, but in the United 
 States a different rule has been adopted and she may 
 generally contract, sue and be sued as if unmarried. 
 
 When one is outlawed, banished, or imprisoned 
 for life, he is civilly dead, and his w^ife has the 
 capacity of a feme sole. Thus, she may contract, 
 make a will, sue and be sued as if unmarried. 
 
 The insanity, infancy, or other incapacity of a 
 husband, as a general rule, does not affect the per- 
 sonal status of his wife. There seem to be no cases 
 just on this point, but the proposition is an easy in- 
 
 144
 
 MARRIED WOMEN 
 
 ference from the well known principles on this 
 subject. A deed by an infant husband and his wife 
 of her property is voidable by him, and if avoided 
 by him, it is void as to her also. A husband's mere 
 sickness or inability does not give his w^ife pow^er to 
 act for him, except so far as this is necessary for the 
 support of his family or the preservation of his 
 property; and there can be no implication of her 
 agency in fact if he is insane. But if he is insane 
 and confined in an asylum out of the State, she has 
 the capacity of a feme sole, just as if he w^ere civilly 
 dead. A statute which provides that when from 
 drunkenness, from profligacy or other cause, the 
 husband fails to provide for his wife, she may act as 
 if sole, does not include insanity, but only some 
 cause within the husband's control. 
 
 At common law a wife could act fully as agent, 
 executrix and trustee, as w^ill hereinafter be shown. 
 The fiction of the non-existence of wives, in 
 the eye of the law resulted in great inconvenience 
 and courts of equity from the earliest days recog- 
 nized the legal existence of wives with respect to 
 property settled on them to their sole and separate 
 use; so that with respect to such property married 
 women have always had many of the capacities of 
 unmarried women. But these capacities w^ere 
 limited to the aforesaid property; a w^ife has no 
 greater personal capacity in equity than at law. 
 
 We must look to statutes for the most part, in 
 order to determine the status of married women. 
 For in all the states, the common law system of 
 coverture has been more or less destroyed by legis- 
 lation. The main difficulty lies in determining how 
 far a particular statute has modified the pre-existing 
 common lav/. 
 
 When a party labors under several disabilities, 
 each must be considered by itself, and must be given 
 
 145
 
 WOMAN UNDER THE LAW 
 
 as great effect as if it existed by itself. In the ab- 
 sence of express legislation, neither a man nor a 
 woman attains full age by marriage; a marriage, 
 however, with the parents' consent, emancipates an 
 infant. A statute which enables a married woman 
 to make certain contracts if of "full age" means full 
 age generally, not full age for marrying. The hus- 
 band of an infant has the same marital rights and 
 liabilities as the husband of an adult. Upon the 
 marriage of an adult with a w^ard under age, the 
 rights and powers of the guardian cease, both as 
 respects her person and her estate, and the husband 
 acquires the same rights and incurs the same obliga- 
 tions which he acquires and incurs in case his wife 
 is of age. Infancy and coverture are separate and 
 distinct disabilities, and each must be considered by 
 itself. They may exist separately, or they may co- 
 exist. When they co-exist, the removal of one in 
 no way is the removal of the other. And the same 
 applies to insanity and coverture. The deed of an 
 infant married woman being voidable for infancy, 
 the question arises whether it can be voided or con- 
 firmed while the disability of coverture continues. 
 The general rule at common law^, and even under 
 modern acts (since the coercion of the husband over 
 the wife is not destroyed) is that the w^ife cannot 
 confirm the deed, excepting by a new deed executed 
 in accordance with the married woman's acts after 
 attaining full age, until both of her disabilities have 
 been removed; that is to say, until she has attained 
 full age and coverture has been terminated by death 
 or divorce. A statute which enables a w^oman to 
 confirm her deeds during coverture does not com- 
 pel her to do so. But as to statutory separate prop- 
 erty a married w^oman may be estopped ; and it 
 seems that by her conduct during coverture after at- 
 taining full age, she may estop herself from void- 
 
 146
 
 MARRIED WOMEN 
 
 ing her deed after the termination of coverture. 
 Neither can she, it is said, during coverture disaffirm 
 her deed by any act in pais ; but a husband can dis- 
 affirm a deed of his w^ife in vv^hich he as an infant is 
 joined. Still, by making another conveyance dur- 
 ing coverture, or by bringing suit for the land, she 
 may disaffirm her deeds; and under modern statutes 
 it is said she may disaffirm her deeds generally dur- 
 ing coverture. She need not restore the considera- 
 tion; but she must not delay her avoidance beyond 
 a reasonable time after the cessation of coverture. 
 A statute validating the deeds of infant married 
 women is not retrospective in its operation. 
 
 The will of a married woman at common law^ 
 was, generally, a mere nullity, because by marriage 
 her legal existence was merged in that of her hus- 
 band; she had no separate disposing power; she 
 ^vas not sui juris; she was not a free agent, but was 
 under the pov/er and control of her husband; her 
 incapacity depended also on the fact that she had 
 nothing to dispose of, it is said. The husband 
 acquires by the marriage the right to use and oc- 
 cupy, during coverture, lands belonging to the v^ife, 
 whether her title be governed by the "woman's law" 
 or not. The personal property of the wife in her 
 possession at the time of her marriage vests ab- 
 solutely and immediately in the husband, who can 
 dispose of it as he pleases, and on his death it goes 
 to his representatives. The disability of coverture 
 in respect to liens differs materially from that of 
 infancy, idiocy, or lunacy, and though it be re- 
 moved, any other disability will remain. 
 
 A married woman at common law who, owing 
 to peculiar circumstances, had the capacities of a 
 feme sole, could make a will, as w^here her husband 
 w^as civilly dead, being, for example, banished for 
 life, but the adultery and desertion of her husband 
 
 147
 
 WOMAN UNDER THE LAW 
 
 did not enable her to make a will. So when she was 
 acting in a representative capacity, for example, as 
 executrix, she could make a will, or w^here she was 
 acting for and in the place of another, as where she 
 made a w^ill of personalty with her husband's con- 
 sent, or under a power. If there is no question as 
 to the right of a married woman to execute a pow^er 
 of any kind, the law^ prescribes no particular cere- 
 monies to be observed in the execution of a pow^er ; 
 but the terms of the power may direct it to be ex- 
 ecuted by a note in writing, or by v/ill or deed, or 
 may prescribe any ceremonies which the w^ill or 
 caprice of the party creating it may think proper, 
 all of which must be complied with, however unes- 
 sential or unimportant they may appear to be in 
 themselves. A married w^oman may w^ill realty 
 even, under a power given by a mere agreement 
 between herself and her husband before marriage, 
 and w^hen she acts under a pow^er the w^hole doc- 
 trine of disability by coverture is eliminated. In 
 executing a pow^er she need not conform to the re- 
 quirements of married w^omen's statutes, nor have 
 the consent or joinder of her husband; she may 
 execute it in favor of her husband, and her mode 
 of executing it and her right to do so are unaffected 
 by married women's enabling acts. She may re- 
 voke a v/ill made under a power by another subse- 
 quent will; but any paper which is to take effect as 
 a will must be probated. 
 
 Since courts of equity have long recognized the 
 separate existence and separate property of married 
 women, the reasons for the incapacity to will under 
 the common law^ do not exist in equity and married 
 women's vv^ills of equitable and separate estate are 
 very common. 
 
 General statutes as to wills do not affect the 
 capacity of married women. A statute authorizing 
 
 143
 
 MARRIED WOMEN 
 
 a wife to will generally, as has been seen, does not 
 authorize a will to her husband; but the soundness 
 of this really is questionable. A statute prohibiting 
 a husband from witnessing his wife's will does not 
 render it unlawful for him to be present when she 
 executes it. 
 
 In most of the states the Separate Property 
 Acts provide for the willing of separate property. 
 
 A distinction must be made between the valid- 
 ity and the operation of a married woman's will. 
 At common law she could not will; first, because 
 she had no legal capacity, and second, because dur- 
 ing her husband's lifetime she had no property for 
 a will to act upon; and on the one hand we find her 
 wills sustained when she has no capacity, as w^here 
 she disposes of her husband's property, whether 
 held in her right, or in his own, with his consent, 
 while, on the other hand, w^e find a perfectly valid 
 will inoperative as to certain property, for example, 
 to property w^hich passes to her by survivorship. It 
 would seem that when her power to will is given by 
 the instrument or statute vv^hich secures the prop- 
 erty to her separate use, she can will the w^hole of 
 the same and defeat the marital rights of her hus- 
 band; but that when her incapacity to will is re- 
 moved by statute generally, her will operates only 
 so far as it does not conflict with the marital rights 
 of her husband. In probating a married woman's 
 will, its operation must be limited to the kinds of 
 property which it is in her power to dispose of. 
 
 A husband cannot by his consent give his wife 
 any personal capacity to make a w^ill, for the status 
 of married w^omen depends on the law and not on 
 contract; the most his consent can do is to enable 
 her to dispose by will of property wrhich belongs 
 to him, either in his own right or in her right, as her 
 husband, and it seems that this applies only to per- 
 
 149
 
 WOMAN UNDER THE LAW 
 
 sonal property. The assent is generally revocable 
 by the husband at pleasure, until the will is pro- 
 bated; it is revoked by his death, and he must, there- 
 fore, survive her to render the will good. Generally 
 under the statutes the husband's assent is not neces- 
 sary for any purpose. 
 
 The principles applicable to wills of married 
 women are generally applicable to their gifts causa 
 mortis. A wife may make a donatio mortis causa 
 of her equitable separate estate, or of any of her 
 personalty w^ith her husband's consent, and she may 
 make a gift to her husband himself. But she can- 
 not, of course, give aw^ay what she has previously 
 disposed of. 
 
 The same capacity is required to revoke a will 
 as to execute it, and it is because a married woman 
 cannot revoke a w^ill at common law that marriage 
 itself works a revocation. Any valid w^ill made 
 during coverture revokes all other -wills, so far as 
 they are inconsistent with it. If she makes a w^ill 
 she may revoke one. A w^ill made before marriage 
 by a w^oman v/as at common law^ revoked by her 
 marriage. In many states the rule that marriage 
 revokes any will is adopted by statute, and where 
 this rule w^as adopted by statute only as to married 
 women, statutes afterwards passed increasing the 
 powers and capacity of married women do not 
 repeal it. 
 
 The death of a husband w^ill not revive a will 
 made before marriage and revoked by marriage; 
 but there must be a republication. A valid will 
 made during coverture remains valid and does not 
 have to be republished when the marriage is dis- 
 solved. An invalid will made during coverture 
 does not become valid when the husband dies; the 
 wife's intention to adhere thereto will not suffice; 
 nothing can give it efficacy save a republication. A 
 
 150
 
 MARRIED WOMEN 
 
 republication means a re-execution, with all the 
 formalities required by law. A codicil duly exe- 
 cuted is a republication. 
 
 Wills of real estate are governed by the law of 
 the state where the lands lie ; wills ol personalty by 
 the law of the testator's domicile. The validity and 
 effect of a w^ill of a married woman depends on the 
 law which exists at the time of her death, though its 
 validity had been held to depend on the law existing 
 at the time of its execution. 
 
 The law of contracts requires that there shall 
 be at least two parties to every contract, and that 
 the parties shall be capable of giving their consent. 
 In the first of these rules, since at common law hus- 
 band and wife are one person, lies the main reason 
 for the invalidity of contracts between them ; in the 
 second, since the wife is said at common law to have 
 no will of her own, but to be under the power and 
 control of the husband, lies the reason for the in- 
 validity of all contracts of married women. As the 
 unity of husband and w^ife has been gradually en- 
 croached upon in equity and by statute, and as the 
 disabilities of married women have been gradually 
 directly and indirectly removed, the number of con- 
 tracts w^hich a married woman can make has been 
 gradually increasing. But legislation has been so 
 dumb and blind, and legal decisions so inconsistent, 
 that the present state of the law of contracts of mar- 
 ried w^omen is most confused. The word "con- 
 tract" as used in this connection includes all trans- 
 actions between consenting parties, although deeds 
 are particularly discussed hereinafter. 
 
 At common law, generally, all contracts, 
 agreements, covenants, promises, and representa- 
 tions of married women were absolutely null and 
 void. The grounds of their invalidity, as we have 
 seen, were that a married woman had no legal ex- 
 
 151
 
 WOMAN UNDER THE LAW 
 
 istence, being merged in her husband; that she had 
 no separate existence, and that she had no consent- 
 ing capacity, as she was under the power and con- 
 trol of her husband, and his wish was her law. The 
 common law rule, although for the greater part 
 done away with by equity and by statute, still so far 
 exists that any capacity of a married woman to con- 
 tract is regarded as exceptional, and the grounds 
 thereof must be alleged and proved by the one set- 
 ting it up. Married women are still prima facie 
 unable to contract at all. 
 
 Under certain circumstances, at common law 
 married women had the capacities of unmarried 
 w^omen, and could, therefore, contract as feme s ole. 
 This w^as the case when the husband w^as an alien 
 residing abroad, or when he had been banished, 
 or had abjured the realm, or w^as civilly dead. In the 
 United States a permanent departure from the state, 
 and renunciation of his married rights by a hus- 
 band, invests his wife with the capacities of a feme 
 sole, though w^hether under such circumstances she 
 can make a valid deed seems to be disputed. In 
 Texas, mere separation, if permanent, is sufficient 
 to produce this result. The true rule seems to be 
 that neither departure from the state alone nor 
 separation alone is sufficient ; but the husband must 
 have renounced his marital rights and put himself 
 permanently beyond the processes of the courts of 
 the state. 
 
 Independently of statute, a married woman's 
 personal contracts are no more binding in equity 
 than they are at law; as to her person and her 
 general property her contracts are absolutely void, 
 so that even her deed, if not properly executed at 
 law^, cannot be reaffirmed, corrected, or enforced in 
 equity. But equity recognizes the separate prop- 
 erty and existence of married women, in most states 
 
 152
 
 MARRIED WOMEN 
 
 and a wife is, with respect to such property, treated 
 as a feme sole and her contracts relating to the lat- 
 ter are enforced in a proceeding in rem. Thus, her 
 contract to sell her equitable separate estate is valid, 
 and even if not enforceable against her specifically, 
 if she has received the purchase money, the property 
 is liable for its repayment; and a contract, in con- 
 sideration of a loan, to pay it back, and to give a 
 mortgage for it on her equitable separate estate, 
 may be enforced as an equitable mortgage. That 
 is to say, any contract charging her equitable sepa- 
 rate property for a payment of money may be en- 
 forced against said property and such contracts may 
 be made through any one, including her husband, 
 as her agent. It is generally held that her equitable 
 separate property is not liable unless the wife has 
 the right of disposing of it; thus, when she has only 
 a life estate the reversion is not liable; when she 
 cannot dispose of the whole of her land, only the 
 rents and profits are liable; and when she cannot 
 dispose of it at all, it is not liable at all. It is not 
 liable when no credit is given to it, as when the 
 credit is given to the husband; and in the case of 
 household expenses the credit is presumed to have 
 been given to the husband; it is not liable when 
 there is no consideration; it is not liable if expressly 
 charged. As to this, of course, the intention need 
 not be expressed in the contract, or in writing. It 
 is liable if impliedly charged. The intent to charge 
 may, except in North Carolina, be proved by special 
 evidence. In many courts, to prevent the implica- 
 tion of a fraudulent intent in the married woman at 
 the time she contracted her debts not to pay them, 
 the law raises a presumption that she intended to 
 pay them in the only way possible, namely, out of 
 her separate property; and such courts hold her 
 property prima facie liable on all her contracts, on 
 
 153
 
 WOMAN UNDER THE LAW 
 
 the doctrine of implied intent. This presumption 
 may be rebutted by showing that neither party had 
 in mind payment out of her estate. Very rarely, 
 however, is this liability said to be independent of 
 expressed or implied intent to charge, as it is in 
 Virginia. 
 
 It is liable on contracts in relation to it, or on 
 the faith and credit of it. 
 
 But the only satisfactory way of determining 
 the law in each particular state is to examine the 
 statutes and decisions thereof. 
 
 The present capacity of married w^omen to 
 contract depends largely on statutes; and the effect 
 of statutes, general and special, on the common law^ 
 rules forms a most important subject. Separate 
 property acts do not enable a married woman to 
 make personal contracts — this is universally admit- 
 ted. 
 
 But three classes of her contracts have been 
 recognized as binding on her statutory separate 
 property : ( 1 ) contracts which would bind her 
 equitable separate property; (2) contracts which 
 are expressly authorized by the statute — as when 
 a statute empowers her to make contracts relating 
 to or with reference to her property; (3) contracts 
 which are impliedly authorized by statute — con- 
 tracts without the capacity for making which she 
 could not possess, use and enjoy her property as it 
 was intended, under the statute, that she should. 
 
 A married woman in California is incapable 
 of contracting a personal obligation except in cases 
 provided by statute. 
 
 The common law disability has not been re- 
 moved in the District of Columbia; but a married 
 woman may contract to repair her house, — to put it 
 into rentable condition. 
 
 Though the wife may conduct a mercantile 
 
 154 
 
 I
 
 MARRIED WOMEN 
 
 business in Florida and the husband may act as 
 agent for her in that business, yet she cannot make 
 a contract herself, or by him as agent, on which she 
 will be personally liable. 
 
 In Georgia, a married woman is not liable on 
 her note given for money borrowed to pay a pre- 
 mium due by the husband upon the policy of insur- 
 ance on his life, where it is not shown that the policy 
 w^as for her benefit alone. 
 
 In Illinois the power of the wife under the en- 
 abling laws of the State to engage in trade is quite 
 extensive. 
 
 In Indiana a married woman may execute a 
 promissory note for property purchased by her. 
 
 In Kentucky a note given by a married woman, 
 not for necessaries for herself and family, and for 
 which credit was not given her, is void. 
 
 In Maryland a bond executed by a feme covert 
 alone without the joinder of her husband, is void 
 and no action can be maintained upon it, either 
 during coverture or afterward. 
 
 In Massachusetts a married woman who en- 
 dorses bank promissory notes at her husband's re- 
 quest, for him to fill up and use, which afterward 
 and in her absence he fills up and negotiates for 
 value at a bank, is liable to the bank as endorser, 
 under the Massachusetts statutes, which give her 
 the non-restrictive right to contract except v/ith her 
 husband. 
 
 In Michigan a married woman can make an 
 executory contract that is not directly connected 
 with her estate. But she may render herself liable 
 for things bought by her for family use; yet she is 
 net liable upon a contract for the board of herself 
 and husband; she cannot make a valid contract for 
 the erection of a building upon the joint property 
 of herself and husband, but can contract only with 
 
 156
 
 WOMAN UNDER THE LAW 
 
 reference to her sole or separate property. A con- 
 tract in writing to bind her must have been made 
 on behalf of her sole property. The statutes do not 
 authorize a wife to become personally liable on an 
 executory promise except concerning her separate 
 estate. 
 
 In Minnesota, the capacity of married women 
 to be bound and estopped by their contract is in- 
 cident to their enlarged power to deal with others 
 under Minnesota statutes. 
 
 The statutes of Mississippi in relation to mar- 
 ried women have not relieved a wife from common 
 law disabilities to make contracts; unless she has a 
 separate estate she is subject, as to her contracts, to 
 the disability of coverture ; and a personal judgment 
 against a married woman in Mississippi, in an ac- 
 tion against her on her promissory note, is a nullity. 
 
 Under the revised statutes of Missouri a mar- 
 ried woman may act as feme sole as to her separate 
 property, and may make contracts for the purchase 
 of personal property with her separate means. 
 
 Under the New Jersey revision a wife may con- 
 tract to sell her real estate, and specific performance 
 thereof will be decreed, after her husband's death, 
 against one purchasing with knowledge thereof. 
 
 In New York a married w^oman may carry on 
 business and may make contracts in the prosecution 
 thereof; and in the course of her separate business 
 she can make negotiable paper which will be gov- 
 erned by the law merchant. Her contracts may be 
 either expressed or implied and may be made either 
 personally or by agent, and when within the statute 
 they w^ill charge her separate estate. As to all con- 
 tracts relating to her separate estate a married 
 woman under the laws of New York stands at law, 
 under the married woman's acts, on the same foot- 
 ing as if unmarried. 
 
 156
 
 MARRIED WOMEN 
 
 As to the power of a wife in North Carolina to 
 make contracts which will charge her separate es- 
 tate, see case of Matthews vs. Murchison, 1 7 
 Federal Reporter, page 760. 
 
 In Ohio the right to dispose of property which 
 attaches to the estate of a married woman is largely 
 regulated by statute. Her separate property is not 
 liable for her general engagements in the absence 
 of a contract valid in law to bind the same. Except 
 so far as capacity has been given to her by statute 
 to bind herself by her contracts they are void. She 
 may charge her separate estate at least to the extent 
 that such liability may be incurred for its benefit. 
 
 In Pennsylvania, the w^ife has only such power 
 over her personal property as is conferred by stat- 
 ute. All contracts made by the wife concerning 
 her separate estate, either for labor or materials for 
 improving the same, are subject to her disabilities 
 as a feme covert, except where a case is made out 
 for the court to charge her separate estate. Under 
 the Pennsylvania act, February 29, 1872, a married 
 woman can make a valid judgment note for a sew^- 
 ing machine purchased for her own use. Under the 
 Pennsylvania act of June 3, 1887, known as the 
 Married Person's Property Act, a married woman 
 may confess judgment, or bind herself or her estate 
 by contract, for three purposes, viz. : where she en- 
 gages in trade or business, in the management of 
 her separate estate, and for necessaries; but she 
 cannot bind her estate jointly as a feme sole. She 
 cannot enter into a valid agreement w^ith a third 
 person, without the consent of her husband, trans- 
 ferring to a person a sum of money in consideration 
 of his obligating himself to pay her an annuity out 
 of such sum during her natural life; and, if she 
 does so, it will be presumed that such third person 
 knew that she was acting ultra vires. 
 
 157
 
 WOMAN UNDER THE LAW 
 
 Under the South Carolina law, a married 
 woman cannot execute a valid contract of surety- 
 ship. A note given by a married woman for money 
 borrow^ed for her own use is valid under South Caro- 
 lina general statutes; and a note given by her for 
 money expended on account of her children at her 
 request is valid. 
 
 In Wisconsin, married women have not been 
 vested by statute with general power to bind them- 
 selves or their separate estates by the ordinary con- 
 tract of endorsement of a note. 
 
 The foregoing references will give an adequate 
 idea of the general trend of the statutory law^s of 
 the various states. Local statutes, however, should 
 always be consulted, as it is almost impossible to 
 lay down rules applicable to all the states. When a 
 separate property act gives a married w^oman capac- 
 ity to make certain specified contracts w^ith respect 
 to her property, or to change or encumber it only 
 by contract executed with certain formalities, it im- 
 pliedly restrains her from making any others, or 
 any, w^ithout such formalities, even in equity; but 
 the fact that courts of law imply from the terms of 
 a statute a limited capacity to contract, does not 
 necessarily prevent courts of equity from recogniz- 
 ing some further capacity. And, though some 
 courts have taken, as it is believed, the true ground, 
 that equity has nothing to do with statutory sepa- 
 rate property, the majority have held that her statu- 
 tory estate is bound by her contracts in equity pre- 
 cisely as it would have been had it been created by 
 a deed to her sole and separate use instead of by a 
 statute. Whether a particular contract is binding 
 on particular statutory separate estate depends on 
 the rule which w^ould determine in the state w^here 
 it was made, whether the said contract would be 
 binding on an equitable estate. Thus, in New^ Jer- 
 
 158
 
 MARRIED WOMEN 
 
 sey the contract must be beneficial to her, or must 
 be an express charge ; in Kansas, any contract is ir- 
 rebuttably presumed to have been intended as a 
 charge and be binding, etc. Two limitations to this 
 liability have been recognized : ( 1 ) she cannot 
 charge unless she can convey — a rule which has 
 been questioned, but which prevails as to her equit- 
 able separate estate. (2) If her husband's consent 
 to her conveyances is required, any contract of hers 
 to be a charge must be made with his consent — a 
 rule also questioned. There are cases, as suggested 
 above, w^hich deem charges as direct conveyances 
 and will not recognize them unless executed with all 
 the formalities required of a conveyance. A power 
 to convey always includes a power to charge. 
 
 When the separate property act authorizes a 
 married w^oman to make contracts "relating to" or 
 "with respect to" or "with reference to" her sepa- 
 rate property, the question is, what contracts do so 
 relate, etc.? Whether a contract for the purchase 
 money of certain property is a contract relating to 
 that property is disputed. But contracts for the cul- 
 tivation, improving, stocking, to supply with tools, 
 or -with work horses, of her separate farm, are con- 
 tracts relating thereto ; so is a contract for furniture 
 for her house; but not a contract for supplies for 
 the family, or for the purchase of a saddle horse. 
 So a contract providing for damages for an injury 
 to her property is a contract with reference thereto. 
 When the wife's capacity to contract with reference 
 to her separate property is implied from her capac- 
 ity to hold, use and enjoy the same, as being in- 
 volved therein, the question is, what contracts are 
 necessary and proper to render her tenure, use and 
 enjoyment of the property as full and beneficial as 
 was intended; whether, when she may acquire by 
 purchase, she may buy on credit, is disputed; but if 
 
 159
 
 WOMAN UNDER THE LAW 
 
 she may trade, she may buy and bill the goods on 
 credit, and may make all contracts in the usucd 
 course of business. If she may earn for her own 
 use, she may buy a sewing machine to do her sew- 
 ing, or a piano to give her lessons on. She may 
 employ counsel to litigate her rights to her property; 
 she may employ servants and laborers thereon; she 
 may lease it, make corrtracts for its cultivation, and 
 repair, and for disposing of its produce. Whatever 
 is essential to make its use beneficial, she may do. 
 These contracts, it must be remembered, are not 
 binding on her personally, but they are enforced 
 against her property, in some states by a suit at law, 
 in others by a proceeding in equity. 
 
 General statutes relating to contracts, but not 
 expressly referring to married women, do not affect 
 the validity of married women's contracts, but ap- 
 ply to them only so far as they are valid under other 
 statutes. To illustrate : — A statute providing that all 
 deeds shall be valid between the parties though not 
 recorded, w^ould not render the deed of a married 
 woman valid; a statute providing for the giving of 
 a replevin bond does not enable a married w^oman 
 plaintiff to give such a bond; a statute relating to 
 auction bids would not make the bid of a married 
 woman valid; general insolvent laws have been 
 held inapplicable to married women; a statute re- 
 quiring the officer to certify that the party execut- 
 ing a deed was known to him does not apply to 
 married women's deeds executed under another 
 special act not requiring this. On the other hand, 
 under the National Bank Acts which do not men- 
 tion married women, they are liable for assessment 
 on their stock; and under statutes defining liability 
 of purchasers at mortgage sales without referring to 
 married woman, they have been held bound. 
 
 Statutes which secure to a married woman 
 160
 
 MARRIED WOMEN 
 
 the separate use and enjoyment of her property, 
 and which either do not refer to her contracts at 
 all, or authorize contracts "relating to," or "with 
 reference to * such property, do not enable her to 
 contract generally, but only in connection with 
 such property, and there are three classes of con- 
 tracts which may be authorized by these statutes, 
 to wit: — (I) contracts binding the property, in 
 equity, as if it were equitable separate property; 
 
 (2) contracts falling within the clauses expressly 
 authorized by the words "with reference to," and 
 
 (3) contracts necessary to the separate use and en- 
 joyment of the property as secured by the statute. 
 
 A woman's contracts which would be binding 
 on her equitable separate property in equity are 
 valid as against her statutory separate property in 
 the same way. 
 
 A married w^oman is not, with respect to her 
 statutory separate property, a feme sole. She has 
 by implication the capacity to make such contracts, 
 and any others, which are necessary to the exercise 
 of the capacities, or the enjoyment of the rights, ex- 
 pressly given her by the statute. 
 
 When the statute authorizes a married woman 
 to contract "with reference to," or "with respect to," 
 her separate property, her contracts to be valid must 
 be with reference to or vv^ith respect to her said 
 property. 
 
 The following contracts relate to, concern, 
 refer to, and respect a married woman's separate 
 property, to wit: contracts for the direct benefit of 
 the same; for selling the property; for cultivating 
 it; for improving it; for stocking it; for fencing and 
 repairing it ; for supplying it with laborers and with 
 tools; also a covenant for a title in a deed of such 
 property; also an agreement for the sale of the 
 same, but not an agreement for the purchase of 
 
 161
 
 WOMAN UNDER THE LAW 
 
 such property, or the purchase of furniture for her 
 separate house ; or of a horse for her separate farm. 
 A contract to buy a horse for pleasure riding is not 
 a contract with reference to her separate property, 
 nor is one for suppHes for the family, nor one by 
 which money is borrowed to buy property. 
 
 Statutes expressly authorizing or prohibiting 
 certain specified contracts are strictly construed, 
 and respectively neither authorize nor prohibit any 
 contracts not specified; but statutes expressly 
 authorizing specific contracts may, by implication, 
 prohibit or authorize, and contracts expressly pro- 
 hibiting certain contracts may, by implication, 
 authorize others. Under a statute which authorizes 
 one kind of contract no other can be made. So that 
 when a married woman is authorized to dispose of 
 her property by sale, she cannot dispose of it by 
 gift. The only capacities implied are those which 
 are necessarily incident to rights or capacities ex- 
 pressly given. 
 
 Likewise statutes prohibiting certain contracts 
 are directly interpreted, so that a prohibition against 
 contracts between husband and wife w^ill not apply 
 to contracts of the wife as authorized by her hus- 
 band. On the other hand, when a married woman 
 is authorized to make certain contracts with certain 
 formalities, she is impliedly restrained from making 
 any others. And a prohibition of certain contracts 
 in a statute may make clear the intention of the 
 legislature to authorize all other contracts of the 
 class to which the prohibited contract belongs; 
 thus, under a statute authorizing a married woman 
 to acquire property, provided that no acquisition 
 from her husband in prejudice of the rights of his 
 creditors shall be valid, authorizes her to acquire 
 from her husband in all cases when the rights of his 
 creditors are not prejudiced. 
 
 162
 
 MARRIED WOMEN 
 
 Under a statute expressly enabling a married 
 woman to contract as if unmarried, she may make 
 contracts generally, entirely unaffected by her 
 coverture; when a statute says that a married 
 woman may contract as if unmarried, it is presumed 
 to mean, literally and fully, but it is doubtful 
 whether she may make contracts directly with her 
 husband, as has been seen in the chapter on "Hus- 
 band and Wife." 
 
 If a statute which enables a married woman to 
 contract requires her contracts to be executed in a 
 certain way, this requirement must be substantially 
 complied with to give her contracts any validity. 
 This rule will be discussed fully later. But if she 
 has the capacity to contract independently of the 
 statute which requires the formalities, a contract 
 not complying therewith may still be valid. 
 
 The capacity of a married w^oman to contract 
 personally, or as to movables, depends on the law^ 
 of the place where the contract is made; to contract 
 as to immovables, on the law^ of the place where 
 they lie. 
 
 The validity of a contract, and the rights of 
 the parties thereunder, depend upon the law^ exist- 
 ing at the time it is made. 
 
 Marriage suspends the remedies against a mar- 
 ried woman on her ante-nuptial contracts, or rather 
 it makes her husband liable for them with her and a 
 judgment recovered on such a contract against hus- 
 band and w^ife can be satisfied out of the property 
 of either of them. Her husband's liability ceases 
 on her death or on divorce, while on divorce or his 
 death her full liability revives, and the same is said 
 to be the effect of any event which gives her the 
 powers of a feme sole, and her promise during 
 coverture to pay an ante-nuptial debt does not take 
 such debt out of the statute of limitations, being 
 
 163
 
 I 
 
 WOMAN UNDER THE LAW 
 
 itself void. In many states the husband's liability 
 for his wife's ante-nuptial debts has been destroyed 
 by statute, and her full liability on the same has been 
 declared. 
 
 It involves some difficult questions to deter- 
 mine what is required of a woman who has made a 
 contract while under the disabilities of coverture to 
 confirm it. 
 
 The mere fact that a wife survives her hus- 
 band does not give any efficacy to her contracts 
 made during coverture, though it has been held that 
 a contract enforceable against her during coverture 
 only in equity could be enforced at law against her 
 after coverture ; but her liability on her ante-nuptial 
 contracts revives, as her contracts made during 
 coverture are void and if voidable they cannot be 
 ratified, and therefore, according to the better view, 
 her mere promise to perform them made after 
 coverture (after divorce or death of husband) is 
 w^ithout consideration and void; but in some states 
 the moral consideration is deemed sufficient to sup- 
 port and render valid such a promise, and in others 
 the courts have expressly declined to decide this 
 point. 
 
 Whatever be the opinion as to the effect of an 
 express promise, there is no doubt that a mere rec- 
 ognition of the contract gives it no new validity. 
 A contract enforceable in equity is, however, ample 
 consideration for an express promise; so is the sur- 
 render of a note void as to her, but binding on 
 others; so is a note given for an ante-nuptial debt. 
 
 A married woman cannot set up her invalid 
 debt by parol, but she can confirm her easements 
 and debts by reacknowledgment and recording, by 
 estoppel, and in Iowa, may ratify her debt of the 
 homestead as if she had never been married. So by 
 
 164
 
 MARRIED WOMEN 
 
 bringing suit on an invalid contract she confirms it 
 by matter of record. 
 
 At common law a married woman had no legal 
 existence and could not, therefore, have any legal 
 representatives; but rather her legal existence was 
 merged in that of her husband, and he was for all 
 purposes her agent in law; so her ante-nuptial ap- 
 pointment of agent was revoked by her marriage. 
 Her capacity to contract through an agent is now 
 co-extensive with her capacity to contract directly: 
 thus, she cannot make a contract through an agent 
 which she could not make herself, as a contract with 
 respect to her property not separate; and she can 
 make through an agent such contracts as she could 
 make herself, as contracts charging her separate 
 estate, or in the course of her business. The posi- 
 tion of her husband as her agent, her appointment 
 of attorneys-at-law, and her powers of attorney, are 
 elsewhere discussed. 
 
 In considering the contracts of a married 
 woman it is important to distinguish between her 
 personal contracts, which bind her personally, and 
 her contracts with reference to her separate prop- 
 erty, which are binding thereupon. The distinction 
 originated in equity, which recognized her separate 
 ownership of property settled to her sole and sepa- 
 rate use, and her capacity to charge the same with 
 her contracts. Said contracts were not enforceable 
 against her personally, but only against the prop- 
 erty which became a kind of artificial person, in a 
 proceeding in rem. And so, under statutes creating 
 statutory separate estate, the courts continued to 
 hold that her contracts to be valid should be with 
 reference to her estate, and that mere personal con- 
 tracts were void unless expressly authorized. 
 
 A promise will not be implied by law when 
 the law would not recognize an express promise; 
 
 165
 
 WOMAN UNDER THE LAW 
 
 if she occupies premises, however, the law raises 
 an implied promise to pay rent. If she orders ma- 
 terials, the law implies a contract to pay for them. 
 But if she buys necessaries, the implied promise is 
 one of the husband, for he is liable therefor. And 
 if she receives money claimed by another, there is 
 no implied promise to pay it back. 
 
 A married woman cannot as a general rule 
 contract to buy or sell property, because a contract 
 to buy is a mere personal contract, and a contract to 
 sell is not one of the modes usually specified for the 
 disposition of married women's separate property. 
 Still an agreement to sell is a contract with reference 
 to the property, and may be valid as such. But 
 with a married woman's actual purchases and sales 
 it is different. It is not one of her privileges to buy 
 without paying, and therefore w^here she may 
 acquire by purchase she may buy on credit, and be 
 bound for the purchase money. A promise to pay 
 for separate property is a contract w^ith respect to 
 her separate property. So if she follows all modes 
 prescribed she may sell her property, and is bound 
 by her acceptance of any consideration. If her sale 
 is void and the purchaser has paid her the purchase 
 money, it is generally settled that he must bear the 
 loss. She may recover the property without restor- 
 ing the purchase money; though in some cases this 
 has been denied. 
 
 The promissory note of a married w^oman was 
 void at common law^; a mortgage for the sole pur- 
 pose of securing it was void; if made jointly with 
 another it was void as to her, but valid as to her co- 
 promissor; so as to a surety, it was equally void in 
 the hands of bona fide assignees for value w^ithout 
 notice. By accepting a note from a married woman 
 purchaser a vendor did not lose his lien. Now, a 
 party endeavoring to enforce a promissory note 
 
 166
 
 MARRIED WOMEN 
 
 must show that it falls within some equitable or 
 statutory exception; in Michigan, for example, it 
 must be show^n that it was for something connected 
 with her separate estate; in Louisiana, that it bene- 
 fitted her. 
 
 Under an act enabling a married woman to 
 contract as if sole, she may make a promissory note, 
 and validly endorse a note of her husband's firm, 
 and execute a note in blank, and be liable, though 
 her husband join with her and has been adjudged 
 bankrupt. 
 
 Under an act enabling her to contract with ref- 
 erence to her separate property, a note with refer- 
 ence to something else is not valid. 
 
 A release is a contract, and works as an estop- 
 pel, while a receipt is a mere statement — or a mere 
 admission of payment, and not conclusive. At com- 
 mon law^ she could give neither release nor receipt; 
 as her legal existence was gone, her present property 
 rights vested in her husband. 
 
 At common law a married v/oman could, of 
 course, not lease property, and in her leaseholds 
 her husband had very full rights. 
 
 When she can lease by statute expressly, she 
 is liable for the rent at will. A lease is, in fact, the 
 purchase of a term, and a married w^oman is liable 
 for the rent just as she would be for the purchase 
 money. If she can lease, she is liable on an implied 
 promise for the use and occupation of the premises 
 which she holds after the expiration of the lease, 
 even though her husband and family are living with 
 her. 
 
 For repairs on her property, at common law, 
 she was in no way liable. And even for repairs on 
 her equitable separate estate she was liable only if 
 she made the contract in such a w^ay as to bind her 
 said estate. From her mere knowledge that repairs 
 
 167
 
 WOMAN UNDER THE LAW 
 
 were being made on her property at her husband's 
 request, no promise on her part to pay therefor can 
 be implied. But when she is collecting the rents of 
 her separate property, and allows out of them for 
 repairs, she is bound. A contract for repairs is bene- 
 ficial to her estate, and is a contract with reference 
 thereto, and is a contract which, owing to her 
 ownership of her separate property, she may make 
 by implication. 
 
 From a purchase by the wife of family sup- 
 plies, a promise to pay on the part of the husband 
 and not of the wife is implied. If she expressly con- 
 tracts to pay therefor, she is liable only if she is 
 liable generally on her contracts, or expressly 
 charges her estate. For a purchase of family neces- 
 saries is not of itself a contract w^ith reference to her 
 separate estate, nor is it a contract which she can 
 make by virtue of her powers implied from her 
 ownership of her property. In some states her 
 property is made jointly liable with her husband's 
 for all family supplies, but it is a liability of her 
 property and not of herself. 
 
 At common law a married woman could not 
 be a surety because she could not contract at all. In 
 equity, though, in most states a contract made with 
 intent to charge equitable separate property there- 
 with is enforceable, even if made for the benefit of 
 another. In some states such contracts are enforce- 
 able only if beneficial to the woman or the property, 
 and surety contracts are void. But the general rule 
 is that all deeds, mortgages, etcetera, of a married 
 woman, made in accordance with the law^, are valid, 
 no matter whom they benefit; for a general power 
 or enabling act does not limit the married woman to 
 contract for her benefit, but some statutes expressly 
 accept suretyship contracts, and under these a con- 
 tract of a married woman jointly with another for 
 
 168
 
 MARRIED WOMEN 
 
 his debt is void as to her ; nor is a contract between 
 her and her husband any consideration in favor of 
 the payee for her endorsement of her husband's 
 note. And a suretyship contract is not a contract 
 with reference to her separate property, unless it is 
 charged thereon; nor is it a contract which she is 
 empowered to make by implication from her power 
 to hold and enjoy. The rules are the same whether 
 the wife becomes surety for her husband or for a 
 stranger. At common law^ a married woman had 
 no legal existence and no present property rights, 
 and therefore her deed, whether of power or her 
 own property was, like her other contracts, a mere 
 nullity. She could be debarred of her power or 
 divested of her property only by what is known as 
 "fine and common recovery. " Fines and common 
 recoveries have never existed in this country, and 
 do not now exist anyw^here, but statutes have taken 
 their places. In some states, independently of 
 statute, the joint deed of husband and wife has 
 always been recognized as if authorized by the com- 
 mon law. Whenever a w^ife held the position of an 
 unmarried woman, as w^hen her husband was 
 civilly dead or had abandoned the realm, or as to 
 her equitable property, she could deed her own 
 property as if unmarried. 
 
 Statutes have been passed everywhere rela- 
 tive to married women's deeds of dower, of the 
 reversionary interest in her realty, and of her statut- 
 ory separate estate. These are statutes expressly 
 referring to married women, as the general statutes 
 do not apply to their deeds, unless they deed as if 
 unmarried. The general rule is that a married 
 woman can convey her property except her equit- 
 able separate estate, only in the mode prescribed 
 by statute. The deed must be guaranteed and cer- 
 
 169
 
 WOMAN UNDER THE LAW 
 
 tified substantially as required by the statutes, or 
 it is mere waste paper. 
 
 When a married woman has the capacity to 
 deed her equitable separate property she executes 
 the deed. Unless the settlement provides otherwise, 
 as if unmarried, as to whether or not she has the 
 capacity there are three rules : ( I ) that she has the 
 capacity unless the settlement takes it away; (2) 
 that she has not the capacity unless the settlement 
 gives it; and (3) that she has the capacity to deed 
 away her estate during coverture, but not her rever- 
 sion. Her equitable property, which is not separate, 
 she must deed as she does her legal estate of the 
 same kind. 
 
 The general rule is that a married woman has 
 not capacity to dispose of her statutory separate 
 lands unless it is expressly given by statute. If the 
 statute expressly gives her the power to dispose of 
 her property, but describes some particular mode of 
 its disposition — some particular formalities — the 
 deed must substantially conform with the require- 
 ments of the statute or it will be wholly void. If 
 the statute expressly gives her the power of dis- 
 position, but names no particular mode of execu- 
 tion, she may execute her deed as if unmarried, and 
 if it is imperfect it may be confirmed, and w^ill be 
 valid in equity just as the imperfect deed of a mar- 
 ried w^oman is. 
 
 The husband's joinder in his wife's deed is 
 generally necessary to render it valid and is unnec- 
 essary only when she is expressly authorized to 
 deed as if sole or as if unmarried. The joint deed 
 of husband and wife need not be executed at the 
 same time and place; whether he shall join is dis- 
 cretionary with him and he cannot be compelled to 
 join; so it is a personal right w^hich cannot be dele- 
 gated; nor can he honestly claim compensation for 
 
 170
 
 MARRIED WOMEN 
 
 joining. His joinder is not necessary in his wife's 
 deed of her equitable separate estate, when she has 
 the power to convey as if sole, nor need he join in 
 her deed executed under a special power. Where, 
 by statute, a husband must joint in his wife's deeds, 
 she cannot without him make a good deed in equity, 
 or a good agreement to convey. 
 
 When a married woman executes a deed un- 
 der a pow^er she must directly conform with the 
 terms of the power; she must execute it herself; 
 she would not be bound by another signing her 
 name in her presence, nor by another filling in 
 blanks left by her, and she must acknowledge it in 
 conformity with the power, if the power refers to 
 the mode of acknowledgment. 
 
 Although the deed of a married woman be per- 
 fect on its face, she may show that in fact it was 
 obtained by fraud or duress, or was improperly 
 executed, and w^as therefore void. 
 
 As to her right to do this as against a party to 
 the fraud, or any party without notice of the defect 
 or fraud, or with notice of such facts as would 
 put him on guard, or on whose behalf the husband 
 has perpetrated a fraud, there is no doubt. And if 
 she in fact never executed the deed, and it is a for- 
 gery, she may impeach it as against any one ; but if, 
 though she executed the deed improperly, the cer- 
 tificate is perfect, she cannot, it seems, impeach it as 
 against purchasers w^ithout notice, it being a general 
 rule, founded on public policy, that defects of 
 execution cannot be alleged against bona fide pur- 
 chasers or assignees for value if the certificate be 
 perfect; as to them, in such cases, the certificate is 
 conclusive. The officer who made the certificate 
 cannot impeach the same, nor will the unsupported 
 testimony of the wife be sufficient to overcome the 
 certificate. If she acknowledged the signature, she 
 
 171
 
 WOMAN UNDER THE LAW 
 
 cannot say she didn't sign the deed; nor can she 
 allege that she didn't read or understand the deed 
 if she had full opportunities for so doing, and alleges 
 no fraudulent concealment; nor can she deny that 
 she assented when she silently did so; her declara- 
 tions made at the time of the execution are evidence. 
 If she has duly executed the deed, and has left it 
 with her husband, she cannot deny his offer to 
 deliver. 
 
 Independently of express statute, a married 
 woman may, w^here she has over her equitable sepa- 
 rate estate the powers of a feme sole , convey it by 
 pow^er of attorney. As to powers of attorney un- 
 connected with the conveyance of land, they gain 
 no validity by the seal and acknowledgment, and 
 their validity is tested as that of other contracts of 
 married women. 
 
 At common law^, a married woman's ante- 
 nuptial power of attorney was revoked by her mar- 
 riage. It is commonly said that a wife's executory 
 contract to make a deed of property is absolutely 
 void, and even her contract to deed property held 
 by her as trustee has been so held. When she has 
 full ow^nership of her property or may contract 
 generally as a feme sole, however, her agreement to 
 convey is valid. At common law^ the husband could 
 not by his agreement to convey affect the wife's 
 interest in her lands, though such an agreement 
 bound him. 
 
 One may be estopped by a judgment, by a 
 deed, by a contract, or by a tort ; and the general rule 
 as to married women is that they can be estopped 
 only by valid judgments or deeds; by contracts only 
 so far as they have the capacity to contract; and 
 only by torts of a kind for which they would be 
 liable. It is clear that a married woman under dis- 
 abilities cannot be estopped as if she were sui juris, 
 
 172
 
 MARRIED WOMEN 
 
 and the only way of determining in what cases she 
 may be estopped is to ascertain, first, whether the 
 alleged estoppel arises out of a judgment, deed, con- 
 tract, or tort, and second, whether such judgment, 
 deed, contract, or tort is binding as such on the 
 married woman. 
 
 For torts of any kind, except those against the 
 man she marries, committed before marriage, a 
 woman remains liable after her marriage; and her 
 husband is generally liable therefor with her. 
 
 For all torts committed by a married woman 
 during coverture, in person, except such as are com- 
 mitted under the coercion of her husband, and such 
 as are intimately connected with her invalid con- 
 tracts, and such as are committed against her hus- 
 band, she is liable as fully as if unmarried. Thus, 
 she may sue, and a judgment obtained may be satis- 
 fied out of her property, for assault and battery, for 
 trespass, for conversion, for slander, for fraud and 
 false and fraudulent representations connected with 
 her invalid contracts, for burning property, for 
 poisoning geese, and for various other causes. But 
 at common law she could not be held responsible for 
 the act of another as her agent, because she could 
 not contract, and therefore could not appoint an 
 agent ; still so far as she may, under statutes, appoint 
 an agent, or act by agent, she may be responsible for 
 agents' torts. When an act complained of w^as com- 
 mitted in the presence of her husband, the presump- 
 tion is that it was committed by her through the 
 authority and coercion of her husband, and that she 
 is not liable at all; but this presumption may be 
 rebutted by show^ing that she actively and volun- 
 tarily participated in the wrong, and in such case she 
 is as fully responsible as if her husband had been 
 absent. 
 
 In Florida, a married woman is personally 
 
 liable for her civil torts, including such frauds as do 
 
 173
 
 WOMAN UNDER THE LAW 
 
 not grow out of, or are not directly connected with, 
 or a part of, a contract which she has undertaken 
 to make. 
 
 In Connecticut, an action for placing obstruc- 
 tion in a highway is .maintainable against a wife 
 without joinder of her husband, provided the tort 
 was committed by her without actual coercion by 
 him. 
 
 In Indiana, married women are made liable to 
 action for damages for their torts; they take the 
 right to their separate estates with all its incidents, 
 and must use their property with due regard to the 
 rights of others. 
 
 In Massachusetts, a husband is liable for a sale 
 of liquor by his w^ife if near enough to influence her. 
 
 In Michigan, the wife is not chargeable with 
 the fraudulent intent of her husband, notwithstand- 
 ing he may have been her agent in the management 
 of her property and the conduct of her business. 
 
 In New Jersey, since the enactment of the 
 statutes empowering married women to transact 
 business independently of their husbands, they are 
 held amenable to the same rules as other persons in 
 reference to what may amount to fraud. 
 
 In New York, under the statutes, the husband 
 must be joined as defendant in an action for the 
 tort of the wife (having no relation to her separate 
 property) and is liable for recovery had therein. 
 
 Under the statutes of New York, a married 
 woman may have such community of interest with 
 her husband in relation to real estate as will render 
 her liable for his frauds relating to it; and when he, 
 professing to act as her agent, makes false represen- 
 tations although without her knowledge, and she 
 receives the proceeds, she cannot retain the fruits 
 of his fraud. 
 
 174
 
 MARRIED WOMEN 
 
 In Pennsylvania, a husband is no longer liable 
 for torts committed by his wife alone. 
 
 In Virginia, where a wife is sued as a sole 
 debtor, under the Virginia Married Woman's Act, 
 April 4, 1877, in an action of unlawful detainer, 
 the consent or non-concurrence of her husband can 
 have no effect w^hatever. 
 
 In Vermont, husband and w^ife are jointly 
 liable for her tort, but his liability terminates on her 
 death. 
 
 For her torts so intimately connected with her 
 invalid contracts that in order to hold her liable for 
 them her invalid contract would have to be substan- 
 tially enforced, a married woman is not responsible. 
 Thus, she cannot be sued for getting credit by false 
 and fraudulent representations that she is unmar- 
 ried (but his property she can charge), or for mis- 
 using property of which she is a bailee, or for mis- 
 appropriating money entrusted to her. But if her 
 contract is valid, the rule does not apply; thus, she 
 is liable for false and fraudulent representations 
 made in effecting a valid sale of her separate prop- 
 erty. 
 
 A married w^oman continues liable for any 
 crime committed before her marriage, and during 
 coverture may render herself liable to prosecution 
 for any crime as if unmarried, with the following 
 exceptions : ( 1 ) she cannot be guilty of conspiracy 
 with her husband; (2) or of larceny for appropriat- 
 ing his goods; (3) she cannot be prosecuted for re- 
 ceiving goods her husband has stolen; (4) or for 
 aiding him to escape detection in a crime he has 
 committed. 
 
 To convict a married woman for an act which 
 would be criminal were she unmarried when it was 
 committed, it must affirmatively appear ( 1 ) that 
 her husband was absent at the time, for from his 
 
 175
 
 WOMAN UNDER THE LAW 
 
 presence coercion is implied; (2) not being present 
 he did not or could not coerce her; (3) or unless it 
 is a crime malum in se (murder, robbery, treason, 
 etc.) ; or peculiarly feminine (as keeping a bawdy 
 house) ; or specially covered by a statute expressly 
 referring to married women. 
 
 The remedies by and against married women 
 are peculiarly connected with their rights, and in 
 any discussion of married w^omen's statutes the 
 nature of the rights involved must be kept constant- 
 ly in mind. 
 
 The marriage of a woman does not, at common 
 law, destroy her liability on her ante-nuptial con- 
 tracts, or for her ante-nuptial torts, but simply ren- 
 ders her husband jointly liable with her; nor does 
 she by marriage entirely lose her rights of action, 
 for, though her husband may reduce them to pos- 
 session, if not so reduced during coverture they sur- 
 vive to her ; so that if a suit is pending at the time of 
 the marriage, after marriage the husband has in- 
 terests to be affected, and the opposing party stands 
 in a new position, and the suit abates. But at 
 present the effect of marriage on pending suits is 
 almost entirely controlled by local statutes. In Ala- 
 bama, for instance, the suit does not abate, but the 
 marriage is suggested, and the husband is bound; 
 w^hile in Tennessee, the suit abates, it may be re- 
 vived against her husband, and in case of his death 
 survives against her. It is said a defendant may 
 plead in abatement, or by scire facias have the hus- 
 band made a party; and if he omits to do this, he 
 cannot allege coverture after judgment; or, if the 
 woman is a defendant, and no plea is entered, the 
 suit may proceed to execution without noticing the 
 marriage, and she may be taken in execution as if 
 sole. Generally speaking, if the husband is a neces- 
 sary party to a suit brought during coverture, he 
 
 176
 
 MARRIED WOMEN 
 
 should be joined upon his mcirriage in all his wife's 
 ante-nuptial suits. 
 
 At common law, speaking generally, a married 
 woman could neither sue nor be sued unless her 
 husband was joined with her, and this is still a prima 
 facie rule, and the causes which enable her to sue 
 or render her liable to be sued at all, must be alleged 
 and proved. 
 
 At common law, the suit so treated is the suit 
 of the husband and he could, as defendant, allow 
 judgment to be entered, or as plaintiff, release the 
 cause of action. He employed the counsel and was 
 liable for the costs. 
 
 In equity, independently of statutes, suits of 
 married women, except those for enforcing equity 
 to a settlement and thus concerning her equitable 
 separate estate, are governed by the same rules 
 which control suits at law. Still, in equity neither 
 the husband's bill nor his answer is binding upon 
 her. When applying for her settlement whatever 
 her choses in action, she sues by her next friend, 
 generally making her husband one of the de- 
 fendants. As to her equitable separate estate, she 
 sues by her next friend and jointly with her trustee, 
 if she has one, making her husband a defendant if 
 his interests in any w^ay conflict; and when she is 
 sued, her trustee (if she has any) should be sued; 
 and she may come in and give a separate answer by 
 her next friend. 
 
 In the different states, statutes have so differ- 
 ently changed the procedure in suits of married 
 women that no general statement can be given ; the 
 statutes of the state w^here the particular suit is 
 brought must in each case be consulted. 
 
 At common law, on the dissolution of mar- 
 riage, the joint suit of husband and wife in her right 
 abated; at present, generally the suit will either 
 
 177
 
 WOMAN UNDER THE LAW 
 
 abate and have to be revived by her representatives, 
 or may be amended and continued by her or her 
 representatives. 
 
 If the joinder of the husband is merely formal, 
 there is usually no abatement. Thus, in case of her 
 husband's death she has her right of action on her 
 chose in action as survivor; and if she dies, he, at 
 common law, prosecutes the suit as survivor or as 
 administrator. Divorce has much the same effect 
 as the husband's death. 
 
 Under different laws and circumstances, a 
 married woman's suits have been properly brought 
 in the following modes : ( 1 ) by husband and wife 
 jointly; (2) by the wife and her trustee; (3) by 
 the wife through her next friend; and (4) by the 
 wife alone. The first mode was the only one at 
 common law^, unless the wife had for some reason 
 the capacity of a feme sole; the second and third 
 were the usual modes of procedure in equity re- 
 specting equitable separate property; and the fourth 
 was the mode in w^hich the wife, who on account of 
 her husband's civil death, had the capacities of 
 a feme sole, brought suit at common law and is 
 the usual way in which she sues under modern 
 statutes. Although many statutes giving married 
 women modes of suits unknown at common law 
 have been construed to supersede the common law 
 modes, and to make a suit brought as at common 
 law improper, a statute which enables married 
 women to sue by next friend does not necessarily 
 deprive her of the privilege of proceeding jointly 
 with him as at common law; and in other cases the 
 common law mode has been held not wholly super- 
 seded. 
 
 Under different laws and circumstances suits 
 have been brought properly against married women, 
 in the following modes : ( 1 ) jointly w^ith husband ;, 
 
 178 
 
 \
 
 MARRIED WOMEN 
 
 (2) jointly with trustees; and (3) alone. The first 
 was the invariable mode at common law not only 
 because the husband w^as jointly liable with the wife 
 on all her contracts and torts, but because he had 
 present and substantial interests in all her property, 
 which might be affected by the suit. The second 
 w^as the mode when the wife had a trustee of equit- 
 able separate property. The third was the mode 
 in which a wife with the capacities of a feme sole 
 was sued, and is the usual mode under the statutes. 
 The peculiar defence of married women is, of 
 course, the defence of coverture. The fact of cover- 
 ture in some cases affects the defence of limitations ; 
 and the fact that the husband is joined sometimes 
 raises the question as to how^ far a defence of one 
 will be available for the other. The wife's bank- 
 ruptcy, for example, discharges both her husband 
 and herself from liability for her debts, while his 
 bankruptcy discharges him alone. As to other 
 defences, there are no special points relating to 
 married women, except so far as the management 
 of the suit is concerned. 
 
 If the record in the case of a judgment against 
 a married woman discloses the fact of her coverture, 
 a cause of action on which a married woman might 
 be liable, the joinder of all proper parties, and that 
 the married woman has been duly summoned, and 
 if the subject matter of the suit be one within the 
 jurisdiction of the court, the married woman is 
 bound thereby as if unmarried. If the record dis- 
 closes the fact of coverture, but not grounds on 
 which a married woman might be liable, the judg- 
 ment is void, for the court has no jurisdiction to en- 
 ter it ; if though it appears that the grounds of action 
 were such as might render a married woman liable, 
 but that the suit was not properly brought, the 
 defect is cured, and the judgment is valid. If the 
 
 179
 
 WOMAN UNDER THE LAW 
 
 record does not disclose the fact of coverture, the 
 married woman may in any proceeding show that 
 owing to her coverture she was not Hable at all, 
 but she cannot show^ that she was liable but was 
 improperly sued. Some cases hold more broadly 
 that in any case where the court had jurisdiction of 
 the parties (by summons or appearance), and of 
 the subject matter, the judgment is valid, and the 
 wife estopped; but the better rule is that a married 
 woman is estopped only when the judgment is valid, 
 and that a judgment on a contract is itself but a con- 
 tract and not binding on a party not bound by the 
 contract. A void judgment may be enjoined in 
 equity. For example, a personal judgment against 
 a married woman alone is valid, if the cause of ac- 
 tion v/ere a contract made by her as a feme sole 
 trader; but a personal judgment against a wife for 
 the balance of a mortgage debt is not valid where 
 she was not personally bound on the mortgage 
 notes; so a judgment on a void note w^as held ab- 
 solutely void by the same court which recognized 
 the binding force of a judgment against a married 
 woman by default on a tort committed by her. 
 
 On any valid general judgment against hus- 
 band and wife jointly, execution could formerly be 
 issued against the bodies of them both, and now 
 can be issued against the property of them both 
 except in such cases as those w^here the property 
 of the wife is exempt by the terms of some statute 
 or deed, or w^here a statute expressly provides that 
 a husband shall be only a formal party. If the judg- 
 ment is against the wife alone, her property alone 
 is liable; if the wife is not a party to the suit, her 
 property is not liable at all. The judgment may be 
 by its terms a lien only on her statutory separate 
 estate. 
 
 At common law, it must be remembered, a 
 
 180
 
 MARRIED WOMEN 
 
 husband had the absolute right to reduce his wife's 
 choses in action to possession, and was Uable with 
 her on all her contracts and for all her torts; and 
 as her legal existence w^as merged in his, he w^as the 
 active party in all suits in w^hich they were both 
 joined. She could not appoint an attorney, or re- 
 lease errors, or confess judgment; she could only 
 appear in person and plead her coverture, if that 
 would do her any good. So that in all cases in 
 which the common law^ procedure has not been 
 superseded, the husband employs counsel and 
 pleads and manages the case for himself and his 
 wife. If they are the plaintiffs, he can settle or dis- 
 miss the suit, and is alone liable for the costs; if 
 they are defendants, he may allow the suit to go 
 by default, or suffer judgment to be entered in favor 
 of the plaintiff; and so long as there is no collusion 
 between him and the plaintiff, the w^ife will be 
 bound by his acts. But his right to act for his wife 
 in this way has been questioned in cases where she 
 was insane. At common law, if a husband neg- 
 lected to prosecute his wife's rights of action, or 
 released them, his loss w^as even greater than hers, 
 for he had the immediate right to the enjoyment of 
 them, and if he allow^ed judgment to be obtained on 
 her ante-nuptial contract or tort, or on her post- 
 nuptial tort (the only causes of action on which a 
 judgment binding on her property could be ob- 
 tained), the judgment w^as against himself as well; 
 so that the control of the suit could be safely trusted 
 to his charge. But as his said control of his wife's 
 suit grow^s out of his substantial ownership of her 
 rights of action, and his equal liability on her obliga- 
 tions, it does not exist where his said rights and 
 obligations do not exist, and disappears as they are 
 removed. He could never, for example, through 
 any suit of his, estop her from claiming property in 
 
 181
 
 WOMAN UNDER THE LAW 
 
 which he had no rights by making her a co-com- 
 plainant, nor could he, by allowing a judgment to be 
 entered against them on a cause of action on which 
 she was not liable, deprive her of her inheritance. 
 He cannot control her suits respecting her equitable 
 or statutory separate estate, unless by her consent 
 and as her agent in fact; nor in such cases can he 
 admit service for her. When he is a mere nominal 
 party, he is entitled to all her defences. 
 
 Courts of equity have always recognized the 
 separate existence of w^ives, and in all suits in which 
 husband and wife are co-complainants or co- 
 defendants, if they have separate and distinct in- 
 terests, the bill or ansv/er filed by the husband for 
 both is regarded as prima facie the bill or answer 
 of the husband alone, and the wife, if she requests 
 it, is allow^ed to proceed separately. As equitable 
 separate estate is out of the control of the husband, 
 so are suits relating thereto; and the wife sues by 
 her next friend, if she does not desire to join her 
 husband, simply because the question of her liability 
 for costs might arise if she sued alone. If she does 
 sue by her husband and allows him to act for her, 
 she is bound, but she is otherwise not bound by his 
 declarations, nor are his statements evidence against 
 her. If she files her separate answer by permission 
 of court, she is bound by it ; her answer filed with- 
 out permission may be taken from the files, unless 
 the court allows it nunc pro tunc. As a general 
 rule, under the statutes she has the right to sue and 
 be sued, independently of her husband; and just so 
 far as her choses in action are made her statutory 
 separate property can she control the reduction of 
 them to possession; and just so far as his liability 
 for her torts and contracts has been removed can 
 she control suits against her. 
 
 At common law, a married woman could not 
 
 182
 
 MARRIED WOMEN 
 
 appoint an attorney at law; her ante-nuptial ap- 
 pointment was revoked by marriage ; she could not 
 appear in a suit by attorney; her plea or answer 
 filed by an attorney was worthless; a judgment en- 
 tered against her on her warrant of attorney was a 
 nullity; her agreement for alimony made by her 
 attorney was void. In equity and under statutes, 
 speaking generally, she may appoint an attorney at 
 law^ whenever she has interests separate from her 
 husband, with respect to which she needs legal as- 
 sistance and advice, or with respect to which she 
 can act by agent generally. She can appoint an at- 
 torney to take care of litigation respecting her equi- 
 table separate property. Under statutes expressly 
 authorizing her to appoint an attorney or to contract 
 generally, she can of course appoint an attorney. 
 And statutes authorizing her to sue independently 
 of her husband, or to contract with respect to her 
 property, or securing to her the separate enjoyment 
 of her property, by implication, give her the power 
 to appoint an attorney to take charge of such suit or 
 such property. It is necessary to the enjoyment of 
 rights that one should be able to prosecute and de- 
 fend them. In all cases where she can appoint an at- 
 torney, she is bound by his acts as an unmarried 
 woman w^ould be; by his laches; his withdrawal of 
 pleas; his settlement or dismissal of suit (in North 
 Carolina) ; and she is also bound to compensate 
 him. A statute, however, which gives a married 
 woman the power to appoint an attorney does not 
 of itself destroy the husband's substantial rights in 
 her choses in action. 
 
 An attorney who has acted on behzilf of a mar- 
 ried woman may look for his fees, ( 1 ) to her hus- 
 band, or (2) to her trustee or next friend, or (3) to 
 her property or herself. 
 
 Since a wife always sued and was sued jointly 
 
 183
 
 WOMAN UNDER THE LAW 
 
 with her husband at common law, and since he em- 
 ployed counsel for them both, the payment of the 
 fees naturally fell upon him. But w^hen he by his 
 conduct made it necessary for her to take proceed- 
 ings against him, the question arose whether he was 
 not liable for the exj>enses of the suit as necessaries. 
 It has been held that when a wife sues out a peace 
 w^arrant against her husband, or defends herself 
 against a similar proceeding by him, or w^hen she 
 sues for a separate maintenance, her legal expenses 
 are necessaries for which her husband is liable. So 
 her expenses in bringing or defending a divorce 
 suit are held to be necessaries in England, Georgia, 
 low^a, Kansas, and Maryland, while the contrary is 
 the rule in Alabama, Connecticut, Illinois, Indiana, 
 Kentucky, Massachusetts, New^ Hampshire, Ohio, 
 Tennessee and Vermont. Even w^here such ex- 
 penses may be necessaries they are not necessarily 
 so; there must be a reasonable ground for bringing 
 the suit, or some real defence in resisting it. Besides, 
 the courts provide for counsel fees in divorce cases 
 under their jurisdiction to aw^ard alimony. 
 
 The trustee of a married woman's separate 
 property may employ an attorney; and though him- 
 self personally bound to compensate him, he may 
 repay himself out of the estate. So the reason for 
 the existence of a next friend is that there may be a 
 person responsible for the expenses of the suit; and 
 in those cases where a married w^oman sues by next 
 friend he is liable for the counsel fees. 
 
 At common law, as a general rule, a married 
 woman could make no contract at all, and could not 
 appear by attorney in a suit, unless she were ap- 
 pointed by her husband ; and therefore her contract 
 to pay counsel fees w^as absolutely void, and she 
 could not even, according to the better settled rule, 
 ratify such a contract after the dissolution of her 
 
 184
 
 MARRIED WOMEN 
 
 marriage. But if an attorney collected money be- 
 longing to her, he could keep a reasonable amount 
 thereof as comp>ensation for his services, though he 
 could not have recovered anything in any kind of 
 suit against her. She could, however, charge her 
 equitable separate estate in equity for fees, just as 
 she could charge it for any other debt of hers, pro- 
 vided she complied with the rule prevailing in the 
 particular state as to the modes in which the charge 
 had to be made ; for example, that the contract was 
 made with express reference to her said estate or 
 was for its benefit, and provided that the property 
 sought to be charged was property over which she 
 had the power of disposition. Under a statute 
 authorizing a married woman to contract generally, 
 there is no reason why she should not contract for 
 counsel fees; and when she is authorized to con- 
 tract with respect to her property, a contract for 
 legal services respecting the same would be valid. 
 So would a similar contract be authorized by im- 
 plication by a statute securing her property to her 
 separate use and control. So by implication a stat- 
 ute authorizing her to sue and be sued alone, em- 
 powers her to employ counsel to represent her. 
 Whether when she may employ counsel she binds 
 herself personally or binds only her property, and 
 whether her obligation is to be enforced in equity 
 or at law^, are unsettled questions, contracts for 
 counsel fees being governed in this respect by the 
 same rules as other contracts. When a wife is liable 
 for family expenses, how far counsel fees are a 
 family expense must depend on the particular cir- 
 cumstances of the case. 
 
 The use of the words "trade" and "married 
 woman trader" has been vague, and it is necessary, 
 in a discussion of this subject, to bear in mind the 
 
 185
 
 WOMAN UNDER THE LAW 
 
 different elements which may be involved in the 
 capacity of a married woman to trade. 
 
 At common law, generally, a married v/oman 
 could make no contract w^hatever; all her time and 
 labor belonged to her husband, as did all the present 
 enjoyment of her property; she had, in fact, no 
 legal existence apart from her husband; therefore 
 she could not trade at all. If a female trader mar- 
 ried, the trade became her husband's, and if she 
 had been trading as partner, the partnership was 
 dissolved by her marriage. 
 
 As a married woman could not contract at all 
 by the common law, she could not enter into any 
 kind of engagement or employment on her own ac- 
 count, but all her time, services, wages and earn- 
 ings of every kind belonged to her husband. Still 
 her husband could agree that she should have her 
 earnings, just as he could invest her with any prop- 
 erty of his, and his agreement would be enforced in 
 equity; his agreement, however, gave her no per- 
 sonal capacity, but only the right to collect and 
 keep the wages and rewards of her labors. So by 
 statute, in most states, the w^ife's earnings are se- 
 cured to her separate use. These statutes were 
 passed to protect wives from shiftless, improvident 
 and dissipated husbands, and were in form the 
 earliest of the statutes relating to the trade of mar- 
 ried women. 
 
 Although at common law all the interest, prof- 
 its, rents and increase of a married woman's prop- 
 erty vested in the husband just as the property itself 
 did, except that the rents and profits of real estate 
 vested in him as personalty, she had her separate 
 estate first in equity and then by statute, and the 
 increase of such estate was also separate property; 
 and therefore the products of all investments or 
 uses of her separate property were her separate 
 
 186
 
 MARRIED WOMEN 
 
 property, though such products were partly due to 
 her efforts, and partly to the labor, skill and knowl- 
 edge of her husband. In a sense, therefore, she 
 could trade with her separate property. 
 
 Although when a married woman's earnings 
 or property are secured to her separate use, as above 
 stated, the profits of her business or trade may be 
 her separate property also, — her personal incapacity 
 to enter into trade is not necessarily removed; for 
 equity recognizes her capacities only in connection 
 with her property, and mere property acts do not 
 affect personal status. So that to trade in the wider 
 sense, a married w^oman must either have the ca- 
 pacities of a feme sole or be expressly authorized to 
 enter into business. 
 
 Although the difference betw^een earnings and 
 increase of property is clear, and for this reason 
 married women's separate property acts do not 
 destroy a husband's rights to his wife's personal ser- 
 vices, it is very hard to draw any line between earn- 
 ings and the profits of trade. The terms used in 
 the books dealing with the subject of married 
 women traders are not sharply defined, but a few 
 definitions may be given. 
 
 Earnings means v/hat is earned, gained or 
 merited by labor, services or performances; wages 
 or reward; and the earnings secured to a married 
 woman by a statute are not confined to the results 
 of manual labor, — to wages for washing or sewing, 
 but include the products of her trade also, if it is 
 carried on with her separate property as capital; 
 and the stock in trade of a married woman owned 
 at the time of her marriage, or afterwards bought 
 with her earnings, is included in the term "earn- 
 ings." 
 
 Trade or business means an employment to the 
 carrying on of which the party devotes a consider- 
 
 187
 
 WOMAN UNDER THE LAW 
 
 able portion of her time, skill and means, a business 
 that is continuing in its nature and embraces many 
 transactions ; engaging in trade and business means 
 not only trading in a commercial sense, but 
 also being engaged in other employments which 
 require time, labor and skill. Trading means engag- 
 ing in a business pursuit, mechanical, manufacturing 
 or commercial. Thus, though a single transaction 
 may be a business one, it does not make the party 
 a trader; horse dealing may be a business, but 
 a woman who buys or sells a single horse is not 
 necessarily in that business; so farming may be a 
 business, but employing a man to work on one's 
 farm does not make one a farmer by trade ; renting 
 a house may be a business transaction and for the 
 purpose of a business, but a lease of rooms is not 
 necessarily a contract by a trader; so a married 
 woman's receipt and disbursement of her rents and 
 profits, though done in a business way does not con- 
 stitute her a trader; nor is she a trader when she is 
 not acting generally with the public, but is simply 
 taking care of her ow^n property, or collecting or 
 investing her income. When she may trade she is 
 not confined to any particular trade; she may not 
 only engage in washing, sewing, dressmaking, mil- 
 linery, in keeping a dairy, a boarding house, a gro- 
 cery or provision store and in other pursuits spe- 
 cially adapted to her sex, but she may be a farmer, 
 a miller, an army sutler, a saloon keeper or tavern 
 keeper, a clothier, an iron-monger, she may work 
 a mine or quarry, or may go into the lumber busi- 
 ness ; though if her trade is unsuited to her, this is a 
 fact to be considered, if her husband's creditors are 
 trying to show that the business is really his. So 
 she may engage in the professions — may devote 
 her talents to literature, acting, singing and in fact^ 
 
 188
 
 MARRIED WOMEN 
 
 under a general power to trade, may follow any 
 legitimate calling. 
 
 The trade of a married woman is usually 
 spoken of as her separate trade; the w^ord "sepa- 
 rate" refers rather to her status than to the mode in 
 which she shall trade, and it does not mean that 
 she shall trade alone, or prevent her living with her 
 husband while trading, or allowing him to join in 
 the business. In Massachusetts and Indiana it has, 
 how^ever, been held that she must keep her business 
 separate from her husband, and that their joint 
 earnings are his property. The effect of the ming- 
 ling of the wife's with the husband's property has 
 already been discussed. 
 
 When a married woman's husband is civilly 
 dead, or has finally abandoned her, she has by the 
 common law the capacities of a feme sole, and may 
 trade as such. In some states there are statutes to 
 the same efiFect. How far her husband's absence 
 enables her to trade in his place has already been dis- 
 cussed. 
 
 By the custom of London a married woman 
 who carried on a trade separate and apart from her 
 husband had, to the extent of such trade, all the 
 capacities of a feme sole. Such custom has never 
 existed in the United States, except to some extent 
 in South Carolina. The law^ recognized this cus- 
 tom not for the sake of wives, but to encourage 
 trade and commerce, and therefore the custom did 
 not apply, for example, to farming. When trading 
 under such a custom the wife could be a bankrupt; 
 but her suits were generally conducted jointly with 
 her husband for conformity. 
 
 In those States where a married w^oman is a 
 feme sole as to her equitable separate estate, she 
 may use the same in trade, and the profits of such 
 trade are equitable separate property likew^ise; but 
 
 189
 
 WOMAN UNDER THE LAW 
 
 in such trade she has no personal capacities; equity 
 recognizes her separate existence only with respect 
 to her property, and her contracts made in the 
 course of her trade can be collected only if they 
 have been properly charged on said property. 
 
 A husband cannot, by his consent, change the 
 personal status of his wife, or enable her to trade 
 with the capacities, rights and liabilities of a feme 
 sole; but he may allow her to engage as his agent in 
 business and give her the profits, or he may agree 
 before or after marriage that she shall keep her earn- 
 ings or carry on business for her ow^n use, and give 
 her, if he choose, the necessary capital to start with. 
 Any such gift of earnings, profits or property to her 
 is good agciinst himself, and his heirs, and voluntary 
 assigns, but not as against his creditors, unless 
 for valuable consideration. When a wife thus trades 
 under a settlement from her husband, she trades in 
 equity as w^ith equitable separate property; the busi- 
 ness, profits, etc., are her husband's absolutely at 
 law. But if the business is really hers and not car- 
 ried on by her as his agent, he is not bound for the 
 debts. If his consent to her carrying on business is 
 by mere oral assent and without consideration, 
 though he cannot ask back profits already made and 
 collected by her, he can revoke his consent, and 
 claim the business as his own. In all cases where 
 she carries on business by his mere consent, the 
 business is his, and he is liable for its debts, and may 
 claim its profits. Whether the business is his or 
 hers is a question of fact. Her agency for him may 
 be proved directly or indirectly. But if a w^ife has 
 engaged in business without authority of law^, and 
 w^ithout her husband's consent, he cannot be held 
 liable for its debts, nor can she on her mere personal 
 contracts ; so if all the credit is given to her, her hus- 
 band is not liable, w^hether she or her property is 
 
 190
 
 MARRIED WOMEN 
 
 liable or not. Under the statutes usually, the hus- 
 band's consent is not necessary to enable a wife to 
 trade ; nor does his mere consent involve him in the 
 liabilities of the business. 
 
 Married women's separate property acts do 
 not, by implication, destroy the husband's common 
 law right to his wife's earnings, but they do usually, 
 expressly or by implication, secure to the wife the 
 natural increase of her property, and since such in- 
 crease belongs to her, even when largely due to her 
 husband's efforts, there seems to be no reason why 
 her own services to it, though these belonged to her 
 husband, should injuriously affect her rights. When 
 a married woman has no powers by statute inde- 
 pendent of her property, her dealings with her stat- 
 utory separate property in the way of trade must 
 be subject to limitations of the same character as 
 those which control her trading with her equitable 
 separate estate. She cannot, for example, under 
 such a statute, carry on a business on her personal 
 credit. Her right to manage her separate estate and 
 her right to trade are quite distinct. A contract for 
 furniture to be used in a boarding house w^hich is her 
 separate property, or for horses for her livery stable, 
 may not be valid as the contracts of a trader, but 
 valid as contracts with relation to her separate 
 property. 
 
 A statute securing to a married w^oman her 
 earnings, or the products of her skill and industry, 
 by implication enables her to earn money and to 
 trade, just as statutes securing to married women 
 property acquired by purchase enable them to pur- 
 chase on credit; thus alone are such statutes given 
 a reasonable meaning. A statute enabling married 
 women to trade, unless it contains restricting provis- 
 ions, enables them to trade just as if they v/ere 
 sole, to use any of the usual means of trade, and to 
 
 191
 
 WOMAN UNDER THE LAW 
 
 engage in any legitimate calling. A married woman 
 may also trade under statutes giving her the capaci- 
 ties of a feme sole as to contracts. 
 
 Under a statute enabling married women to 
 trade w^ith a capital of one thousand dollars or less, 
 and creating a special remedy against her property 
 for her trade debts, it was held that she had no 
 powers not expressly given; that the naming of 
 one mode of trade was a negation of all other 
 modes; and that she could not trade as a partner 
 because not expressly authorized. In many states 
 the statutes require a v^ife who wishes to engage in 
 trade to comply ^^^ith certain prerequisites, such as 
 making a declaration of record, obtaining a license, 
 or decree of court; and such requirements must, it 
 seems, be complied w^ith to give her any new capac- 
 ity. But a statute providing that her husband shall 
 not manage her business has for its sole object the 
 protection of the husband's creditors, and when no 
 question in which they are concerned is involved 
 she has the same capacities to trade with as without 
 her husband; and the same would seem to apply 
 to a statute requiring her to trade in her own name. 
 When she can be declared a trader only w^hen her 
 husband cannot or refuses to support her, his mere 
 temporary sickness will not suffice. Nor will a 
 court of equity with a discretion decree her a trader 
 when she would thus be enabled to commit a fraud. 
 When a statute requires "a married woman doing 
 business on her separate account" to file a certifi- 
 cate, this does not apply to married women making 
 investments of their separate property. A married 
 woman need file no inventory of her business unless 
 this is required by statute; nor need she have sepa- 
 rate property to start with. 
 
 The status, rights and liabilities of a married 
 woman trader depend very largely on the source of 
 
 192
 
 MARRIED WOMEN 
 
 her capacity to trade. Generally speaking, when 
 she can trade only by virtue of her ownership of 
 equitable or statutory separate estate, she cannot 
 trade on her personal credit or act as a feme sole, 
 but can only deal with the property so that the prof- 
 its will enure to her own benefit, and can only 
 render it liable for her debts by charging it, contract- 
 ing with reference to it, etc., her contracts being 
 valid not on account of her being a trader, but be- 
 cause made in such a way or for such a purpose as 
 the law allows. So when she trades simply as her 
 husband's agent, though she binds him she does not 
 bind herself personally — she may have the profits 
 if he chooses to let her keep them, but he and the 
 business are liable for the debt contracted by her on 
 its behalf. When, however, she may trade per- 
 sonally, by virtue of her husband's abandonment, 
 by custom, or by statute, she can trade just as if she 
 were unmarried, unless, of course, the statute limits 
 her capacity. In such case she, for the purposes 
 connected w^ith her business, has the status of a 
 feme sole, the fullest rights to the enjoyment of the 
 profits of the business, and the fullest liabilities for 
 its debts. 
 
 Most of the statutes as to married women 
 traders expressly provide that they shall trade as if 
 sole, and under such statutes no special questions 
 seem to have arisen; the main questions are as to 
 the implied powers of married women traders. In 
 one case it was held that the naming of certain 
 powers of trade was a negation of all other powers ; 
 but the weight of authority seems to be to the con- 
 trary. 
 
 Under statutes enabling a married w^oman to 
 trade and not limiting her capacities, she may trade 
 precisely as if unmarried; she is as to her business, 
 a feme sole, and may do all things incidental to trad- 
 
 193
 
 WOMAN UNDER THE LAW 
 
 ing in general, and all things usual and proper in the 
 particular trade in which she is engaged. The ob- 
 ject of these statutes is not only to do justice to 
 wives, but also to encourage trade. Thus she may 
 engage in any legitimate calling. She may conduct 
 the business personally or by agent; she may have 
 her salesmen and clerks; she may be a partner, 
 silent or active; and she may, unless this is prohib- 
 ited by statute, have her husband as her agent, or 
 be a partner with him ; though this is in some states 
 denied. She need not, unless the statute so pro- 
 vides, have separate property to begin with; she 
 may start out on credit, or use property given her 
 by her husband, though in the latter case his credit- 
 ors may have rights. The capital and stock in trade 
 of her business, as w^ell as the profits, are entirely 
 hers; for instance, the bills due her as a boarding 
 house keeper; and such property, though in the 
 possession of her and her husband, is in her pos- 
 session, the possession relating to the title. She may 
 on credit purchase goods for her trade; or buy land 
 or seed for farming purposes; or rent a store; or 
 contract for her services; or contract for working a 
 quarry — for the labor and mules; she may transfer 
 a note received in the course of trade ; she may even 
 sell out her business ; and agree not to use the same 
 name again. She is personally liable on all con- 
 tracts w^hich she executes in the conduct of her busi- 
 ness, even as endorser of a note; she is liable for the 
 frauds of her employes, and is estopped as if sole 
 from denying their right to represent her; she is 
 liable for goods consigned to her. She may sue and 
 be sued alone and at law, except, perhaps, as to 
 suits with her husband; and a general judgment 
 may be obtained against her. The question whether 
 a particular transaction of hers was in the course 
 of her business is one of fact. In suing, she must 
 
 194
 
 MARRIED WOMEN 
 
 allege and prove this; and when she is sued, the 
 plaintiff must allege the grounds of the liability, 
 must allege and prove affirmatively that she was en- 
 gaged in business, and that the particular transac- 
 tion was connected with such business. She may 
 make a deed for the benefit of creditors, and take 
 the benefit of the insolvent laws. 
 
 The business creditors of a married woman 
 trader have, under the statutes generally, the same 
 rights as if she were sole; they may sue her alone, 
 and obtain a general judgment against her. If she 
 is a partner, all the partners must be joined. The 
 husband cannot set up against them any rights that 
 he might have against her in property he has 
 suffered her to use in the business. If she is not 
 trading with a personal capacity, but simply by 
 virtue of her ownership of separate property, such 
 creditors have generally no rights in personam 
 against her. In some states her creditors are given 
 special remedies. When she acts simply as her 
 husband's agent, her creditors are really his credit- 
 ors, and the business is really his business. Her 
 creditors other than those of her business can pro- 
 ceed against her business only as they could against 
 her other separate property. 
 
 If the wife labors in her husband's business, or 
 allows her property to be used therein, the profits 
 are nevertheless subject to the rights of his credit- 
 ors; but she is not personally liable to the creditors 
 of the business if she has acted only as his agent, 
 and has no capacity to contract. His creditors have 
 the right to go against her separate business for any 
 sums put into it by her husband in fraud of their 
 rights; but it is doubtful w^hether this applies to a 
 bona fide gift by him to her of his services ; in some 
 cases an apportionment has been made, and this 
 would of course be done if he and she were partners. 
 
 195
 
 WOMAN UNDER THE LAW 
 
 His creditors have no rights in the profits of her 
 separate business, in cases where he has provided 
 neither property nor services. Still, they have the 
 right to treat the business as his when she has not 
 complied with the requirements as to filing a dec- 
 laration of record, etc. When she cannot be his 
 partner she incurs no liability by holding herself out 
 as such. 
 
 When a man married a woman engaged in 
 trade, he at common law took the business w^ith its 
 assets and liabilities ; now he is liable only where he 
 is still liable for her ante-nuptial debts, and has the 
 right to the business only when such property is 
 secured to her neither by settlement nor by statute. 
 So at common law, all the profits of her business 
 during coverture vested with her other earnings and 
 the other increase of her property in him; but this, 
 too, is generally changed. It is his business and he 
 is fully liable, and need not give her any part of the 
 profits if she is trading simply by his consent and 
 has no other authority ; she may even be a partner in 
 his place. When all the credit is given to her he is 
 not liable. Nor is he liable v/hen she is trading in- 
 dependently of him under the statutes, unless he is 
 a partner, or actually joins in the transaction. 
 
 It has been held that a married woman trading 
 in equity with her equitable separate property may 
 enter into partnership; but this statement must be 
 taken with limitations. For the normal contract of 
 partnership is a personal contract, involving a per- 
 sonal capacity, which a married woman does not 
 have either in equity or under mere separate prop- 
 erty acts. And therefore it is settled that statutes 
 securing to married women their property with 
 rents, profits, increase, etc., thereof, although they 
 enable her to trade in a limited way, do not enable 
 her to enter into partnership. At common law, 
 
 195
 
 MARRIED WOMEN 
 
 when a female partner married, the partnership was 
 dissolved, and now she cannot be a partner if she 
 has no capacity to trade personally, or if she is ex- 
 pressly prohibited by the statute enabling her to 
 trade, or so far as she is partially prohibited, as she 
 is in some states. But as she has, under the statutes 
 giving her the capacity to trade generally, the per- 
 sonal capacity to trade as if sole, and the power to 
 pursue all the usual methods of trade, she may, un- 
 der such acts, trade in partnership; she may even be 
 held responsible as a secret partner. Still in a few 
 cases, and on different grounds, this has been de- 
 nied. So, as she is a feme sole in her trade, and may 
 employ an agent, general or special, and may em- 
 ploy her husband as such, there seems to be no 
 reason why she should not be able to form a part- 
 nership with her husband; and many cases hold, 
 while others assume, that she may. But this is also 
 strenuously denied, on the ground that even where 
 a married woman may contract, she cannot, without 
 express authority, contract with her husband, and 
 that the particular statute enables her to trade on her 
 separate account. To this it is replied, that if she 
 may employ her husband as her agent, as all admit 
 she can, it is not consistent to say that she cannot 
 contract with him; and that the word "separate" in 
 the statute does not refer to the mode in which a 
 married woman shall trade, but to her status as in- 
 dependent of her husband's marital control and 
 marriage rights. In such cases, as she cannot be a 
 partner or be liable on a partnership note signed by 
 one of the other partners, she can, nevertheless, be 
 liable for her individual acts; nor does she, in such 
 cases, lose her property put into a firm business. 
 Though she may not join a firm of which her hus- 
 band is a member, she may, after his retirement, 
 go in, and on a new consideration become liable for 
 
 197
 
 WOMAN UNDER THE LAW 
 
 the pre-existing partnership debts. So, although 
 she cannot be a partner, she may jointly lease and 
 share the profits of joint property, and be bound by 
 her husband's acts as her agent with respect thereto. 
 If the husband has furnished part of her capital, her 
 business may pro tanto be liable for his debts, and 
 the courts have sometimes, without speaking of 
 husband and wife as partners, ordered an apportion- 
 ment of the profits of a business jointly carried on 
 by them. 
 
 Very nearly the same questions arise in con- 
 sidering a married woman's capacity to be an incor- 
 porator as those which are involved in her right to 
 be a partner. Incorporators enter into a mutual and 
 personal contract, which is concluded by the act of 
 incorporation; and therefore, without personal 
 capacity to contract, a married woman could 
 not be an incorporator. But as business is very 
 commonly carried on by corporations, a mar- 
 ried w^oman w^ith capacity to trade would, it 
 seems, have capacity to be an incorporator. The 
 fact that the corporation laws provide that "any 
 person" may be an incorporator w^ould not 
 affect a married woman under incapacity, by 
 virtue of a rule already discussed. But a married 
 woman may be a stockholder, holding her stock as 
 any other chose in action ; and it has been held that 
 when she can hold stock as if sole, she is liable, as 
 any other stockholder, for example, for assess- 
 ments. 
 
 A married woman's subscription to stock is an 
 executory agreement, and, as such, void at common 
 law ; but a note given for stock has been held bene- 
 ficial to her separate estate, and therefore a charge 
 thereupon, and by statute, in some states, she may 
 be a subscriber. 
 
 Whether married women may act in represen- 
 
 198
 
 MARRIED WOMEN 
 
 tative capacities, whether they may be agents, trus- 
 tees, administrators, executors, guardians, etc., and 
 how far their acts in such capacities have the same 
 effect as the acts of persons sui juris in similar 
 capacities, are questions which are nowhere fully 
 discussed; and much confusion is likely to result in 
 such a discussion, unless the different points of view 
 from which the subject may be approached be borne 
 in mind. For example, a married woman may be 
 an agent, in the sense that she may, as if she were 
 sole, bind a party who has authorized her to act for 
 him, but not necessarily at the same time, in the 
 sense that she may recover compensation for her 
 services, or be liable for money received to her prin- 
 cipal's use, or be personally liable to third parties 
 with w^hom she has dealt in her own name. So she 
 may be a trustee, in the sense that her husband can- 
 not claim substantial rights in property of which 
 she holds only the bare legal title, and she may 
 dispose of such property in accordance with the 
 powers vested in her by the trust ; and yet she would 
 not be liable personally for work done at her request, 
 as a person sui juris would be, or be able to bind 
 herself personally to execute the power of her trust. 
 And so she may be an administratrix, in the sense 
 that once appointed she may act as such, and 
 yet her appointment may depend on the consent 
 of her husband. So as to guardianships. It thus 
 plainly appears that a married woman who may 
 act in a representative capacity does not, while 
 so acting, have the same rights and liabilities as a 
 feme sole and that the following questions may 
 arise, namely: (1 ) How far do her conjugal obli- 
 gations conflict with her right to act in a represen- 
 tative capacity — how far has her husband the right 
 to control her in this respect, (2) How far do her 
 personal disabilities — her coverture, affect her 
 
 199
 
 WOMAN UNDER THE LAW 
 
 capacity to so act, (3) How far do her acts in a 
 representative capacity affect her personally, (4) 
 Or her husband, (5) Or her principal or estate, 
 (6) Or the third parties with whom she deals. 
 
 With regard to the questions already stated, 
 certain general rules may be formulated, to wit. 
 
 ( 1 ) As to Husband's Consent. — At common 
 law, a husband not only took his wife with all her 
 accrued obligations, but he was also jointly liable 
 w^ith her for her torts, whether committed with his 
 consent or not, and w^as therefore liable for all her 
 breaches of trust, devastavits, etc. ; so that for his 
 own protection he had the right to say whether she 
 should act in a representative capacity, and sub- 
 ject him to such additional risks. But his consent 
 was necessary only so far as his liabilities w^ere con- 
 cerned, — he could not, for example, object to her 
 executing a power to convey property, and for this 
 reason, it would seem that his right to object at all 
 is removed by statutes destroying his marital liabil- 
 ity for the acts of his wife. 
 
 (2) As to Wife's Coverture. — The fact that 
 a wife has no personal capacities, but is under the 
 disabilities of coverture, does not prevent her acting 
 in a representative capacity; she may be an agent, 
 administratrix or executrix, trustee, or guardian; it 
 only affects her personal rights and obligations 
 while acting in such capacities. A married woman 
 is not in this respect like an idiot; she has as much 
 discretion after as before marriage. 
 
 (3) As to Personal Rights and Obligations 
 of Wife. — The fact that a married w^oman may act 
 in a representative capacity, and is so acting, does 
 not enlarge her personal capacities, or remove, as 
 far as she is herself concerned, her marriage disa- 
 bilities, or affect her personal status. Her contracts, 
 though made in her own name, do not bind her per- 
 
 200
 
 MARRIED WOMEN 
 
 sonally, unless she has the capacity to contract per- 
 sonally; so she may be unable to stipulate for any 
 compensation. For her torts she is, of course, per- 
 sonally liable, for a married woman is not, even at 
 common law, under disability to commit wrongs. 
 
 (4) As to Her Husband's Rights and Obliga- 
 tions. — A husband has no property or estate in 
 funds held by a married woman in a representative 
 capacity. He generally sues and is sued with her 
 for conformity, and on contracts on which if sole 
 she could have declared in her ow^n name, he could 
 at common law sue alone. For all his devastavits 
 and acts in the nature of tort he is jointly liable w^ith 
 her, in accordance with the rules already discussed 
 relating to a husband's liability for his wife's torts. 
 He is liable for her contracts only if she acted as his 
 agent. He must account for any money which 
 passes into his possession. 
 
 (5) As to the Estate or Principal. — The es- 
 tate or person whom the wife represents is bound, 
 and receives the benefit of her acts just as if she 
 were sole; her conveyance in accordance with her 
 powers, or her receipt for funds, is binding as if by 
 him. 
 
 (6) As to Third Parties. — The rights and 
 obligations of the persons with whom she deals as 
 representative are the same, as far as the person or 
 estate which she represents is concerned, as if she 
 were sole; but as far as she herself is concerned, 
 they are simply such as may exist against any mar- 
 ried woman. 
 
 201
 
 CHAPTER VII. 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 The separate property of a married woman 
 is that of which she has the exclusive control, inde- 
 pendent of her husband, and of which she may- 
 dispose as she pleases. 
 
 The separate property of married women may 
 be classified into the equitable and the statutory; 
 the former being that recognized by the courts of 
 equity irrespective of statutes ; the latter that recog- 
 nized and created by those statutes which limit the 
 common law rights of the husband in his wife's 
 property, and which enlarge the rights of the wife. 
 The two classes of property may exist together. 
 
 The Alabama Code establishes an entirely 
 new system of laws relating to the property of mar- 
 ried v/omen, and abrogates the distinction betw^een 
 the equitable and statutory separate estates, except 
 in cases where the property is conveyed to an active 
 trustee, and, therefore, with that exception, equit- 
 able separate estates are now statutory in Alabama. 
 
 The whole doctrine of the separate estate of a 
 married woman is a creature of equity, and sets at 
 naught all or most of the principles of the common 
 law touching the marital relation, and also touching 
 property generally. 
 
 Thus, a v^ife may be enabled to dispose of her 
 separate estate as freely, and with less solemnity 
 than a feme sole, to charge it merely by implication, 
 as a feme sole cannot do, and may also be restrained 
 from conveying or charging it at all, a restraint ad- 
 
 202
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 verse to one of the most settled doctrines of the 
 general law of property. In respect to the power of 
 alienation of a wife's separate estate, a distinction 
 is made between real and personal property. As to 
 personal property, the wife may dispose of it ab- 
 solutely at her pleasure, by deed or will, as if she 
 were a feme sole; unless the instrument which cre- 
 ates the estate and vests it in her shall impose 
 restrictions, and then these restrictions will consti- 
 tute the law of the case. In respect to real property 
 her power of disposition is more circumscribed. If 
 she is not in terms allowed, by the instrument which 
 clothes her with the separate estate, to alien it in 
 some designated way, she can do so only by will 
 duly executed, or by deed executed with the for- 
 malities prescribed for married women. And it 
 seems that, though permitted to alien otherwise 
 than in pursuance of the statute, she is not thereby 
 precluded from adopting the statutory mode. The 
 rents and profits of her separate real estate consti- 
 tute personalty, and may be disposed of according- 
 ly, unless invested in lands. Where the wife has 
 the power of disposition, she may bestow her sepa- 
 rate property as well on her husband as on a stran- 
 ger, and not by giving it to a third person to give to 
 him, but by conveyance directly to himself (unless 
 where she conveys under the statute). But a court 
 of equity w^ill not give sanction or effect to a con- 
 veyance to the husband without first subjecting the 
 w^ife to a privy examination, and adopting such 
 other precaution as shall seem needful to ascertain 
 her freedom of action. 
 
 Although the subject of "Pin Money" has been 
 briefly commented upon in the chapter on Hus- 
 band and Wife, it may be said by way of amplifica- 
 tion, that "Pin Money" is a provision made by the 
 husband, either in pursuance of a marriage contract 
 
 203
 
 WOMAN UNDER THE LAW 
 
 or by a gift, for the purpose of supplying the wife 
 with articles of dress, and with pocket money, in 
 order to prevent the annoyance of a constant re- 
 course to him with petty demands for personal ex- 
 penditures. It may consist of gifts of money made 
 from time to time, or of a specific periodical allow- 
 ance, or of the savings and profits accruing from her 
 efficient domestic management. It must not be to 
 the prejudice of the husband's creditors; and the 
 wife acquires an unimpeachable right of property 
 therein subject to tw^o qualifications. First, it is 
 bestowed for the specific purpose of decking her 
 person for the credit of the common household, and 
 a husband has a certain interest in it as well as the 
 wife, and may demand, or constrain, the expendi- 
 ture to be made accordingly; second, even though 
 stipulated for by a marriage settlement, she cannot 
 call upon her husband to pay any arrears if he has 
 meanwhile provided for her current w^ants; nor in 
 any event beyond the arrears of a single year. Nor, 
 it seems, can her personal representative demand 
 any arrears at all, for the money is designed to dress 
 and adorn the wife during the year and not for the 
 accumulation of the fund. 
 
 An equitable separate estate may be created in 
 a married woman by a written instrument, or even 
 orally in the case of personalty; it may be by deed 
 or by will, in trust or direct, ante-nuptial or post- 
 nuptial. No trustee is necessary; equity never 
 suffers a trust to fail for want of a trustee. It has 
 even been held unnecessary to make the settlement 
 in the form of a trust. The husband will be deemed 
 to hold as trustee for his wife and to be accountable 
 to her for the rents and profits as any other trustee 
 would be. 
 
 Technical w^ords are not required to create an 
 equitable separate estate. It is necessary only that 
 
 204
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 the terms of the settlement show that the settlor 
 intended the husband should have no marital rights 
 in the property in question. If no such intent ap- 
 pears, there is created but an ordinary trust for a 
 married woman. The release of her dower is a 
 good consideration for a conveyance to her separate 
 use. 
 
 The following phrases by themselves have} 
 been held to have the effect, in a settlement on a 
 married woman, of excluding the husband's rights : 
 "For her sole and separate use." "For her own sole 
 use and benefit." "For her use and benefit." "For 
 her sole use," "As her separate estate." "For her 
 full and sole use and benefit." "Only as and for 
 her own separate estate, free from the control of 
 her husband." "For her sole use and benefit." "To 
 her exclusive use, benefit and behoof." "To her 
 sole use, benefit and behoof." "For her exclu- 
 sively." "For her exclusive use and benefit." "For 
 her own use and at her own disposal." "For her 
 sole and absolute use." "To be hers and hers only." 
 "For her ow^n use and benefit independent of any 
 other person." "For her without any hindrance or 
 molestation whatever." "For her use independent 
 of any husband." "Not subject to the control of her 
 husband." "Not to be sold, bartered or traded by 
 the husband." "For her livelihood." "For her sole 
 and exclusive use." 
 
 The following phrases by themselves have 
 been held not to have the effect in a settlement on 
 a married woman, of excluding the husband's 
 rights: "To A's wife." "In trust for her." "For 
 her proper use." "To her and her children." "For 
 her own use." "And enjoy as she sees fit." "For 
 her use and benefit." "For the joint use of herself 
 and husband." "For her own use, benefit and be- 
 hoof," and "In her own right." 
 
 205
 
 WOMAN UNDER THE LAW 
 
 Where the settlement proceeds from the hus- 
 band it is generally to be construed as operating to 
 her separate use, though no such words are used as 
 would be necessary to create a separate estate in a 
 conveyance by a stranger; otherwise the convey- 
 ance will be without effect. The doctrine that a gift 
 to the wife is a gift to the husband cannot apply 
 where the husband himself makes a gift or grant 
 to the wife, which surely cannot be taken as a gift or 
 grant to himself. And where the husband himself 
 makes a gift or grant to the wife, the intention to 
 relinquish his ow^n rights in favor of the wife, and 
 thus to give her a separate property or interest, is 
 necessarily and most clearly and unequivocally 
 manifested and declared. A promissory note of a 
 third person, given by the husband to the wife dur- 
 ing coverture, becomes a part of her equitable, and 
 not her statutory estate, and any conveyance of 
 property by him to her directly by coverture except 
 by compensation or substitution for other property 
 which belongs to her statutory estate, creates in her 
 an equitable estate. Where a married woman claims 
 her earnings as her equitable separate estate, by 
 way of gift from her husband, it w^ill not be sus- 
 tained, unless it is made clear that the husband in- 
 tended to divest himself of all interest in such earn- 
 ings, and to set them apart to the v/ife. 
 
 The intention is to be gathered from the whole 
 instrument, and in ascertaining it, a liberal construc- 
 tion is to be adopted; and the court is not confined 
 to the deed itself, but may resort to the marriage 
 contract, if there is one. For instance, in a settle- 
 ment of property by a husband on his wife, free 
 from all his liabilities, an exception of such incum- 
 brance as the two together shall request the trustee 
 to make is not repugnant to the grant, but is merely 
 a qualification thereof. 
 
 206
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 A recital in a deed that it is the separate prop- 
 erty of the wife, removes any presumption that it 
 is community property, and vests the title according 
 to the "^^^rms of the deed. 
 
 A verbal ante-nuptial contract by a womaji 
 that she shall own and control as separate estate, 
 the property she then has, w^ill be valid, and though 
 her husband contributes his services as carpenter 
 and builder in erecting a house upon land purchased 
 by her, it cannot be subjected to his debts. 
 
 If, in a sealed instrument, the husband cic- 
 knowledges the receipt of money as his wife's share 
 of her parent's estate and binds himself to return 
 it to her when she so desires, it shows a sufficient 
 intent to create a separate estate in the wife, and 
 the marital rights of the husband do not attach. 
 Where she is dissatisfied w^ith his investment of her 
 money in land, and he promises to pay her the 
 value of the property, her executors may claim the 
 value of the same against his estate on his failure to 
 do so. 
 
 Where a married woman mingles with the 
 profits of a boarding house run by her, a monthly 
 allowance from her husband, and it is not apparent 
 whether the furniture of the house is purchased 
 with her money or that furnished by the husband, it 
 will be deemed to be her separate property. A court 
 of equity can settle on her her share in the per- 
 sonalty of her father's estate, in the hands of an 
 administrator, and the creditors of her insolvent 
 husband cannot have the same applied to the pay- 
 ment of their claims. 
 
 Where the plaintiflF's husband drove a number 
 of cows at night from her premises and the next day 
 they were found in defendant's possession, he claim- 
 ing to have purchased them from her husband and 
 refusing to return them, and the evidence showed 
 
 207
 
 WOMAN UNDER THE LAW 
 
 that the plaintiff had purchased the cows with her 
 own funds, that feed bought for them on credit was 
 charged to her, that she had supported the family, 
 and that the ow^ner of the premises she occupied 
 had given her permission to live there, it was suffi- 
 cient to sustain the finding of a referee, in an action 
 of trover for the cows, that they were hers. 
 
 If a husband allows his wife, during his life- 
 time, to hold a note and use the proceeds as her own 
 property, it must be considered to have been her 
 separate estate. And if he recognizes a trust, made 
 for her benefit by an investment of her share in an 
 estate during his absence, it will be considered her 
 sepan-ate estate. 
 
 But where, by an ante-nuptial parol contract, 
 he agrees, in consideration of the marriage, that she 
 shall hold all her property then owned or thereafter 
 acquired, as her separate estate, but vesting in her 
 no power of disposition, she takes from him the use 
 and control thereof during life, but at her death 
 bank stock owned by her goes to him. 
 
 A wife cannot claim as her separate estate 
 property of her husband on which she has erected 
 a dwelling, under an agreement w^ith him for its con- 
 veyance to her, so as to exclude the claims of her 
 husband's creditors; nor is alimony awarded to a 
 wife by the decree of divorce her separate estate. 
 Nor lands, in the absence of recitals in the deed suffi- 
 cient to create a separate estate, conveyed to the 
 wife by the husband with the intent to shield it from 
 his creditors. 
 
 An ante-nuptial contract entered into in 
 France, excluding property there owned by the 
 wife from the community property, does not, in the 
 absence of an agreement that the real estate of the 
 wife shall be her sole estate free from the control of 
 
 208
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 the husband, secure to the wife as separate estate, 
 real estate owned by her at that time in Missouri. 
 
 It has been held in Pennsylvania that where a 
 woman, at the date of a will devising property to 
 her, is neither married nor contemplating marriage, 
 she will not take a separate estate therein, although 
 she was married at the death of the testator, and the 
 devise vests in her absolutely. 
 
 And also that a wife cannot recover against 
 the execution creditors of her husband, where the 
 property seized was in possession of the husband, 
 unless she shows that the property was paid for out 
 of her separate estate. 
 
 The presumption that property bought by a 
 w^ife with the money of her husband was intended 
 as a settlement for her, may be rebutted by proof 
 that it was understood between them that the prop- 
 erty should be his, or that she took the title thereof 
 without his knowledge or consent. 
 
 Where a wife owned lands lying in another 
 state, never during her lifetime reduced into posses- 
 sion by the husband, the court of Vermont treated 
 moneys received for rent of the lands as assets of 
 her estate, without requiring proof that she might 
 have held the income thereof as her own, by the 
 laws of the State wherein the land lay. 
 
 In a few^ states it is held that a married vv^oman 
 has no power over her separate estate but such as is 
 given by the instrument creating it; it was held in 
 Rhode Island that a married wroman had no power 
 to charge her separate estate unless it w^as given her 
 in the instrument creating the trust. But in a later 
 case the court said that without words in the instru- 
 ment restraining her it is not to be doubted that the 
 equitable estate of a married woman, in real prop- 
 erty settled to her sole and separate use, is as alien- 
 able by her — she and her husband joining in a deed, 
 
 209
 
 WOMAN UNDER THE LAW 
 
 executed in solemn form under the statute — as her 
 legal estate in real property; but the English rule 
 and the one adopted in the majority of the states is, 
 that, (a) as to personal property or the produce of 
 lands, she may dispose of it freely, by will or other- 
 wise, precisely as if she were feme sole, save only 
 when it is otherwise provided by the instrument 
 whence she derives the estate; but, (b) as to real 
 property, a more rigorous doctrine prevails. If not 
 expressly allowed to dispose of it in some designated 
 way, she can do so only by will, executed as wills of 
 land are required to be executed, or by deed of con- 
 veyance, executed with the formalities prescribed 
 by law for married women. 
 
 The Kentucky statute, allowing a woman to 
 dispose by will of any estate secured to her separate 
 use by deed or device, or in the exercise of a written 
 power, does not allow^ her to dispose of land, unless 
 the deed itself creates in her a separate estate. And 
 where the husband, after her death, executes a writ- 
 ing relinquishing all his interests, the same as 
 though it had been deeded to her separate use, and 
 the will had been made in pursuance of a written 
 power, and files it at the probate, it does not validate 
 the will where the rights of heirs are already vested 
 under the statutes of descent. Nor does a power to 
 use, sell, exchange, reinvest or otherwise dispose of, 
 as she may think proper. Under this statute her 
 separate property may be conveyed by order of 
 court. Her signature to the application for the sale, 
 and to the deed, is sufficient evidence of her assent. 
 Or her separate property may be conveyed under a 
 pow^er of attorney to her husband; and she may 
 dispose of it to secure the payment of his debts. 
 She will be bound by covenants contained in her 
 deeds ; but a lease by the husband, w^ithout her con- 
 sent, is void, and in an action by her to recover pos- 
 session no notice to quit is necessary. 
 
 210
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 When the instrument creating the trust pro- 
 vides that it may be disposed of by one mode, other 
 modes are generally excluded. A number of cases 
 support the opposite doctrine, that a power of dis- 
 position specifically pointed out does not preclude 
 the adoption of any other mode of disposition unless 
 there are negative words restraining the exercise 
 of the pow^er to the very mode pointed. On an ex- 
 amination of these cases it w^ill be found that an ab- 
 solute estate w^as granted the w^ife, the instrument 
 specifying that it should be conveyed by deed, in 
 which the husband or trustee joins, or by will, and 
 the question arose on her power to charge it w^ith 
 her debts. 
 
 As a corollary to the above proposition, it is 
 the settled doctrine in England that a married 
 w^oman may charge her separate estate in equity, 
 even by implication, with her debts, contracts and 
 engagements. By entering into such engagements 
 she must have meant to effect something and as she 
 cannot have expected to have charged her person, 
 she could have had no other design than to subject 
 to the fulfillment of her engagements so much of 
 her separate estate as is subject to her absolute dis- 
 posal as if she w^ere a feme sole. And thi^ is the 
 general rule in the United States, though in some 
 states the contract must be for the benefit of the 
 wife or her separate estate. Following is the doc- 
 trine as to a married woman's charging her equitable 
 separate estate as it exists in each of the states in the 
 Union : 
 
 ALABAMA. — There is, in this State, an es- 
 sential difference in the manner of charging the 
 statutory separate estate of a married woman and 
 her equitable separate estate, or separate estate by 
 contract. The former is charged by the statute w^ith 
 the price of certain articles, the character of which 
 
 211
 
 WOMAN UNDER THE LAW 
 
 is specified, and her agency in purchasing them is 
 immaterial ; while the latter can only be charged by 
 the act and agreement of the wife, and, in the ab- 
 sence of restraining words in the instrument creat- 
 ing the estate, it may be charged to the same extent 
 as if she were a feme sole. 
 
 By giving a promissory note for the purchase 
 price of land conveyed as statutory estate, and a 
 mortgage to secure the same, a married woman 
 thereby charged her equitable separate estate. 
 
 She may become a member of a partnership 
 and her interest will be subject to a judgment against 
 it in a common name. Where a conveyance was 
 to her use, with power to sell, or mortgage the same, 
 provided she join with the trustee in any sale or con- 
 veyance of the property, and by such joint action 
 manifest her consent in writing to the disposal of 
 the same, she v/as allowed to mortgage it to secure 
 her husband's debts without the trustee joining. A 
 charge against the equitable separate estate can only 
 be enforced in equity; and the creditors have prior- 
 ity in the order in which their bills are filed. 
 
 ARKANSAS. — In order that her separate 
 property may be bound, it is not necessary that she 
 should execute an instrument expressly referring 
 to it or purporting to exercise a power over it. It is 
 sufficient that she professes to act as a feme sole; 
 for the court of chancery in giving her the capacity 
 to hold separate property gives also the capacity, 
 incident to property in general, of incurring debts 
 to be paid out of it, and enforces payment of such 
 debts when contracted, not as personal liabilities, 
 but by laying hold of the separate property as the 
 only means by which they can be satisfied. 
 
 But the contract must be for the benefit of her- 
 self, or her separate estate, or it cannot be enforced 
 against it. 
 
 212
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 A married woman may charge her separate es- 
 tate by the employment of counsel to prosecute a 
 suit for divorce, and if she die before the termina- 
 tion of the suit, the counsel will be entitled to be 
 paid out of her estate for the service rendered during 
 her life. A judgment against a married woman 
 upon a claim for which she is not legally liable — 
 for instance, as maker of a note for the accomoda- 
 tion of her husband — is not void, but may be en- 
 forced against her separate property. 
 
 CALIFORNIA. — A married woman may con- 
 tract for services to be rendered for the protection 
 and preservation of her separate estate, w^hich is per- 
 sonal property, and for services thus rendered on the 
 faith of her separate estate, a court of equity will 
 enforce a lien; but she cannot create a lien on her 
 separate estate except by contract in w^riting signed 
 and acknowledged by her. 
 
 But courts of equity are careful in guarding 
 against imposition, and in seeing that dealings with 
 her affecting her separate estate are free from fraud 
 and reasonable in their terms, and that no unfair 
 advantage has been taken of her. 
 
 COLORADO. — There must be an express 
 promise binding the separate estate, unless the con- 
 tract is for her benefit, or for the benefit of her 
 separate estate. Her contracts were formerly valid 
 only against her separate property in equity. 
 
 CONNECTICUT. — The presumption is that a 
 contract entered into by a married woman having a 
 separate estate, for its benefit or for its exclusive 
 benefit, was contracted upon the credit of her estate. 
 A husband cannot rebut the presumption of law 
 that a building erected by him, on her separate prop- 
 erty, is intended for her benefit, and cannot recover 
 the value of such building either from her or from 
 her estate. 
 
 213
 
 WOMAN UNDER THE LAW 
 
 DISTRICT OF COLUMBIA.— A purchase of 
 furniture by a married woman, for a house forming 
 her separate estate, is a contract relating to her 
 separate estate and will be enforced. But otherwise 
 if the house was not her separate estate. Nor is the 
 purchase of a horse and carriage to be used in riding 
 back and forth from her home in the country to look 
 after property in the city, for the benefit of her 
 separate estate or a contract relating to it. If she 
 allows her husband to buy supplies for the family 
 upon the credit of her separate estate, she will be 
 liable therefor. 
 
 FLORIDA. — Unless the indebtedness is in- 
 curred on account of the beneficial nature of the 
 consideration, as inuring to the benefit of her prop- 
 erty or estate, the only manner in which a married 
 woman living with her husband, can create a charge 
 upon her separate property, is by some deed, mort- 
 gage, or other instrument of writing, duly executed 
 and acknowledged according to the statute. But 
 real estate of the wife will be charged in equity with 
 the value of improvements which she causes to be 
 built thereon. 
 
 GEORGIA. — While the w^ife may contract, 
 she cannot bind her separate estate by any contract 
 of suretyship, nor by any assumption of the debts 
 of her husband; and any sale of her separate estate 
 made to a creditor of her husband in extinguishment 
 of his debt shall be absolutely void ; and this applies 
 not only to the separate estate of the wife created by 
 deed, but to any property held by her as separate 
 estate. This does not affect the power of a widow^ 
 to contract w^ith reference to such debts after her 
 husband's death. In other respects the rule is the 
 same as in England. 
 
 ILLINOIS. — The debt must be contracted for 
 her own benefit, on the credit of her separate prop- 
 
 214
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 erty, or in reference to it, or there must be some 
 appropriate instrument executed by her with a view 
 to make the debt a specific charge. A contract by a 
 married woman compromising a bona fide claim 
 against an estate in which she has a right to a dis- 
 tributive share, is one in respect to her separate 
 estate, and binding on her, notwithstanding her 
 coverture. 
 
 INDIANA. — In this state the rule is the same 
 as in Illinois. The intent to charge must be clear 
 and is not to be presumed, and the contract must be 
 one from which benefit results to the property. 
 
 IOWA. — Iowa adopts the same rule as Indiana 
 and Illinois. 
 
 KANSAS. — Kansas follows the English rule, 
 and a married woman may bind herself by her con- 
 tract, to the extent of her separate property. A per- 
 sonal judgment may be rendered against her which 
 will reach any or all of her separate property not 
 exempt from execution under the exemption laws. 
 When a married woman executes a promissory 
 note, she, of course, means something. She either 
 means to charge her separate estate, or else she 
 means to cheat and defraud the person to whom she 
 gives the note. Is it not more charitable to suppose 
 she means the former? But suppose she means the 
 latter, will courts of equity hear her plead her own 
 guilt and fraud? If the contract of a married woman 
 does not bind her separate estate, then, of course, 
 it is a nullity ; for it is well settled that it cannot bind 
 her personally. But to give her contract such a 
 construction violates at least two well settled prin- 
 ciples of law: First, it presumes her guilty of fraud 
 before the fraud is shown. Second, it adopts a con- 
 struction which will defeat the contract, instead of 
 adopting the construction w^hich will prevent its 
 
 215
 
 WOMAN UNDER THE LAW 
 
 violation and give effect to the obligation of each 
 and all parties. 
 
 KENTUCKY. — A married woman may 
 charge her separate estate whenever she thinks 
 proper to do so, but her intention must be manifest 
 or otherwise it will not be held liable. The execu- 
 tion of a note or endorsement of a bill of exchange 
 has been regarded as manifesting an intention by 
 a feme covert to charge her separate estate. It must 
 be the debt of the wife and the credit must be given 
 to her, or she must receive the benefit of it. A mar- 
 ried w^oman, with power to sue and be sued, to con- 
 tract and manage, sell, convey, and devise her prop- 
 erty cannot make herself liable upon a contract of 
 suretyship for the husband or for others ; but where 
 a device in trust, to pay her the income, contained a 
 provision that it was not to be liable for her debts, 
 it was held that it might be subjected nevertheless. 
 Her separate property is not liable, after marriage, 
 for necessaries, unless the contract be in writing and 
 signed by herself and husband; but a joint note by 
 herself and husband given in payment for neces- 
 saries, is sufficient evidence in writing. 
 
 MARYLAND. — In Maryland it must be 
 affirmatively shown that the contract was made by 
 the married woman with direct reference to her 
 separate estate, and that it was her intention to 
 charge the same. But where a husband and wife 
 bound themselves to execute a mortgage of the 
 separate estate of the wife, by a contract founded 
 upon a proper consideration, it was enforced by a 
 court of equity and the estate held liable for the debt 
 intended to be secured. Where a husband and wife 
 own adjoining tracts of land, and the husband, in- 
 tending to build a house for himself, selected a site 
 on the tract belonging to the w^ife because it was a 
 more commanding and in every way a more desir- 
 
 216
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 able location, and made a contract for the erection 
 of a house, and, when it was finished, paid in full 
 the contract price, notice to the husband by a fur- 
 nisher of materials that he intended to claim a 
 mechanic's lien was held insufficient, as the notice 
 should have been given to the wife, the husband 
 not being her agent in contracting for the erection 
 of the house. 
 
 MASSACHUSETTS.— The contract must be 
 made with reference to the separate estate. A mar- 
 ried woman cannot bind her separate estate by a 
 contract of suretyship, unless in consideration of the 
 benefit to herself or to the estate. And the fact that 
 a note given for the indebtedness of her husband, 
 and signed by both, is secured by a mortgage on her 
 real estate, does not render her liable on the note. 
 Her husband may act as her agent, and evidence 
 that he has the general management of her prem- 
 ises, and employed a man to perform labor upon 
 a house upon the land w^ith the wife's knowledge, 
 and that she gave directions as to parts of the work, 
 will justify a finding that he was her authorized 
 agent. While evidence that work done on the sepa- 
 rate property of a married woman w^as done w^ith 
 her knowledge, may warrant a jury in finding that 
 she agreed to pay for it, it raises no such presump- 
 tion of law^, and the judge has no right to direct a 
 verdict for the plaintiff in an action against her. 
 
 MICHIGAN. — To sustain a contract made by 
 a married woman it must appear to have been made 
 with the intent to bind her separate property, as well 
 as upon a consideration that would sustain it for 
 that purpose. She may be held personally liable 
 on her endorsement of paper due to herself upon an 
 affirmative showing that it was directly for the ad- 
 vantage of her separate estate. Where a married 
 woman living w^ith an irresponsible husband prom- 
 
 217
 
 WOMAN UNDER THE LAW 
 
 ises that she will pay for goods and medical services 
 to be furnished to her and her family, and they are 
 charged directly to her upon the creditor's books, it 
 appearing that he would not furnish them upon the 
 husband's credit she is liable therefor. The holder 
 of a bond, executed by a husband and wife for 
 money borrowed for the w^ife's sole benefit and use 
 in erecting a house upon land of which she was the 
 owner in fee, is entitled to have the claim allow^ed 
 out of her separate estate. But w^here the husband 
 and wife gave a promissory note for money loaned 
 for the sole benefit of the husband and there was no 
 representation that it was for the benefit of the 
 wife's separate estate, the payee cannot recover, as 
 the fact that the note was signed by both was suffi- 
 cient notice that it was not for the benefit of her 
 separate estate. The fact that the husband acted as 
 agent for the wife in procuring the loan makes no 
 difference. A married woman is not liable upon her 
 promissory note, given to secure the debt of her 
 husband. It is void as soon as made, and will not 
 be protected in the hands of a bona fide holder 
 whether negotiable or not. But a mortgage given to 
 secure credit for him will be enforced if no fraud is 
 practised on the v^fe. 
 
 MINNESOTA. — A married woman cannot 
 bind herself personally by any contract she may 
 make. But her separate estate w^ill, in equity, be 
 held liable for all the debts, charges, incumbrances 
 and other engagements which she does, expressly 
 or by implication, charge thereon in any manner not 
 inconsistent with the instrument by which she 
 acquires title to the property. Where a building 
 w^as erected upon land of w^hich a married woman 
 was part owner, under a contract entered into by 
 her husband and others, and it did not appear that 
 she w^as a party to the contract in any way, or that 
 
 218
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 her husband or any other person acted as her agent ; 
 that she had had any connection whatever with the 
 erection of the building, or that it was erected for 
 her on her account, or with her knowledge ; or that 
 she ever agreed to pay anything, for or towards the 
 expense of its erection, she could not be held liable 
 for the expense incurred thereon. 
 
 MISSISSIPPI. — In Mississippi a married 
 woman may deal with her separate estate as if she 
 were feme sole, unless her power is restrained by the 
 instrument creating it. These estates have grown 
 up w^ith equity jurisprudence and are not recognized 
 by courts of law^. The married woman's law of 
 1857 does not apply to them, and the class of con- 
 tracts w^hich that statute enables her to make is not 
 the criterion of her capacity to bind her equitable 
 estate. She may render it liable for the payments 
 of her debts by her separate acts. She may mort- 
 gage it to secure the payment of her husband's 
 debts, but the incumbrance reaches only to the rents 
 and profits of the realty and does not affect the fee. 
 The plea of coverture is no bar to an action for the 
 price of family supplies and necessaries sold to her, 
 for the use and benefit of the separate estate. The 
 plaintiff in order to charge the separate estate, must 
 set out in its pleadings, under the Revised Code of 
 Mississippi, the special circumstances which gave 
 validity to the contract. A foreign judgment against 
 a married woman cannot be enforced unless some 
 fund consisting of her separate property is pointed 
 out from which it may be satisfied. In only one in- 
 stance can the husband impose a charge upon the 
 wife's estate without her consent, and that is where 
 her lands are devoted to agriculture. He may bur- 
 den the estate in such case with a charge for such 
 things as are necessary to the production of the 
 crop, and for its management, without consulting 
 
 219
 
 WOMAN UNDER THE LAW 
 
 her, and nothing can exempt the estate from this 
 liability except a waiver of it by the creditor. It is 
 liable notwithstanding the husband misapplies the 
 supplies and she receives no benefit therefrom ; and 
 such liability may be enforced in a court of chan- 
 cery. But where the supplies were sold to the hus- 
 band without knowing that the plantation was his 
 wife's she was not estopped, after his death, from 
 denying that she ever received them or that they 
 were used for her benefit. The contract of a mar- 
 ried woman to purchase land on a credit imposes no 
 obligation on her personally or on her separate es- 
 tate. Her separate property may be subjected to the 
 payment of a judgment, even though acquired after 
 its rendition. A judgment against husband and 
 wife on a note for borrowed money is erroneous 
 where the note is not shown to have been applied to 
 her use or to her separate estate. 
 
 MISSOURI. — It is well settled in Missouri that 
 a married w^oman is to be regarded as a feme sole 
 as to her separate property, and competent to con- 
 tract debts which will bind it, whether it be named 
 or referred to, or not, and by giving a note or mak- 
 ing a written contract she raises a presumption that 
 she intends to bind such estate, and a contrary in- 
 tention, to be shown, must appear from the instru- 
 ment itself and cannot be shown by parol. The es- 
 tate may be bound by a note executed in blank. She 
 may subject her separate estate to a mechanics' lien. 
 The fact that a husband, as trustee, contracted debts 
 for the improvement of her property, does not of 
 itself create a lien on the same, in the absence of a 
 deed or other appropriate instrument of writing 
 executed by him. Where her husband acts as her 
 authorized agent, she will be bound, but not per- 
 sonally. 
 
 Where a married woman gives her notes for 
 
 220
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 the purchase money of real estate, and secures them 
 by a mortgage upon the property purchased, no per- 
 sonal judgment can be given on the notes, but the 
 lien created by the mortgage will be enforced by an 
 action analogous to a proceeding in equity to sub- 
 ject the property to the debt. Her property cannot 
 be attached. A proceeding in equity is the only 
 method by which the separate estate of a married 
 w^oman can be charged with the payment of her 
 debts, and the jurisdiction of the court is in no way 
 dependent upon antecedent legal proceedings of any 
 kind. If she has but a life estate and only the usu- 
 fruct of it inures to her benefit, she can create no 
 equitable charge upon the property. 
 
 Demands against the separate estate stand 
 upon the same footing at her death as other un- 
 preferred demands, but the general creditors should 
 resort to any other estate that she may have first. 
 In order to bind the separate estate the contract need 
 not be based upon a consideration moving directly 
 to her; and though the contract may be made a 
 charge upon the separate estate, it does not neces- 
 sarily become a lien thereon. There is this differ- 
 ence between the written and parol promise of a 
 married woman: where goods designed for family 
 consumption are sold to a wife on her parol promise 
 of payment, she will be presumed to purchase on the 
 credit of her husband, while purchases made on her 
 written agreement will be presumed to have been 
 made on her separate credit. The endorsement of a 
 promissory note has been held to be an appointment 
 in writing; and though the terms of a deed of settle- 
 ment only allow the wife to convey the separate 
 estate by joining her husband, she may still subject 
 it to the payment of her debts. Her separate estate 
 will be charged in equity with damages for her 
 breach of contract to purchase real estate. 
 
 221
 
 WOMAN UNDER THE LAW 
 
 NEW HAMPSHIRE.— This state adopts the 
 English rule, and by statute the wife is made liable 
 at law personally, as well as in respect of her estate, 
 for debts contracted by her in respect to it. But she 
 can make no contract for money or property in an- 
 ticipation of the purchase of such separate estate. 
 
 NEW JERSEY.— The separate estate of a 
 married woman will be held liable in equity for all 
 debts which she, either expressly or by implication, 
 charges thereon. But if she, during coverture, 
 contracts debts generally without indicating any in- 
 tention to charge her separate estate for the pay- 
 ment of them, it will not be liable. If she assigns 
 a bond belonging to her separate estate, for a valu- 
 able consideration, and guarantees the payment, she 
 will be held liable on the guaranty. She cannot bind 
 herself personally, but the charge is one upon her 
 separate estate. Such debts are not a lien upon the 
 separate estate until made so by a decree of the court 
 of equity. A married woman cannot charge her 
 separate estate by a contract of suretyship, unless 
 in consideration of a benefit to herself or to the 
 estate. But the release of lands in which she has a 
 dower right from an incumbrance is such a benefit. 
 An obligation enforceable in equity will support an 
 express promise to pay. Where a feme covert has 
 no separate estate, her contract does not create an 
 obligation which is enforceable in equity; and, 
 therefore, is not such a consideration as will support 
 an express promise to pay after the death of her hus- 
 band. The jurisdiction in the court of equity over 
 the separate estate of a married woman, rests not 
 merely on the ground that it is an equitable estate, 
 but on the ground that it is her separate estate, 
 which is equitably subject to contracts and engage- 
 ments entered into by her which are not legally 
 
 222
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 binding on her personally, and which cannot be 
 enforced at law. 
 
 NEW YORK. — It must clearly appear from a 
 written instrument that it was a married woman's 
 intention to charge her separate estate, or the con- 
 sideration of the contract must be for the direct 
 benefit of the estate itself; and if charged by a writ- 
 ten instrument, whatever separate estate she may 
 possess at the time of the trial and judgment, even 
 though acquired after the instrument was signed, 
 will be bound. Where the wife knew that the plain- 
 tiff was at work on a house that she was building on 
 her separate premises, and the kind of work that he 
 was doing, the law will imply a promise on her part 
 to pay for his services, although he w^as employed 
 by the husband without any express agreement 
 whether he should be paid by the husband or by the 
 w^ife. And where a married woman informed the 
 physician attending her that she owned a team of 
 horses and carriages, and w^as worth enough to pay 
 him her account, and it was on the strength of these 
 representations that he attended her, it w^as held 
 sufficient to show the existence of a separate estate, 
 and to sustain a verdict for the plaintiff. Where a 
 husband gave, in payment of an antecedent debt, 
 his note, endorsed by his wife, to one w^ho does not, 
 on the faith thereof, release any security or legal 
 rights, or extend the time of the payment of the 
 debt, the wife cannot be held liable. And when a 
 married w^oman sent an order to the payee of a note, 
 signed by her as principal with her husband as sure- 
 ty, requesting that the money be sent by the holder 
 of the order, and it w^as thereupon paid said holder, 
 the presumption that the money wras received by 
 her and applied to the benefit of her estate might be 
 overcome by proof that the money was actually paid 
 to the husband by the party receiving it. 
 
 223
 
 WOMAN UNDER THE LAW 
 
 It does not impair the negotiability of a note 
 made by a married woman for it to contain a clause 
 making it a charge upon her separate estate. 
 
 The burden of proof is always on the plaintiff 
 to show that the contract was for the benefit of the 
 wife's separate estate, and if made by her husband 
 as her agent, that it was within his power as agent. 
 
 By an act of the legislature, a married woman 
 is liable for her attorney's fees without reference to 
 the question of actual benefit to her separate estate. 
 
 NORTH CAROLINA.— Where an instru- 
 ment executed by a married woman with the writ- 
 ten consent of her husband, does not specifically 
 charge her separate estate, it is necessary to show 
 such a consideration inuring to her benefit, or the 
 benefit of her separate estate, as w^ill necessarily 
 imply such a charge. But if the money borrowed 
 be used to improve the separate estate, a charge will 
 be implied. 
 
 A married woman's power to charge her sepa- 
 rate estate is limited in North Carolina to the man- 
 ner and mode prescribed by the instrument creating 
 it; and under the former practice it could only be 
 subjected by a bill in equity — a proceeding in rem 
 not in personam. 
 
 A deed of trust, executed by a husband and 
 wife upon her separate estate, to secure the pur- 
 chase-money thereof and money borrowed to defray 
 expenses of farming operations on other lands, is 
 valid. 
 
 OHIO. — Where a married woman, having a 
 separate estate, executes a promissory note as surety 
 for the principal maker, a presumption arises that 
 she thereby intends to charge her separate estate 
 with its payment; but a contract, to charge the 
 separate estate, need not be in writing, though it 
 
 224
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 must be valid in law, or just and equitable between 
 the parties. 
 
 OREGON. — Oregon also adopts the English 
 rule. 
 
 PENNSYLVANIA.— A married woman's 
 power over property settled to her separate use can- 
 not exceed the limits prescribed in the deed of settle- 
 ment, and she has only those powers to transfer and 
 charge which are expressly given by the instrument 
 under which she acquired title. 
 
 The act of 1 848 conferred upon married 
 women no rights as to the disposition of property 
 settled to their separate use to which they were not 
 before entitled. 
 
 To bind her separate property for medical serv- 
 ices, employed for the family, affirmative proof 
 of a request by her, is necessary. 
 
 RHODE ISLAND. — Intention to charge must 
 be declared in w^riting, or the contract must be for 
 the benefit of herself or her separate estate. 
 
 SOUTH CAROLINA.— It is settled law in 
 South Carolina that a married woman can only dis- 
 pose of, or charge, her separate estate, in the execu- 
 tion of powers conferred by the instrument creating 
 it. 
 
 Where a married woman is to receive an in- 
 come for her sole and separate use, and no restric- 
 tion is imposed upon her use and disposition of it, 
 she is regarded as a feme sole as to the same, and 
 may give it to her husband after it has been paid to 
 her. But where a married woman gives a bond to 
 secure the payment of money borrowed by the 
 husband for his own use, it is void, and cannot be 
 enforced against her separate estate. Under the 
 South Carolina Constitution a married woman may 
 alienate her equitable estate in stock held by her 
 
 225
 
 WOMAN UNDER THE LAW 
 
 at the time of the adoption of the constitution; and 
 now under the General Statutes of South Carolina, 
 a married woman "may contract and be contracted 
 with as to her separate property in the same manner 
 as if unmarried. " 
 
 TENNESSEE. — A married woman may freely 
 charge her separate estate, unless restricted by the 
 instrument creating it, but to do so there must be an 
 express intent or agreement, and it cannot be made 
 liable by implication. Thus, though no considera- 
 tion passed to her, she may mortgage her lands to 
 secure the debt of her husband, and the mortgage 
 will be valid. Where she holds land for life, with 
 power to dispose of it by sale or will, the provision 
 of the act of 1 870, giving married women power to 
 sell, etc. ; or mortgage their separate realty, provided 
 the power is not expressly withheld in the deed or 
 will under which they hold it, does not give her 
 power to mortgage the same, as under such a settle- 
 ment the power to mortgage is expressly withheld 
 in the sense of the statute. 
 
 In order that a judgment against a married 
 woman may bind her separate estate, the claim or 
 debt on which it w^as based must be one w^hich 
 would have been a charge on the estate if the judg- 
 ment had not been rendered. Where a wife had 
 separate real estate both in Mississippi and Ten- 
 nessee, a Tennessee court of chancery refused to 
 charge the Tennessee lands with expenditures made 
 for the benefit of the Mississippi estate. 
 
 A married woman may charge her separate 
 estate by a contract not executed by a privy exam- 
 ination, such as is required in the case of deeds, but 
 in the absence of power conferred by the instru- 
 ment, a woman cannot make liable for her hus- 
 band's debt property given to her trustee for her 
 
 226
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 sole and separate use for life, and at her death to her 
 children. 
 
 TEXAS. — It has been held in Texas that 
 where the wife had separate property, and negroes, 
 and there was no common property, and the hus- 
 band was insolvent and unable to support his family, 
 and purchased goods, wares and merchandise, which 
 were necessary for the w^ife, children, and negroes, 
 and, afterwards, before the expiration of two years, 
 gave his note for the same, reciting that it was given 
 for the goods, wares, and merchandise furnished his 
 wife, family, and negroes, the separate property of 
 the wife was liable for the payment of the debt, and 
 that, too, notwithstanding the fact that more than 
 tw^o years had elapsed from the date of the account 
 or delivery of the articles, before the commence- 
 ment of the suit. 
 
 But unless for necessaries for herself and 
 fcmnily, a wife cannot, by simple contract, even in 
 writing, alone or jointly w^ith her husband, incum- 
 ber her separate property; though she may mort- 
 gage it when joined by her husband. 
 
 When a debt is incurred for the protection of 
 the separate property of the wife, to secure which 
 a note is executed voluntarily by husband and wife 
 jointly, judgment may be rendered on the note, 
 directing execution to be levied on the community 
 property, or on the separate property, at the option 
 of the plaintiff. But where the husband has no 
 separate estate, and there is no community prop- 
 erty, and the wife rents a house for the use of her- 
 self and family, such rent, if of reasonable amount, 
 is a valid charge upon her separate estate. 
 
 VERMONT. — There must be some express 
 pledge, or some benefit resulting to the wife or to 
 the separate estate in order to charge it. 
 
 The law will not raise an implied promise 
 
 227
 
 WOMAN UNDER THE LAW 
 
 against a married woman when she cannot make a 
 valid contract. 
 
 A wife's separate estate is not chargeable for 
 money paid by her father to a third person as surety 
 for her husband ; nor for repairs made on her house 
 by her father, who lived with her, to suit his own 
 convenience, and for his own benefit, he not con- 
 sulting her, the repairs being unnecessary, and not 
 adding to the value of the house, and there being no 
 understanding that he was to be reimbursed; but 
 where a married woman promised to allow, in pay- 
 ment of a man's note, services rendered by him in 
 supporting her mother, the promise was enforced 
 in equity against her separate estate. 
 
 VIRGINIA. — In Virginia a married woman is 
 considered a feme sole as to her separate estate, un- 
 less restricted by the instrument creating it, and it 
 may be charged with her debts and contracts gener- 
 ally. She may cause land to be pledged as security 
 for her husband's debts. 
 
 To charge her separate estate for her notes, she 
 must have had such separate estate subject to her 
 jus disponendi when she signed the notes, and must 
 have known of it and intended to charge it. But 
 where she endorsed a negotiable note in blank to 
 enable her husband to make certain purchases, 
 which he failed to do, and afterwards bought a 
 larger amount of goods than w^as originally contem- 
 plated at the time of the endorsement, and filled up 
 the blanks to suit his purchase, the wife was held 
 bound by the endorsement. 
 
 The court of equity in enforcing the liability 
 of a married woman's separate estate for her gen- 
 eral engagements, w^ill order a sale of the personal 
 estate and the subjection of the rents and profits of 
 the lands, until the debt is discharged. 
 
 WEST VIRGINIA.— The separate estate of a 
 
 228
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 married woman is liable for any simple contract 
 debt for which she would be liable if a feme sole. 
 A consideration for such debt need not inure to her 
 own benefit or that of her separate estate; it may 
 inure to the benefit of her husband or any third 
 party, or may be a mere prejudice to the other con- 
 tracting party. 
 
 Land which is the separate estate of a married 
 woman cannot be sold for debts contracted by her 
 during coverture, but can only be rented during the 
 coverture. 
 
 WISCONSIN. — The separate estate of a mar- 
 ried woman may be charged in equity with the pay- 
 ment of debts contracted for her benefit. 
 
 As has been seen, the contracts of a married 
 woman are enforced in a proceeding in rem against 
 the property, and are not binding on her personally. 
 The property will be charged with any damage re- 
 sulting to others from failure to keep it in proper 
 repair, or from her careless management; and it 
 has even been held that she would be personally 
 liable. 
 
 As a married woman is considered a feme sole 
 as to her separate estate, it necessarily follows that 
 she may sue and be sued in equity in regard to it. 
 She may obtain an order to answer separately as a 
 defendant, have a conveyance fraudulently ob- 
 tained set aside and may prevent her husband's 
 creditors from seizing her property for his debts. 
 The dealings of a husband with the separate prop- 
 erty of his wife are alw^ays to be closely scrutinized 
 and will not be upheld whenever slight evidence of 
 fraud or undue influence appears. A wife may 
 present a petition without her husband, and will be 
 bound by her separate answer, or by her settlement 
 of accounts. The trustee should be joined with her, 
 though she had been allowed to sue alone. She 
 
 229
 
 WOMAN UNDER THE LAW 
 
 may foreclose in her own name a mortgage that has 
 been assigned to her, although the note is held by a 
 trustee for her use. But the husband should be 
 made a party defendant ; especially if he claims any 
 interest in the separate estate, or if any of his acts 
 are in question. She must be made a party to all 
 suits to subject her separate estate or it will not 
 affect her interest. 
 
 A judgment recovered by a tax collector, in a 
 suit to enforce a lien against a married w^oman's 
 separate property for unpaid taxes, could not affect 
 her interest where she w^as not made a party defend- 
 ant, and the purchaser at the tax sale under the 
 judgment could acquire no title. 
 
 The clause against alienation and anticipation 
 in a settlement in trust for a married woman be- 
 comes inoperative upon the termination of the 
 coverture, either by death, or an absolute divorce; 
 and a w^ife may lose her separate property in per- 
 sonalty by allowing it to be so employed or in- 
 vested as to become mixed with other funds in such 
 a manner that it becomes impossible to identify or 
 trace it; though a court of equity will throw^ safe- 
 guards around, and see to the proper application of 
 a trust fund, and w^ill follow it so long as it can be 
 clearly and distinctly traced, yet when the means of 
 identification fail, the pow^ers of the court in refer- 
 ence to that fund must also cease. 
 
 A wife may lose her separate property by put- 
 ting it in the husband's possession w^ithout any 
 agreement that he shall repay it. Thus, w^here a 
 feme covert , vs^ho had a separate estate, purchased 
 articles of furniture with the rents and profits of 
 such estate, and put them into the possession of her 
 husband w^ithout any agreement or understanding 
 with him that he should hold them as her trustee, or 
 that the title should be vested in any other person 
 
 230
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 for her separate use, the articles thus purchased 
 were held to become the property of her husband 
 and liable to be sold for his debts. But where the 
 trustee of a sum of stock for the separate use of a 
 married woman improperly transferred it into the 
 joint names of her husband and herself, and her 
 husband for six years received the dividends, after 
 which the trustee died, and the husband, without 
 his w^ife's knowledge, sold out the stock and applied 
 the proceeds to his own use, and afterwards left her, 
 it was held that, though the w^ife might have been 
 presumed to have assented to his actual receipt of 
 the dividends while the stock remained intact, yet 
 no such assent could be presumed after it had been 
 so sold, and that she was entitled to recover, as 
 against her husband and the estate of the deceased 
 trustee, the arrears of dividends which had accrued 
 since that time, as well as to have the trust fund 
 replaced. 
 
 Statutes creating a separate estate for a mar- 
 ried woman do not interfere with the separate estate 
 in equity or prevent the creation and existence 
 thereof; the New York Acts of 1848 and 1849 are 
 held, how^ever, to have converted the wife's equit- 
 able into a legal estate. The jurisdiction of courts 
 of equity over these estates is not abridged or lim- 
 ited by virtue of such statutes, nor do they affect 
 the construction of a gift in trust for a married 
 woman. The statutes are to enlarge her privileges 
 and not to take away any pre-existing common law^ 
 right. Thus, in Alabama, all property owned by a 
 married woman is presumptively regarded as her 
 statutory separate property, and the burden of proof 
 is on one asserting her estate to be equitable. 
 
 A man took a mortgage from his brother for 
 money loaned. He having died, his widow pro- 
 cured another mortgage to herself from the mort- 
 
 231
 
 WOMAN UNDER THE LAW 
 
 gageor, alleging that the money loaned was hers, 
 and surrendering the first mortgage. In a suit by 
 the decedent's administrator to foreclose the first 
 mortgage, it was held that the burden of proof was 
 on the widow to show that it was her money and 
 not that of her husband. 
 
 Where property levied on is, as shown by the 
 sheriff's return, in the possession of the husband, 
 but is claimed by the wife as her separate property, 
 the burden of explaining such possession is on the 
 wife. But where creditors of the husband levy on 
 personalty which the wife, who has a separate estate, 
 claims as purchased from a third person with her 
 own means, the burden of proving fraud on her 
 part is on the creditors, and she is not bound to show 
 that the price was paid with her own money, and 
 not that of her husband. 
 
 Where a husband without his wife's authority, 
 executes in his own name a bill of sale of her horse 
 and endorsed thereon an order to his wife to deliver 
 the horse to the purchaser, who presented the order 
 and took the horse, the wife neither consenting nor 
 refusing to deliver the animal, it was held, in an 
 action by the wife to recover possession, that the 
 court having charged that the burden was on the 
 plaintiff to prove that the horse was her property, 
 it was not error to refuse defendant's instruction, 
 that, if the plaintiff failed to schedule her property 
 the burden w^as on her to prove that the horse was 
 her separate property. 
 
 But in Illinois it has been held that the mar- 
 ried woman's act of 1 861 was not designed to abro- 
 gate the common law presumption that the husband 
 owns all the property in the possession of the wife 
 while they are living together. If the wife clcdms 
 the benefit of the act, she must bring herself within 
 its provision by proof. She holds the affirmative 
 
 232
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 of the issue and must prove it. And it is not 
 sufficient for the wife to prove that she purchased 
 the property from a person other than her husband 
 during coverture, to enable her to hold it as against 
 her husband's creditors. She must also show she 
 obtained in good faith the consideration which she 
 paid for it from a source other than her husband. 
 
 And in New Jersey, where a wife, possessed of 
 a separate estate, permitted her husband to carry 
 on business therein in her name, and he collected the 
 income of her separate estate, and made expend- 
 itures thereon, it was held in a creditor's suit to 
 subject the wife's realty to the payment of her hus- 
 band's debts, upon the ground that his earnings had 
 been expended in its improvement, that if the 
 amount expended by the husband on the wife's 
 property was not in excess of the amount of her 
 separate income received by him, the presumption 
 w^ould be that he applied her income and not her 
 earnings to the improvement of her estate. 
 
 Whether the possession of chattels by a mar- 
 ried woman is prima facie evidence of ownership, 
 is disputed. But it is said that there is no presump- 
 tion of law that money or negotiable securities in 
 the possession of the wife belong to her husband 
 rather than to her. Where, however, husband and 
 wife are living together, the presumption is that the 
 personal property in the house belongs to the hus- 
 band. The fact that money earned by the joint 
 labor of the husband, w^ife, and minor children, on 
 a farm, and from the sale of the produce, w^as always 
 kept in the personal possession of the wife, does not 
 rebut the presumption that the title thereto was in 
 the husband. 
 
 A husband living with his wife is presumed to 
 be the head of the family; and the fact that she 
 makes the contract for board and received the pay 
 
 233
 
 WOMAN UNDER THE LAW 
 
 therefore, in the business of keeping a hotel or 
 boarding-house, will not prove the receipts to be her 
 separate property. In Texas, however, where a 
 married woman claimed, as against her husband's 
 creditors a stock of goods, it was held that the 
 presumption was that the goods w^ere community 
 property and not her separate property, and that 
 consequently the burden of proving the goods to be 
 her ow^n was upon her. 
 
 In one case, where the circumstances were 
 peculiar, an exception to the rule in the text above 
 was adopted. A husband and wife had died within 
 a few^ hours of each other. The w^ife had a separate 
 estate and income. A sum of money w^as found in 
 the wife's pocketbook, another sum in a pocketbook 
 marked with her father's name; also some money 
 in a bag, and some coin lying loose — all in a trunk 
 marked w^ith the wife's name, to which both had 
 access, the key being usually kept by the wife. 
 Their deeds, bonds, and other papers were also 
 found in the trunk. There was nothing to show the 
 amount contributed by either one to the money so 
 found. It v/as held that they should be considered 
 as owning it in equal shares. 
 
 To overcome the presumption that personal 
 property in the house where husband and w^ife are 
 living together is the property of the husband, the 
 w^ife must show that she owned property before her 
 marriage, or that she has acquired it since in a way 
 entirely independent of her husband. A woman 
 w^ho never released to her husband any right in her 
 property ow^ned at the time of the marriage, is 
 presumed to have continued absolute owner, and at 
 her death her real estate passes to her heirs, and her 
 personalty to her personal representatives. 
 
 The statutes quite generally agree in making 
 property, real or personal, ow^ned by a married 
 
 234
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 woman at the time of her marriage, her separate 
 estate. Where an unmarried woman, after acquir- 
 ing an initiatory right to pre-empt land, marries, 
 and then pays, and takes the patent, the land is her 
 separate estate, and this, whether the money paid 
 belonged to the community or was obtained from 
 the sale of a portion of the land. 
 
 A deed conveying land to a single woman 
 sufficiently shows the land to be her separate estate, 
 though followed after her marriage by a second deed 
 from the same grantor to her in her married name, 
 and on an express money consideration. 
 
 By the term earnings is meant money or prop- 
 erty gained by labor, services, or business manage- 
 ment. It is not to be supposed that it was w^ithin 
 the contemplation of the legislature in conferring 
 upon married women the right to receive, use, and 
 possess their own earnings, and to sue for the same 
 in their ow^n names, that it was to be limited to such 
 only as should result from manual labor, or that, 
 in conferring upon them the right to have their 
 separate property under their sole and separate 
 control, and to hold, own, possess, and enjoy the 
 same as though they were sole and unmarried, they 
 were to be restricted in its use or disposition. The 
 right to contract is indispensable to the acquisition 
 of earnings, and to the unrestricted possession, con- 
 trol and enjoyment of property. I can perceive of 
 no reason why a married w^oman, invested with 
 these rights, may not, at least with the consent of 
 her husband, earn money in trade, as well as at the 
 w^ashtub or w^ith the sewing-machine ; why she may 
 not as well be the proprietress of a grocery-store, as 
 of a farm; contract debts for goods to be used in 
 trade, as for animals and farming implements, or 
 lands, or farm labor. In removing the common law^ 
 restriction upon her rights to acquire and control 
 
 235
 
 WOMAN UNDER THE LAW 
 
 her property, the legislature has left her to deter- 
 mine, at all events when her husband shall not ob- 
 ject, from the dictates of her own judgment, in w^hat 
 lawful pursuit she will engage, and whether it shall 
 be prosecuted alone or in conjunction with others. 
 
 Married w^omen's property acts which do not 
 specifically mention her earnings, do not change 
 the husband's common law rights as to the same. 
 So a statute which provides that a w^ife may earn 
 money on her separate account, does not affect any 
 earnings, of hers, unless they appear to have been 
 acquired by her on her separate account. But the 
 wife's earnings may be secured to her separate use 
 by the assent of her husband, or by a settlement 
 made either before or at the marriage. Or a hus- 
 band may give his wife her earnings; but such gift 
 must not defraud creditors, and the burden lies upon 
 the wife to prove clearly the gift. 
 
 In most of the states' statutes it is expressly 
 provided that the wife's earnings shall be her 
 separate property, free from liability for the debts 
 of her husband. But the married women's statutes 
 cannot deprive the husband of money for the wife's 
 services already paid or due. The right of a wife 
 to hold property is as absolute as that of any other 
 person, and whether she paid anything for it or not, 
 does not concern her husband's creditors, so long as 
 it did not come through, or in some way, from him. 
 Thus, where a wife used in the purchase of real 
 estate her earnings before marriage, saving out of 
 money given her by her husband for household ex- 
 penses, and money borrowed by her, it was held that 
 the absence of evidence of fraudulent designs to- 
 wards the husband's creditors, the debts of the hus- 
 band could not be charged upon the land, the same 
 having been purchased by the wife a year before 
 the debt w^as contracted. 
 
 236
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 Where land was conveyed to the wife, and it 
 appeared that she had funds, and the husband had 
 none, and that it was the expectation of all parties 
 that the wife should pay for the land, it was held 
 that the fact that the husband gave his note to the 
 vendor, did not, in the absence of fraud or collusion, 
 prevent the land becoming the wife's separate es- 
 tate. 
 
 A married woman who uses her separate statu- 
 tory property to purchase real estate, and has the 
 same conveyed to her sole and separate use, does 
 not thereby change the character of her estate, so 
 as to make it equitable. 
 
 A wife, who had been declared a feme sole by 
 decree of court, purchased at a judicial sale land 
 which belonged to her husband and w^hich had been 
 mortgaged by him. She paid for it with the pro- 
 ceeds derived from her general estate, which pro- 
 ceeds had never been reduced into possession by the 
 husband. It was held that the land so purchased 
 was not bound by a judgment obtained against the 
 husband upon a debt created by him prior to said 
 purchase. 
 
 In Alabama, the services and earnings of a 
 married woman belong presumptively to her hus- 
 band and after his death to his personal representa- 
 tive. To enable a wife to maintain a suit for such 
 earnings, she must allege that her husband's estate 
 had no creditors, or else that his debts were paid, 
 and also allege facts showing a relinquishment by 
 the husband, express or implied, of the earnings to 
 her. 
 
 In Georgia, it was held that the earnings of a 
 married w^oman prior to 1866, w^here she was not 
 a free trader and did not live separately from her 
 husband, belonged to her husband ; and that, where 
 he bought land with such earnings in his own name, 
 
 237
 
 WOMAN UNDER THE LAW 
 
 no trust in the wife's favor could be implied as 
 against a creditor of the husband whose debt was 
 contracted after the purchase of the property, and 
 who had no notice of an alleged trust. 
 
 In an action to recover of executors for ten 
 years* services as housekeeper for the testator, who 
 was plaintiff's father, it appeared that she had sepa- 
 rated from her husband, and supported herself by 
 her earnings. It was held that she was entitled to 
 bring the suit, the wages belonging to her. 
 
 If a married woman appropriates to the pay- 
 ment of her husband's debts the earnings made by 
 her for services performed on her sole account, she 
 cannot reclaim them. 
 
 In West Virginia, where a married w^oman, 
 who claimed the fund garnished for the debt of her 
 husband, had no separate estate, and there was no 
 marriage settlement, and it appeared that the money 
 claimed was earned by her, while living with her 
 husband, and in part w^as acquired by her by raising 
 cattle on her husband's farm, and that another part 
 was given her by her son before the adoption of 
 the law providing for separate estates of married 
 women, the money was held to be the property of 
 the husband. 
 
 Under the Indiana law^ entitling a married 
 woman to the earnings of her separate business, 
 she may buy a note with such earnings, and her 
 husband's endorsement will pass the title of the 
 note to her, so as to enable her to sue the maker. 
 
 The equity obtained by a wife who has pur- 
 chased land, paying part of the purchase money, 
 and taking bond for title on payment in full, is her 
 statutory separate estate. 
 
 The provision of the Rhode Island statutes 
 that property acquired by a woman after marriage 
 by her own industry, shall be absolutely secured 
 
 238
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 to her sole and separate use, is sufficient to enable 
 a woman to recover for board furnished by her 
 father after her separation from her husband and 
 before her divorce. 
 
 But in some states the wife's earnings are held 
 to be her separate property free from liability for 
 the debts of her husband only where the husband 
 fails to provide for her, or where, for other reasons, 
 the wife lives apart from her husband. 
 
 The earnings and accumulations of a w^ife liv- 
 ing separate from her husband are her separate 
 property. But the fact that a note and mortgage 
 were given by a wife while living apart from her 
 husband, does not of itself prove that the lands 
 described in the mortgage were her separate prop- 
 erty. 
 
 A husband left his wife on account of domestic 
 infelicity, and resolved during his absence never to 
 resume marital relations with her, but to provide for 
 his family when necessary. The w^ife and children 
 lived together, supported by her exertions. It was 
 held that this was a separate living within the Cali- 
 fornia statute providing that the wife's earnings, 
 while she is living separate from her husband, shall 
 be her separate property. 
 
 The California Act of March 9, 1870, which 
 provides that while the wife lives separate and apart 
 from her husband she shall have the sole use of her 
 property, and may sue and be sued, etc., does not 
 apply to a case where the w^ife is temporarily absent 
 from her husband with his consent, but to cases 
 where there has been an abandonment on the part 
 of the husband or wife, or a separation w^hich is 
 intended to be final. 
 
 An agreement between husband and wife that 
 the w^ife's earnings in any special transaction shall 
 
 239
 
 I 
 
 WOMAN UNDER THE LAW 
 
 belong to her, vests in her all claim on account of 
 such service. 
 
 In a Minnesota case an agreement between 
 husband and wife that the latter should receive the 
 compensation to be earned by her in nursing a 
 boarder in the family who paid the husband for his 
 board, was held to vest in her any claim accruing on 
 account of such nursing, and, there being no ques- 
 tion of set-off or counter-claim, it was considered to 
 be immaterial that the boarder did not know of such 
 agreement. 
 
 If a husband consent that his wife may take 
 boarders into the family, and that she shall have 
 the gross proceeds for application on a contract 
 which he has made with a third person for the pur- 
 chase of real estate, and if the money so acquired 
 by the wife be thus applied, the money is hers, and 
 not his. If, on completing payment, the wife takes 
 the conveyance of the premises to herself from such 
 third person, her title w^ill prevail against a creditor 
 of her husband who gave credit after the property 
 w^as paid for, though the conveyance to her be of 
 later date than the giving of such credit. 
 
 The product of all labor of the w^ife for persons 
 other than her husband, belongs to her, and the fact 
 that the husband acted as the wife's agent in con- 
 tracting for the rendering of services by her, does 
 not affect her individual claim for compensation. 
 A wife can contract for her services, and sue alone 
 on the contract, making her husband, if need be, 
 garnishee. But the married w^oman's statutes do 
 not impliedly authorize her to contract with her hus- 
 band for her services, and she cannot recover from 
 him for services rendered, unless contracts between 
 husband and wife are by statute expressly author- 
 ized. A wife's earnings, however, in connection 
 with her husband's property, by keeping boarders, 
 
 240
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 selling butter, milk, etc., are his, not hers, and prop- 
 erty bought with them may be reached by his 
 creditors. 
 
 In Missouri, services rendered by a wife for 
 another, for compensation, are, both by statute and 
 common law, presumed to be performed on the 
 husband's behalf. 
 
 A wife may lawfully contract with a firm of 
 which her husband is a member, to run a boarding- 
 house for it for a share of the profits, and the shares 
 so earned by her will be her separate estate. 
 
 The profits, rents, increase, products and in- 
 terest of statutory separate property are also sepa- 
 rate property, w^hether the statute says so or not. 
 But in Texas the interest of money acquired by gift, 
 devise, or descent, is held not to be property 
 acquired by gift, devise or descent, and consequent- 
 ly not the wife's separate property. In Alabama a 
 statute giving the husband, as trustee of the statu- 
 tory separate estate of the wife, the right to control 
 it without liability to account to the wife for the 
 rent, etc., but not subjecting such rent, etc., to his 
 debts, it w^as held that land purchased in the name 
 of the wife with such rent could not be made liable 
 for the husband's debts. 
 
 The rule applies both to realty and personalty. 
 The Minnesota statute provides specially that the 
 rents, profits and increase of real estate shall be the 
 wife's property. It was held under this statute that 
 the naming of the increase of realty did not exclude 
 the increase of personalty. Hence the wife can 
 maintain replevin against any creditor of her hus- 
 band, or against any officer who seizes the property 
 of her separate estate. 
 
 Where a husband helps to farm his wife's land 
 the crops are presumed to be hers, not his. And the 
 same is true where a married woman owns and 
 
 241
 
 WOMAN UNDER THE LAW 
 
 occupies a farm; the mere fact that her husband 
 lives with her on the farm and assists with the cul- 
 tivation and management, will not w^arrant an in- 
 ference that the crops vested in him. The wife's 
 right, therefore, through the profits is not affected 
 by the fact that the husband assisted in earning 
 them. To illustrate, — the fact that a business be- 
 longing to a married woman is profitable mainly 
 through the labor, energy, and skill of her husband, 
 who is its general manager, does not make the 
 profits liable for his debts, so long as the parties are 
 acting in good faith. 
 
 In some states the increase of statutory sepa- 
 rate estate is provided for by statute. Thus, in 
 Alabama a husband has full power thereover and is 
 not accountable to his wife for her rent and profits. 
 
 The general rule is that property purchased 
 with the w^ife's money belongs to the wife, and is 
 not subject to the husband's debts. This is espe- 
 cially true where the property w^as purchased out of 
 the earnings of the w^ife prior to her marriage. 
 Where real estate was bought by a woman with 
 her own means, and before marriage conveyed to a 
 trustee to hold for her, and to be conveyed upon 
 her w^ritten request, such estate was held to be her 
 separate property. Where the purchase was made 
 w^ith money acquired subsequently to the mar- 
 riage, there are, in some states, qualifications 
 of the rule, such as that the earnings must 
 have been derived from an employment by a 
 third person. Thus in Kentucky, unless the w^ife's 
 earnings are derived in this way, such earnings be- 
 long to the husband and lands purchased w^ith them 
 w^ill be subject to the husband's debts. 
 
 The fact that property was purchased in part 
 with the wife's funds does not confer the entire 
 ownership upon the wife, although it seems that 
 
 242
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 she will be considered to own such a proportion in 
 the property bought as the funds furnished by her 
 bear to the whole price. In an Alabama case it was 
 held that where the husband mixed some of the in- 
 come of his wife's statutory separate estate with 
 moneys of his own, purchasing lands and taking 
 title to himself, this fact did not give the wife owner- 
 ship in the property so purchased. 
 
 But where at the time of the marriage the wife 
 contributed from her separate property all the stock 
 and capital of the business, except a few goods put 
 in by the husband, and the stock on hand at his 
 death was less than the amount of her original in- 
 vestment, it was held that the stock was her separate 
 property. But if there is no way of distinguishing 
 the property purchased by the wife, the w^hole is 
 presumed to belong to the husband. Property 
 bought with money lent by the wife to her husband 
 belongs to the husband. To illustrate, — A lent 
 money to her husband to do business w^ith. He 
 formed a partnership with B, A furnishing no more 
 money until she bought B out, her husband then 
 having entire control and management of the busi- 
 ness and having an equal interest with her therein. 
 After buying B out, she purchased certain goods 
 which were levied on upon an execution against 
 the firm. It was held that she could not replevin 
 the same as her individual property. 
 
 In another case which w^as an action by a wife 
 to recover from her husband money alleged to have 
 been paid by her in building and furnishing their 
 house, complainant testified that, w^hen she gave 
 defendant the money, she told him to pay it on her 
 home, "he took the money and paid it out. It w^ent 
 into the house. It w^as for the purpose of paying 
 the contractor." This was held to be inconsistent 
 with the idea of a loan or trust. 
 
 243
 
 WOMAN UNDER THE LAW 
 
 A loan of money by a married woman to her 
 husband, prior to the Illinois Married Woman's Act 
 of 1861, would invest him with the ownership, and 
 she w^ould cease to have any interest therein; but a 
 loan made after that act makes her simply her hus- 
 band's creditor, and if he invests the money in land 
 in his own name no trust results in her favor. 
 
 The husband, as well as the third person, may 
 act as the wife's agent in making the purchase of 
 property. Where it appeared that at the time of 
 the decree making the wife a feme sole , she ow^ned 
 no property at all, and that her husband subse- 
 quently bought goods and conducted business in her 
 name, realizing large profits, it w^as held that the 
 property was subject to the husband's debts. 
 
 The right of the wife to her property is not 
 affected by the fact that it has been listed by the 
 husband for taxation as his. Property bought by a 
 wife, in her name, after the institution of her suit 
 for a divorce and separation of property, which 
 w^ere subsequently decreed in her favor is presumed 
 to be her separate property. 
 
 Acquisition by gift is quite generally enumer- 
 ated in the statutes as one of the methods by which 
 a statutory separate estate may be acquired; and 
 where property is given to a wife, the presumption 
 is that it was intended to be for her separate use. 
 In Massachusetts a promissory note made payable 
 to a married w^oman at the request of her husband, 
 upon a consideration moving solely from him, is a 
 voluntary gift from him, and she does not acquire 
 a title to it as her sole property free from his con- 
 trol, and cannot maintain an action on it in her own 
 name. A gift for the "sole" use of a w^oman is 
 equivalent to a gift for her "separate" use, no tech- 
 nical w^ords being requisite in such a case. It has 
 been held that "gift" has the same meaning as "gift 
 
 244
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 or grant," and that a gift of personalty may be by 
 parol. 
 
 Real estate conveyed to a married woman is 
 her separate legal property, and the instrument need 
 not contain words show^ing that the property was 
 meant to be separate. If the grantor is the husband 
 the conveyance must not be to the prejudice of his 
 creditors, but the consideration must, as a rule, be 
 advanced by the wife. Thus, the mere recital in a 
 deed from a husband to his wife that a valuable con- 
 sideration has been paid to the use of the husband 
 from money of her statutory separate estate does 
 not create in the wife the statutory estate in the 
 land, unless the consideration was in fact paid as 
 recited. 
 
 Property acquired by the wife by exchange is 
 as much her separate estate as property acquired by 
 purchase. Thus, personalty received in exchange 
 for other separate property is itself separate prop- 
 erty. Under this head may be put the conversion 
 of the wife's land and the money, in which case the 
 proceeds will be her separate estate, notwithstand- 
 ing the lands may have been acquired by the wife 
 during marriage, and before the passage of the mar- 
 ried woman's law of Alabama. 
 
 Property acquired by a married woman, by 
 devise, bequest, descent or distribution is her sepa- 
 rate statutory estate. Under this head is included a 
 distributive share which vested, before the wife's 
 marriage, upon her father's death, but was not paid 
 until after the marriage. 
 
 Property conveyed to the husband in trust for 
 his wife is her statutory separate estate. Whenever 
 a husband obtains possession of the w^ife's separate 
 property, whether with or without her consent, he 
 is deemed in the absence of evidence that she in- 
 tended to make him a gift of it, to hold it in trust 
 
 245
 
 WOMAN UNDER THE LAW 
 
 for his wife. Where the husband purchases prop- 
 erty for the wife, the presumption is that the money 
 invested is the wife's separate estate. A husband 
 who invests money received by the w^ife as a gift 
 from her father, and takes title to the property so 
 purchased in his own name w^ithout her written con- 
 sent, is merely a trustee for the benefit of his w^ife. 
 A policy of life insurance taken out by the hus- 
 band for the benefit of his w^ife is, generally, under 
 the statutes, her separate property. 
 
 Choses in action may form part of a married 
 woman's separate estate, and may be acquired in 
 any of the ways enumerated; as, by purchase, ex- 
 change, etc. 
 
 The statutes enlarging the rights of married 
 women and providing for their separate estate are 
 broad enough, generally speaking, to embrace dam- 
 ages arising out of torts to their persons or property. 
 Where a wife owns separate property in one 
 jurisdiction and moves with her husband into an- 
 other, such property remains her separate estate. 
 But in the absence of evidence of what is the law^ 
 of the state from which part it came, the common 
 law rules will be applied. 
 
 The legislature, in creating a separate statutory 
 estate for the wife may, and usually does, provide 
 the mode for its disposal. A provision that, as to 
 such property the wife should have the same rights 
 and powers as if unmarried, has been held to give 
 her power to convey and dispose thereof freely 
 without the husband's consent, save only that to 
 pass his curtesy he must join in the deed. But 
 provision that it should be under her sole control, 
 and held, owned, possessed, and enjoyed by her the 
 same as though she were sole and unmarried, or that 
 it should continue hers as fully after marriage as 
 before, have been held not to give her the power of 
 
 246
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 disposal without the husband's consent, though she 
 could execute a lease thereof for a term of years. 
 
 As a general rule a married woman may charge 
 her statutory separate estate with her debts and con- 
 tracts made in reference thereto. To illustrate, — An 
 agreement by a married woman to pay for the board 
 of her husband with her earnings is binding on her, 
 though her earnings are her separate property. A 
 contract to build a house on her land is one in 
 reference to her separate property, and when signed 
 by herself and husband she will be liable upon her 
 acceptance of an offer drawn upon them jointly by 
 the contractor. The intent to charge may be in- 
 ferred from the surrounding circumstances, a 
 specific agreement not being always necessary. To 
 illustrate, — In the absence of evidence to the con- 
 trary, it will be presumed that money borrowed by 
 a married woman on a post-dated check, she hav- 
 ing a separate estate, carrying on business in rela- 
 tion thereto, and keeping a bank account in her own 
 name, was borrowed for the benefit of her separate 
 estate, and she will be held liable therefor. Where 
 a butcher refused to give further credit to a hus- 
 band, and the wife, who conducted the household 
 affairs and had a separate estate liable to be charged 
 with the debt, though she carried on no separate 
 business, said in reply to his remark that if he 
 wanted to run a bill he would charge it to her, "you 
 will not get cheated out of it, if you do 1 will see 
 you paid "; it was held not to be a sufficient indica- 
 tion of an intent to charge the separate estate, and 
 the butcher could not recover. In some states she 
 must have a separate estate in order that her con- 
 tracts may be enforced against her. She may be 
 liable upon her contracts though not charged upon 
 the separate estate, where they inure to her benefit 
 or that of the estate, or for necessaries furnished the 
 
 247
 
 WOMAN UNDER THE LAW 
 
 family. Whenever she buys goods on credit, she 
 benefits her separate estate to the extent of the pur- 
 chase, if she had no separate estate before she ac- 
 quired one by the purchase. In Pennsylvania she 
 may bind her separate estate for services necessary 
 in harvesting, housing and marketing a crop; and 
 her recorded contract for supplies for her separate 
 plantation binds the crops grown that year. She 
 may bind her separate estate by contracts of surety- 
 ship, unless disqualified by statutes, and, if the 
 statute gives her the general power to contract, it 
 will, of course, include the power to confess a judg- 
 ment. The separate property will be charged w^ith 
 the costs of the suit brought by the wife in respect 
 to it, and she may bind it by an agreement to pay 
 attorney's fees. 
 
 As a general rule in those states in which the 
 rule of the common law^, respecting the power of a 
 married woman to bind herself by contract, has been 
 modified by statute, a promissory note made by a 
 married w^oman as principal or surety, or endorsed 
 by her, is binding upon her separate property. A 
 married woman is not bound as a surety upon a 
 note, unless it appears that she became such with 
 an intention to bind her separate estate. In Indiana 
 the rents and profits of a married w^oman's separate 
 estate cannot be subjected to the payment of a note 
 executed by her, w^here, by the note itself, she 
 agreed to pay from her own separate property the 
 amount stated therein. In Virginia, the contracts 
 of a married woman, including her promissory 
 notes, are enforceable only against her separate 
 estate owned at the time of entering into the agree- 
 ment. Although a note given by a wife for her 
 husband expressly binds the wife's separate estate, 
 a policy of insurance on the husband's life is not 
 covered thereby, since, until the death of her hus- 
 
 248 
 
 I
 
 SEPARATE PROPERTY OF MARRIED WOMEN 
 
 band she has no such interest in the policy as can be 
 the subject of a charge. Where a married woman 
 endorsed upon a promissory note : "I hereby charge 
 my separate and personal estate for the payment of 
 the within note," the instrument was held not to 
 be a mortgage, in any sense, but simply a personal 
 security which a national bank is not prohibited 
 from taking. And the same is true of a note en- 
 dorsed for her accommodation or endorsed by her 
 for the accommodation of her husband. The rule in- 
 cludes also a note made by her jointly with her hus- 
 band, unless it appeared that she signed the note 
 only because her husband asked her to, and without 
 knowing the use to be made of it. In some juris- 
 dictions, however, the rule prevails that a married 
 woman's promissory note, in order to be valid, must 
 be for the benefit of her business or estate, or must 
 have been made with reference to her separate prop- 
 erty. But it has been held that the fact of a wife 
 signing a note with her husband is prima facie 
 evidence of her intention to charge her separate es- 
 tate. 
 
 When a married woman is not allowed by law 
 to enter into a contract with her husband, a note 
 given to him is not binding on her statutory separate 
 estate; and when she is not empowrered to make a 
 contract of suretyship, she cannot be held liable 
 upon her endorsement given to secure the debt of 
 another. 
 
 A mortgage executed by the wife upon her 
 statutory separate estate is binding; but in some 
 states with the qualifications that it must have been 
 given to secure debts contracted for her own benefit 
 or for the benefit of her estate, a married woman 
 may mortgage her land to secure her husband's 
 debt; if, however, she gives her note for the debt 
 and gives a mortgage to secure the note, the note 
 
 249
 
 WOMAN UNDER THE LAW 
 
 being void, the mortgage cannot be enforced. 
 Where a married woman inserted in her mortgage 
 a declaration that she "hereby makes a payment oi 
 the moneys, hereby secured, a charge upon her 
 other sole and separate estate," it was held that her 
 other separate estate was not thereby charged as 
 against one afterw^ards purchasing it in good faith 
 and for value. 
 
 Where a husband and wife join in a mortgage, 
 the w^ife's separate estate is similarly bound. In 
 those states in which a married woman is not al- 
 low^ed by law^ to charge her separate estate for the 
 benefit of her husband, a mortgage given for a debt 
 of the husband is necessarily void. 
 
 A married w^oman may manage her separate 
 estate as well by agent as in person, and may ap- 
 point her husband. She w^ill be liable for any debts 
 or charges incurred by him in the management of 
 the estate, but the authority must be shown. The 
 separate estate of a married w^oman cannot be 
 charged with the debts of a company, to the amount 
 of stocks standing in her name, w^here the stock w^as 
 entered on the books of the company by the author- 
 ity of her husband, a director, who voted and 
 represented it, and it did not appear that she had 
 authorized or ratified his acts, or claimed any in- 
 terest in the stock, or received any dividends there- 
 from; and it is a question for the jury whether upon 
 the evidence the agency was authorized, A party 
 w^ho credits the husband individually may charge 
 the wife upon discovering his agency. 
 
 If a w^ife avails herself of the result of her hus- 
 band's fraud, while acting as agent in reference to 
 her separate property she is liable therefor as though 
 unmarried ; and w^here he knowingly leased her real 
 estate for the unlaw^ful sale of liquor it was held 
 
 250
 
 SEPARATE PROPERTY OF MARRIED \/^OMEN 
 
 that the state had a lien thereon for the fines im- 
 posed on the seller. 
 
 The power of a married woman to will her 
 statutory separate property is usually regulated by 
 the statutes creating the estate, most of the separate 
 property acts giving her the authority to do so. 
 
 As a general rule, it may be said, the statutes of 
 the different states exempt the wife's statutory 
 separate estate from liability for the debts of the 
 husband, and, in the absence of fraud, his creditors 
 have, generally, no rights whatever against the 
 property. Not even where the separate property 
 consisted of store fixtures and other utensils which 
 she permitted her husband to use in his business. 
 But where she gives her husband the use of her farm 
 and the personalty thereon, his creditors may attach 
 hay severed by him from the land before the license 
 is revoked. And where a married woman went into 
 business w^ith a stock of goods purchased with her 
 separate means, and bought on credit and in her 
 husband's name, and replenished the stock from 
 time to time, and so continued for several years, and 
 it could not be shown how much of capital and how 
 much of profits were used by her in keeping up the 
 stock of goods, it w^as subjected to her husband's 
 debts. And so, also, where land was purchased in 
 the wife's name with the husband's money after a 
 debt accrued on which a judgment was founded. 
 
 In Alabama the wife can neither sell or mort- 
 gage her separate property for the payment of her 
 husband's debts. 
 
 In Louisiana a married woman may bind her 
 separate estate by an engagement to pay the debt of 
 her husband, by complying with the Louisiana 
 statute enabling married women to contract debts. 
 But a married woman, even though separate in 
 property, cannot be held liable for a debt contracted 
 
 251
 
 WOMAN UNDER THE LAW 
 
 by her husband, unless it be affirmatively shown 
 that it inured to her separate benefit. The husband 
 may labor upon the wife's statutory separate estate 
 as her agent or even make improvements there- 
 upon, without, in the absence of actual fraud, mak- 
 ing it in any way liable for his debts. In some states 
 the wife cannot even charge her separate estate for 
 the husband's benefit, although in others she may 
 do so. The wife's property not being liable for the 
 husband's debts, it is a fortiori not liable for his 
 torts. 
 
 The husband has no power to make a transfer 
 of, or create a charge upon, his wife's statutory sepa- 
 rate property, and if he assumes control of it will be 
 accountable to her for the principal, together with 
 the income and profits. In New York, the husband, 
 who is not a tenant by the curtesy has no interest in 
 the lands of his wife during coverture, and if he re- 
 mains in possession and control after the wife's 
 death, he is liable to the heirs of the wife for rents. 
 
 Where the statute creating the separate estate 
 of a married woman gives her power to hold, con- 
 vey and devise as fully as if a feme sole, the hus- 
 band's curtesy w^ill be defeated if she makes such 
 conveyance or devise; but if she dies intestate, not 
 having conveyed the property it would seerr. that 
 the husband will take for his life as tenant by the 
 curtesy, to the exclusion of the heirs of the wife. 
 Where it is the evident intent in making a settle- 
 ment of an estate upon a married woman that she 
 shall hold it as a feme sole, the husband cannot have 
 the curtesy; and it has been held that the husband 
 could not have curtesy of real estate conveyed to 
 the wife for her sole and separate use, w^ith power of 
 disposal, and who has so disposed of it. 
 
 252
 
 CHAPTER VIII. 
 COMMUNITY PROPERTY 
 
 All property acquired by the husband or wife 
 during marriage is community property; it includes 
 the profits of all the effects of which the husband 
 has the administration and enjoyment, either of 
 right or in fact, of the produce of the reciprocal in- 
 dustry and labor of both husband and wife, and of 
 the estates which they may acquire during the mar- 
 riage, either by donations, made jointly w^ith them 
 both, or by purchases, or in any other similar way, 
 even although the purchase be only in the name of 
 one of the tw^o, and not of both ; because in that case 
 the period of time when the purchase is made is 
 alone attended to, and not the person w^ho made the 
 purchase. The increase of animals belongs to the 
 community. Property purchased during marriage, 
 whether by the husband or wife, is community 
 property, and not the separate estate of the pur- 
 chaser, unless made with separate funds. 
 
 Conventional community is that which is 
 formed by express agreement in the contract of 
 marriage. It is immaterial whether the property 
 stands in the name of both of them. 
 
 Legal community is that which, in the absence 
 of any agreement, exists by force of law^ as soon as 
 the marriage relation is established. Land pur- 
 chased after the death of the wife and paid for with 
 community funds becomes community proF>erty. 
 The surviving husband and children hold as tenants 
 in common. 
 
 253
 
 WOMAN UNDER THE LAW 
 
 A crop growing at the time of the dissolution 
 of the marriage is community property. 
 
 No property acquired by the wife during cover- 
 ture becomes her separate estate, except such as is 
 derived by gift, devise, or descent; all acquired in 
 any other manner is community property. 
 
 In California property acquired after marriage 
 becomes community property, unless it be acquired 
 by gift, descent, devise, or bequest, or on the credit 
 of the separate estate. 
 
 In Texas the increase of all separate property, 
 except the increase of lands, is community property. 
 
 Property purchased during coverture by a wife 
 with the rents and profits of her separate estate are 
 not subject to any marital rights of the husband. 
 
 In California the increase and profits of the 
 separate estate of husband and wife and loans made 
 to the w^ife upon the faith of her separate property 
 are separate property; but in Texas they are com- 
 munity property. 
 
 In Louisiana the increase of separate property 
 becomes community property. 
 
 The central idea of the community system is 
 that marriage creates a partnership in property 
 between husband and wife, and that all property 
 resulting from the labor of both or either of them, 
 and all property vesting in them or either of them, 
 except by gift, devise, bequest, or descent, inures 
 to the benefit of both of them; and though com- 
 munity property has not all the incidents of part- 
 nership property, it has many of them, and is com- 
 monly spoken of as partnership property. 
 
 The doctrine of community property had its 
 origin in the Civil Law, but those states and ter- 
 ritories which have adopted it took it directly from 
 the old French, Spanish, or Mexican law. The doc- 
 
 254
 
 COMMUNITY PROPERTY 
 
 trine is at present recognized by statutes in Cali- 
 fornia, Louisiana, Nevada, Texas, Arizona, Idaho, 
 Montana and Washington. It formerly existed in 
 Missouri. The various statutes are to a large extent 
 declaratory of previously existing law, and con- 
 strued alike in several states. These statutes take 
 effect only in the absence of agreement between the 
 parties, as they may establish their property rights 
 by contract. 
 
 All property acquired during the existence of 
 the community, and all property in the possession of 
 either spouse during coverture, is presumed to be 
 community property. These presumptions may be 
 rebutted, but it must be by clear and satisfactory 
 evidence, and the burden of proof is upon the party 
 alleging that the property is separate property. 
 
 In California a purchaser from the husband, of 
 land deeded to the wife for a valuable consideration, 
 does so at his peril, and it may be shown that the 
 property was the separate property of the wife. 
 
 The husband and wife have equal interests in 
 the community, though during coverture the wife's 
 rights are passive, and he has full management and 
 control of the property, and may deal with it almost 
 as if it were his own. He is its sole representative, 
 and is liable for its debts. It is liable for its separate 
 debts. He has full power to dispose of it absolutely 
 without her consent; his sole deed passes com- 
 munity realty; his sole signature assigns com- 
 munity promisory notes, though standing in her 
 name; in his sole name he sues in ejectment, and 
 enforces a promisory note; he may give the prop- 
 erty away, but not with the intent to defraud her of 
 her rights, in view of divorce or of death, though 
 her remedy in such case seems confined to a bill 
 quia timet. He may give or assign community 
 property to his wife to be her separate property 
 
 255
 
 WOMAN UNDER THE LAW 
 
 where there is no fraud on creditors; and the prop- 
 erty and his widow are bound by his estoppel. The 
 husband cannot affect the interest of the wife by 
 will, or by any instrument to take effect after his 
 death ; and after the death of the wife he cannot dis- 
 pose of the community except to pay the debts 
 thereof or to the extent of his own interest. If 
 there be community debts, the survivor of the com- 
 munity may appropriate community property to 
 their payment; and his power to v^ind up commu- 
 nity affairs is so far recognized, that sales fairly 
 made by him for that purpose will not be set aside. 
 His pow^er to sell is dependent on the existence of 
 some claim against the community, and whosoever 
 purchases from him must see to it that the facts 
 exist w^hich authorize the sale. 
 
 Divorce proceedings alone do not affect his 
 rights, though his abandonment of his wife may 
 give her important powers. 
 
 When the husband deserts the w^ife, ceases to 
 discharge his marital duties, and contributes nothing 
 to her support and to the support of the children, 
 the power to manage, control, and dispose of the 
 community property for purposes of support is 
 transferred to the w^ife. In such a case the discre- 
 tion exercised by the wife in selling the community 
 property will not be reviewed, unless it has been 
 used to perpetrate a fraud on the husband's right. 
 It may safely be said that the abandonment of a wife 
 by her husband perfects all her rights in and to the 
 community property as effectually as if he were 
 dead. The sentence of a husband to the peniten- 
 tiary, and his confinement there, is equivalent to an 
 abandonment of the wife, and authorizes her to 
 manage and dispose of the community property, at 
 least so far as to secure a support for herself and 
 children. 
 
 256
 
 COMMUNITY PROPERTY 
 
 In case of divorce the property is divided; a 
 mere cause for divorce does not forfeit the rights 
 of either party, and after divorce the husband has 
 no powers over the wife's interest. 
 
 The wife's rights over the community are as 
 well defined and ascertained as those of the hus- 
 band; though once called "a mere expectancy," her 
 interest is equal to that of her husband ; and she may 
 protect herself by all the remedial processes afforded 
 to anyone. 
 
 A wife, under the liberal provisions of the con- 
 stitution and laws of Texas for the protection of her 
 separate property, may, in her own name, maintain 
 a suit by attachment levied on community property 
 belonging to herself and her husband, to secure pay- 
 ment of a debt which is her separate property due 
 from the husband. While this is true, such a claim, 
 sought to be enforced by attachment, should be 
 closely scrutinized, to guard against fraud and col- 
 lusion between husband and wife to defeat creditors. 
 
 During coverture she cannot dispose of the 
 community without his consent; her mortgage 
 thereof even as to her interest is void in California, 
 though if she survives her husband it may be en- 
 forced against her. With her husband's death her 
 rights spring into activity, and she has all the powers 
 of a feme sole over her interest ; so, under the vari- 
 ous statutes she may, for cause, have a separation 
 of property, a partition of the community, or may 
 be awarded alimony out of it, or may have a divorce 
 with a division of the property. So if her husband 
 abandons her and refuses to support her, her rights 
 over the community quicken into vigorous activity; 
 she may deal with it in his place, and she may even 
 in her own name convey real estate standing in his 
 name, so that subsequent bona fide purchasers from 
 him will get nothing. 
 
 257
 
 WOMAN UNDER THE LAW 
 
 The survivor has at least one-half of the com- 
 munity property after all the community debts aie 
 paid, the community property being a primary fund 
 for the settlement of community debts. The sur- 
 vivor may generally settle up the community with 
 or without statutory authority, and with or without 
 going into court. The survivors or the heirs of the 
 deceased can assign their respective interests, but 
 not by metes and bounds, as dissolution of the mar- 
 riage turns the community into tenancy in com- 
 mon. Either spouse may by will dispose of such 
 part of the community as would go to his or her 
 representatives, but neither can by w^ill affect the 
 interests of the other. A married woman may dis- 
 pose of her property by w^ill, subject to the liability 
 of her community property for the payment of com- 
 munity debts. In Louisiana the surviving wife may 
 enjoy the use of the community during w^idowhood, 
 and the survivor has a usufruct of so much of the 
 community as may be inherited by his or her issue 
 proceeding from the marriage. 
 
 Upon the death of either spouse the heirs of 
 the deceased take one-half of the community prop- 
 erty subject to the payment of community debts, 
 the survivor's homestead rights, and the survivor's 
 right of administration. The heirs of the wife be- 
 come vested with a title to her share of the com- 
 munity property at the moment of her death; and 
 though they receive it subject to the payment of the 
 commiunity debt, they are bound to await a liquida- 
 tion of the community before resorting to an action 
 to recover it. Nor, in such action, petitory in its 
 character, is the indebtedness of the community, or 
 its financial condition when dissolved, a legitimate 
 subject of inquiry. As has been often said, heirs 
 take community property charged with the debts 
 against it; and if it be sold by the survivor for the 
 
 258
 
 COMMUNITY PROPERTY 
 
 purpose of paying community debts, or for the pur- 
 pose of reimbursing the survivor for separate means 
 used in discharge of such debts, then the purchaser 
 will be protected in his purchase. 
 
 On the death of the wife her interest in the 
 homestead descends and invests in her heirs, sub- 
 ject to administration and to the right of the hus- 
 band to wind up the community affairs. This right 
 of the husband must be limited chiefly to paying 
 the community debts, and a purchaser from him 
 does not acquire the interest of the children of the 
 marriage when there were no debts of the commu- 
 nity to be paid. A sale to support the children will 
 not be sufficient to pass title to their interest in the 
 homestead. 
 
 In Louisiana a child cannot, since the passage 
 of the laws of 1884, sue for her deceased father's 
 community interest while her mother remains a 
 widow. 
 
 Where a wife dies seised of community estate, 
 and leaving children, her interest in such commu- 
 nity estate descends to and vests wholly in her sur- 
 viving children, to the exclusion of surviving grand- 
 children whose parents died before the ancestress 
 did. 
 
 Upon the death of either spouse the heirs may 
 apply to the court to restrain the survivor from 
 w^asting or improperly disposing of the property, 
 after the surviving husband has regularly filed his 
 inventory. If it appears that he is about to waste 
 the property, the heirs may apply to the court and 
 have their rights protected. 
 
 In Louisiana the heirs may accept or renounce 
 the succession. The heirs also have a claim for any 
 separate property of the deceased which has been 
 taken into the community or by the survivor. 
 
 The community property is liable for the wife's 
 
 259
 
 WOMAN UNDER THE LAW 
 
 ante-nuptial debts, but not on any contract of hers 
 made during coverture, except for necessaries. The 
 community property is liable for the sole debt of 
 the wife contracted before marriage ; and it has been 
 held that interest paid on a stock loan which was a 
 personal debt of the wife was chargeable to the com- 
 munity. The property is likewise liable for all ante- 
 nuptial and post-nuptial debts of the husband ; as he 
 can dispose of it absolutely, he can absolutely 
 charge it with his debts. 
 
 As an entirety, it is not liable for any debt con- 
 tracted after dissolution of the marriage. All the 
 debts for which it is liable must be settled before the 
 survivor or the heirs of the deceased have person- 
 ally any interest. 
 
 In Louisiana if the widow^ accept the commu- 
 nity, she or her estate is liable for one-half of the 
 debts, but if she renounce the same, neither she 
 nor her estate can be held liable at all. A judgment 
 against both husband and wife can be enforced 
 against the community property or against the sepa- 
 rate property of either one; but if a mortgage has 
 been given for the husband's debts, w^hich covers 
 both community property and separate property of 
 the wife, she may have the community property ex- 
 hausted first. 
 
 Where a judgment is recovered against hus- 
 band and wife jointly without any specific direc- 
 tions in the decree as to the estate out of which it is 
 to be satisfied, it w^ould seem that, as a general rule, 
 it may be levied upon and be satisfied out of the 
 property of either the husband or wife or of the 
 community. 
 
 Judgment creditors cannot have a part of the 
 community property set aside by metes and bounds 
 to satisfy their debts. 
 
 260
 
 COMMUNITY PROPERTY 
 
 If by the terms of a trust deed the separate 
 property of a wife be liable, all community property 
 which is subject to the Scime lien must be exhausted 
 before the separate property of the wife can be 
 taken. 
 
 In a foreclosure suit against the community 
 the wife should be made a party. 
 
 261
 
 CHAPTER IX. 
 
 DOWER 
 
 Dower at common law is the life estate of a 
 wife in one-third of all the legal estates of inherit- 
 ance of which her husband is seised at any time 
 during coverture, and which any issue of theirs 
 might directly inherit. It has three stages, namely : 
 
 ( 1 ) its inchoate stage, extending from the time 
 of the marriage, or the acquisition of the property 
 in question, to the time of the husband's death; 
 
 (2) its consummate stage, extending from the 
 death of the husband; and (3) its assigned stage, 
 extending from the time it is set off to the widow^. 
 
 The word "dower" both technically and in 
 popular acceptation, has reference to real estate ex- 
 clusively. At first dower is said to have consisted 
 of personalty; but at a later period, not distinctly 
 ascertained, it became solely an interest in lands. 
 The portion of land allotted as dower likewise 
 varied at different times, consisting of one-fourth, 
 one-tenth, and one-half, before it became settled at 
 one-third for life. This was due to English statutes, 
 which, as a part of the common law, were generally 
 adopted in the United States. 
 
 fThe custom of conferring upon a widow for 
 life a portion of her husband's property, or allowing 
 her dower, is universally conceded to be of great 
 antiquity; — so ancient, that neither Coke nor 
 Blackstone could trace it to its source. It is said on 
 the one hand to be of German origin , while on the 
 
 262
 
 DOWER 
 
 other hand its introduction is ascribed to the Nott-. 
 mans as a part of their local tenure. 
 
 The provision of the common law entitling the 
 wife to dower in her husband's lands was intended 
 for the sure and competent sustenance of the 
 widow, and the better nurture and education of her 
 children. Courts have always highly favored the 
 widow's claim for dower. It is a legal, equitable 
 and moral right, and next to life and liberty held 
 sacred. 
 
 In order that the wife's right to dower may be 
 consummate, vested and absolute, the husband's 
 death must occur before hers, and it must be natural 
 death; civil death will not give dower, nor is an 
 absolute divorce the equivalent of death in this con- 
 nection. No dower rights can attach to property 
 before the husband is seised thereof; a mere right 
 of entry into land held by another under claim of 
 title was not enough. Wrongful seisin is generally 
 sufficient to give the wife dower as against her hus- 
 band's heirs and assigns. The husband's seisin 
 must be beneficial, and he must be seised for his 
 pw^n use. To illustrate: — A wife has no dower in 
 lands held by her husband as administrator or trus- 
 tee; but if the seisin be beneficial, it matters not how 
 short a time it lasts. Still, if in one transaction, 
 though by diflFerent deeds, the title passes in and out 
 of the husband, as when property is purchased and a 
 mortgage given for the purchase money, the seisin 
 is merely transitory, and no right to dower attaches. 
 The seisin must be sole and not joint; there is no 
 dower in joint estates, though there is in estates in 
 common and in coparcenary, but if the joint estate 
 is destroyed by any other means than the husband's 
 assignment, dower attaches. 
 
 The seisin must be the immediate seisin of the 
 inheritance. 
 
 263
 
 WOMAN UNDER THE LAW 
 
 The seisin must exist at some time during 
 coverture, but it need not, except by statute, exist 
 at the husband's death. If the husband gives a bond 
 of conveyance before marriage and convey in ac- 
 cordance therewith after the marriage, the second 
 conveyance dates back to the time of the bond anH^ 
 there is no dower. 
 
 Dower attaches to all hereditaments, corporeal 
 or incorporeal, w^hich savor of the realty. It at- 
 taches therefore to mines already opened, whether 
 they have been abandoned, closed or not; but the 
 widow^ cannot open mines. She may have dower 
 in wild lands ; in land covered with w^ater ; but there 
 is no dow^er in shares of stock in corporations, gen- 
 erally; and none in annuities not charges on land, 
 and none in grass, fruits, and spontaneous produc- 
 tions of the soil grow^ing at the husband's death. 
 By statute there was dower in slaves. 
 
 -AbsoliLtfi—Xeetsimple- estates are subject to 
 dow^er. Estates in remainder or reversion expectant 
 on a freehold are not subject to dower, but those 
 expectant on a leasehold are. Estates in common, 
 and in coparcenary are subject to dower, but joint 
 estates are not. There is no dow^er in bare legal 
 estates, or in equitable estates at common law, or in 
 partnership estates or in estates for years, or in 
 estates at w^ill, or in estates of preemption. 
 
 At common law dower attached only to legal 
 estates; the husband, as has been seen, had to be 
 seised of the legal title. All kinds of uses and trusts 
 were, therefore, exempt from dower, such as trusts 
 created by deed or w^ill, equities of redemption, and 
 lands paid for but not formally deeded. The com- 
 mon law^ rule still prevails in Connecticut, Dela- 
 ware, Florida, Georgia, Maine, Massachusetts, 
 Michigan, New Hampshire, Oregon, South Carolina, 
 Vermont and Wisconsin. In Pennsylvania this rule 
 
 264
 
 DOWER 
 
 has never existed. It has been abolished by implica- 
 tion in Arkansas, and expressly in England, Ala- 
 bama, Illinois, Kentucky, Maryland, Missouri, New 
 Jersey, New York, North Carolina, Ohio, Rhode 
 Island, Tennessee, Virginia and West Virginia. 
 
 Statutes giving dower in equitable estates are 
 remedial, and are applied to estates owned by the 
 husband before the passage of the statute, if the 
 rights of third persons have not intervened. In 
 Massachusetts dower is given in equities of redemp- 
 tion, and in property in which the husband has a 
 complete equitable title. 
 
 Equitable estates must be distinguished from 
 equitable rights, for even under the above statutes, 
 there is no dower in a mere right. Therefore, to 
 entitle the v/ife to dower, the husband's equity must 
 be perfect and complete, — an interest which would 
 pass to his heirs, and not a mere right of action 
 which would pass to his personal representatives. 
 Thus, there is dower in land which a husband has 
 bought and paid for, but the deed to w^hich he has 
 lost before recording it. And it must be such an 
 equitable title that equity would decree the legal 
 title, other rights not conflicting, and not a mere 
 moral right depending upon an unenforceable con- 
 tract or trust. The question has repeatedly arisen 
 in cases where the husband had not completed a 
 purchase at the time of his death, but had paid a 
 part or the whole of the purchase money; and in 
 such cases the wife's right to dower depends very 
 much upon the terms of the contract. To illustrate : 
 When the husband has paid all the purchase money 
 and is entitled to a deed, and could in equity obtain 
 a decree of specific performance, the wife is entitled 
 to dow^er; and when none of the purchase money 
 has been paid she has no dower. But there is con- 
 siderable dispute as to the effect of a part-payment 
 
 265
 
 WOMAN UNDER THE LAW 
 
 of purchase money. Some cases hold that all the 
 purchase money must be paid. The true rule seems 
 to be that if the terms of the contract give the hus- 
 band the right to the property only after the pay- 
 ment of all the purchase money, his wife can have 
 no dower unless all the purchase money is paid ; but 
 when he has taken possession of the property after 
 a part payment, and the vendor has retained the title 
 only as security, or has relied on his lien for the pur- 
 chase money, the wife has dower subject to the 
 vendor's rights. 
 
 Dower in equitable estates differs from dower 
 in legal estates, generally, in that the husband must 
 die seised of the former to entitle his wife to dower. 
 This seems to be the general rule under the statutes. 
 If he has aliened an equitable estate, his wife not 
 consenting to the deed, absolutely or by mortgage or 
 other incumbrance, he has defeated dow^er abso- 
 lutely or, pro tanto. And a legal title acquired by 
 the husband after he has so disposed of, or incum- 
 bered the equitable estate inures to the benefit of the 
 assignee, and does not perfect dow^er. 
 
 It has been a much vexed question whether 
 and to what extent dower exists in partnership real 
 estate. Some cases hold that partnership real estate 
 is personalty, and that there is, therefore, no dower 
 therein at all; others hold that real estate is real 
 estate though owned by a partnership, and is there- 
 fore fully subject to dower. But the true rule seems 
 to be that realty bought w^ith partnership funds or 
 for partnership purposes is realty at law subject 
 to dow^er, just as if the partners were tenants in 
 common, unless the terms of the partnership agree- 
 ment declare it to be personalty; but that in equity 
 it is subject to a trust in favor of the partnership 
 creditors and of any of the partners with a balance 
 due him, this trust being paramount to any dower 
 
 256
 
 DOWER 
 
 claims, and there being no dower if the property ia 
 needed to pay the firm creditors, or to pay any part- 
 ner a balance due him; but there being dower, if 
 the property is not needed for such purposes, or in 
 the surplus, if it be so needed, only in part; pro- 
 vided, however, that if the property is sold under 
 the partnership equitable lien during coverture, as 
 in the case of the enforcement of other paramount 
 liens, dower is defeated; and that the wives of the 
 partners do not have to join in any deed of the 
 partnership property, or be made parties to any suit 
 when the partnership property is foreclosed or 
 otherwise attacked by the partnership creditors. If 
 there is an express agreement that the realty of the 
 partnership shall be used for paying the debts of 
 the firm, the property is undoubtedly subject to the 
 trust above described. It is well settled that such an 
 agreement is always implied, so that the property 
 vests in the partners subject to an equitable lien, 
 which is, therefore, prior to dower. If the lands are 
 sold under the partnership lien, the widow has no 
 dower in rents and profits accruing before the sale. 
 The realty must, of course, be partnership property 
 or it w^ill be subject to dower as any other realty. If 
 bought by the partners, it is prima faci e partnership 
 property; it is such property if bought w^ith part- 
 nership funds, or for the use of the firm; but it is 
 not, if bought for and charged to one partner, or, 
 if taken in common by express agreement. 
 
 Where land, which would in ordinary circum- 
 stances be subject to dower, has been mortgaged, a 
 mortgagee's interest is personalty, and his wife can 
 have no dower in the property, unless he has per- 
 fected his title thereto by foreclosure during his life. 
 The mortgagor's interest, on the other hand, until 
 default or foreclosure, is, generally, under the terms 
 of the usual mortgage, a legal estate on condition, 
 
 267
 
 WOMAN UNDER THE LAW 
 
 and his wife takes dower subject to defeasance by 
 breach of condition. After default the mortgagor 
 has, generally, only an equitable title or estate called 
 an equity of redemption, and at common law there 
 w^as no dower in equities of redemption or in any 
 other equitable estates; but now, as has been seen, 
 equities of redemption are subject to dower. This 
 applies, of course, to only such mortgages as are 
 paramount to dow^er; that is, w^hether the land was 
 bought subject to the mortgage, or the mortgage 
 was made by the husband before marriage or after 
 marriage without her joinder, as a part of the trans- 
 action that vested the property in him. If the 
 mortgage is made after marriage without the w^ife's 
 joinder to release her dower, she has her dower as 
 if the mortgage had not been made, as she w^ould if 
 the property had been conveyed absolutely and not 
 by way of mortgage. 
 
 Where the wife has her dower in mortgaged 
 land subject to defeasance by breach of condition, 
 or has dow^er in the equity of redemption, and her 
 husband dies w^ithout default and foreclosure, she 
 may be endowed out of the lands and hold them 
 until default and foreclosure. But if there has been 
 default and the mortgagee has taken possession the 
 widow cannot disturb him and have dower, but she 
 has certain rights in case of redemption or a fore- 
 closure sale. 
 
 Where the husband dies seised of the equity of 
 redemption and the mortgage is in default, the 
 widow^ may require his personal representatives to 
 redeem out of the assets of the estate, and she need 
 not contribute; if there are not enough assets to 
 pay the whole debt the personal representatives 
 must pay as much as they can, and save the widow's 
 do"wer as far as possible. 
 
 If the husband during his life has assigned the 
 268
 
 DOWER 
 
 equity of redemption, there are no decisions to the 
 effect that the widow can require the assignee to 
 redeem; still, if the assignee does redeem and the 
 widow contributes her proportion, she has her 
 dower. But if the assignee redeems during the hus- 
 band's life, the widow has her dower without any 
 contribution. The widow's share for contribution 
 is the interest on one-third the amount paid for 
 redemption during her life or the equivalent thereof. 
 
 The widow may herself redeem, but she must 
 pay the whole debt, unless the mortgagee will accept 
 a contribution and release her dower interest; this 
 is important because if she does pay the whole it is 
 doubtful whether she can require contributions 
 from those holding under her husband. 
 
 If the mortgagee buys in the equity of redemp- 
 tion, or if the holder of the equity buys in the mort- 
 gage, though a merger is thereby created, as far as 
 the widow and dower are concerned it is treated as 
 a redemption. 
 
 If the husband, or anyone for him, pays off 
 the mortgage, there is dower as if no mortgage ever 
 existed. 
 
 If the mortgage is foreclosed during coverture 
 the land is turned into personalty under a lien para- 
 mount to dower, and dow^er is gone. But some 
 courts have held that, on account of her inchoate 
 right, the wife must be a party to the foreclosure 
 suit, and that if there is a surplus, dow^er therein 
 w^ill be set aside and kept for her. If the mortgage 
 has been foreclosed after the husband's death, or 
 the fund has not been distributed at the time, the 
 widow has dow^er in the surplus, and if there is no 
 surplus, dower is gone. Foreclosure destroys all 
 the widow^'s rights in the property mortgaged, but 
 the vsndow should be made a party to the suit. 
 
 As a general rule, every kind of lien for the 
 
 269
 
 WOMAN UNDER THE LAW 
 
 purchase money of land is superior to a wife's right 
 of dower therein. If a vendor retains the legal title 
 to the land as security, this is superior to dower; 
 and so is his equitable lien superior, in places where 
 such liens are recognized, though he has parted with 
 the legal title; unless the vendor has taken other 
 security, in which case the vendor's lien is, in the 
 absence of express agreement, gone. So that, even 
 if he obtains judgment against the purchaser for 
 the purchase money, he thereby loses his equitable 
 lien, and the judgment is secondary to the dower. 
 
 If the vendor takes a mortgage for the pur- 
 chase money, it is almost universally admitted that 
 such mortgage is superior to dower, though not 
 signed by the wife. And if a third party lends a 
 purchaser the purchase money and takes a mort- 
 gage therefor, he has the same right superior to 
 dower that the vendor himself w^ould have had if the 
 mortgage had been taken by the vendor. It is essen- 
 tial that the payment of the purchase money and 
 the giving of the mortgage should be part of one 
 and the same transaction. 
 
 Whether the vendor reserves his lien or takes 
 a mortgage, very nearly the same rights result, and 
 the rules applicable to dower in mortgage property, 
 the mortgage being superior to dower, apply. Thus, 
 the wife has dow^er against all persons, except the 
 mortgagor or vendor, or assigns. She may have 
 dower till the claim of such parties is asserted. If 
 the lien is discharged by payment, she has dower 
 in the land. After her husband's death she may 
 call upon his personal representatives to satisfy the 
 lien, or have the other realty exhausted for this pur- 
 pose. If the lien is enforced during her husband's 
 life, her dower is gone; if after his death, she has 
 dower in the surplus. In any case the purchaser 
 takes the land free of dow^er. The vendor's lien is 
 
 270
 
 DOWER 
 
 on the land, not on the rents and profits. The hus- 
 band may reconvey the land to the vendor in satis- 
 faction of the lien, provided that this is not done to 
 defeat the wife's rights. 
 
 Dower is a mere inchoate right from the time 
 of the marriage, or of the vesting of the property if 
 the property were acquired after the marriage, until 
 the death of the husband at common law; or under 
 statutes, until the time of divorce, the husband's 
 bankruptcy, etc. It is a wife's right to such part of 
 her husband's lands as the law at the time of his 
 death, or of the alienation, if he has aliened it, may 
 allow her. It is not a vested right, and the legisla- 
 ture may change it ; it is a contingent right, and does 
 not rise to the dignity of an estate. 
 
 But inchoate dower is a valuable right, and has 
 many of the incidents of property. Though some 
 cases say it has no present value, others say that its 
 present value can be computed; it is a valuable 
 consideration for a conveyance to a w^ife, and she 
 may maintain an action for its protection, or file a 
 bill for the redemption of a mortgage covering it; 
 and in some states, she must be a party to any suit 
 affecting it. Still it cannot be bargained and sold, 
 but only released to the tenant; nor can it be taken 
 in execution; nor can the statute of limitations 
 apply to it. 
 
 Though it has at times been questioned 
 whether inchoate dower is an incumbrance, that it 
 is, is now^ settled ; it comes within a covenant against 
 incumbrances, and is such an incumbrance as would 
 justify a vendee in refusing to carry out his con- 
 tract. 
 
 At common law, on the husband's death and 
 under statutes, on divorce, the husband's bank- 
 ruptcy, etc., dower is consummate. It is not an es- 
 tate, but a mere right of action growing out of land, 
 
 271
 
 WOMAN UNDER THE LAW 
 
 — the right to have dower assigned. The widow is 
 not seised of the land in which she has such right; 
 she cannot hold possession of such property, except 
 by the law of quarantine. She has no right of entry 
 as against the tenant; she cannot maintain eject- 
 ment, sue for trespass or proceed for partition; she 
 cannot oppose the entry by the husband's heirs, 
 and in many states she need not be made a party 
 to a proceeding against the land. She cannot bar- 
 gain and sell it at law^ ; nor can it be seized in execu- 
 tion by her creditors; but she can transfer it in 
 equity, and in equity it can be charged with her 
 debts. She cannot mortgage or lease it, but she 
 can release it to the tenant ; and being s ui juris, she 
 can accept an aw^ard in its place. It is, however, an 
 encumbrance, and an adverse claim against the 
 land. 
 
 After assignment of dow^er and entry by the 
 widow, she is seised of a freehold for her life, and 
 her estate has generally the incidents of a conven- 
 tional life estate. She may alien her estate, and it 
 is liable for her debts ; she may lease it, and the back 
 rent belongs to her representatives in case of her 
 death. She must pay the taxes and charges upon 
 the property assigned to her for dower; she is en- 
 titled to reasonable estovers; she has a right to all 
 crops growing on the property at the time of the 
 assignment; her representatives are entitled after 
 her death to all crops sown by her ; on her death the 
 estate ceases, and her representatives cannot claim 
 betterments put on the property by her. She takes 
 the property subject to all liens paramount to 
 dow^er, but free from all others Her possession is 
 not adverse to the reversioner. In various ways she 
 may forfeit her estate, as by w^aste, in Delaware, 
 Illinois, Kentucky, Maine, Minnesota, Missouri, 
 New Jersey, New York, North Carolina, Ohio, and 
 
 272
 
 DOWER 
 
 Rhode Island; but the strict common law rule as 
 to waste is not enforced in the United States, and 
 the widow^ may make any reasonable use of the 
 dower estate. 
 
 As has already been seen, even inchoate dower 
 is an encumbrance or lien on the property subject 
 thereto. As a lien or incumbrance it is inferior to 
 all liens attaching prior to the marriage or to the 
 acquisition of the property by the husband, and to 
 all other liens attaching with the legally given con- 
 sent of the w^ife; but it is superior to all liens at- 
 taching during coverture w^ithout such consent ; ex- 
 cept where statutes give the husband power to 
 destroy dower by his sole act. As a general rule, 
 if the property is sold under a superior lien during 
 coverture, the realty is converted into personalty, 
 and dower is lost; but if sold after the husband's 
 death, dower is awarded out of the surplus. If a 
 superior lien is satisfied, dower exists as if such 
 superior lien never had been. Any sale under an 
 inferior lien must be subject to dower. 
 
 A widow may have no right to dower either 
 because the right never attached, or because after 
 attaching it was destroyed ; the right may be barred 
 or defeated; a general glance over the various 
 modes of barring and defeating dower, and a sepa- 
 rate discussion of each w^ill be helpful. Though it 
 is extremely difficult to lay dow^n any general rule 
 which might not mislead, the following statement 
 is substantially correct: The husband may avoid 
 the inconvenience of dower by taking such a title 
 in himself that the requisites of dow^er will not exist, 
 or by changing his tenure before marriage for the 
 same purpose; but this must not be done secretly, 
 or it will be a fraud on the wife ; so he may prevent 
 dower by making a settlement before marriage, in 
 accordance with the Statute of Uses or similar acts, 
 
 273
 
 WOMAN UNDER THE LAW 
 
 by legal jointure. After marriage and acquisition 
 of his property, he can, in most states, do nothing 
 to relieve it of dower without his wife's consent; 
 but he can make a provision for her by deed or will 
 in lieu of dower, — an equitable jointure, — ^by the 
 acceptance of which after his death she will be bar- 
 red of dower. The wife may prevent dower by 
 covenanting before marriage never to claim it. Dur- 
 ing coverture she may release it by complying with 
 the statute ; and after her husband's death she may 
 bar herself by any agreement she may make, or by 
 accepting any provision in its stead, or by any con- 
 duct which would make it inequitable to claim it, or 
 by her laches or delay. So dower may be defeated 
 by operation of law, as when the husband's estate 
 terminates or is converted into personalty by legal 
 proceedings during coverture, or when the realty is 
 taken during coverture, by right of eminent domain, 
 or when the husband and wife are absolutely 
 divorced. 
 
 By the common law, no provision or settle- 
 ment made by a man before his marriage in favor 
 of his future wife could bar dower, but the Statute 
 of Uses gave this effect to a specified kind of settle- 
 ment called a legal jointure. This statute was 
 adopted in the United States as a part of the com- 
 mon law. Nor at common law could a woman be 
 bound by any ante-nuptial agreement not to claim 
 dower. And even now^, except under the express 
 provisions of some statute, no settlement or agree- 
 ment between husband and wife is at law a bar to 
 dower. 
 
 But in equity any provision in lieu of dower 
 accepted by the widow is an equitable jointure and 
 bars dower, and ante nuptial covenants of a woman 
 not to claim dower have always been enforced. 
 
 274
 
 DOWER 
 
 Legal and equitable jointures are discussed further 
 on in this chapter. 
 
 At common law any agreement between hus- 
 band and wife was void and a married woman had 
 no power to contract even in equity, except as to her 
 equitable separate property; later, statutes gave a 
 married woman, in some states, the capacity to con- 
 tract as to her statutory separate property. But 
 dower is a common law estate of a wife, and is not 
 either equitable or statutory separate property ; and 
 the only way in which a wife can during coverture 
 bar or defeat her dower is by complying strictly 
 with statutes relating to the release of dower, dis- 
 cussed later, or by acting under the full capacity to 
 contract accorded women by the statutes of a few 
 states. 
 
 When the question arises as to the validity of 
 a release to the husband under one of these statutes, 
 which authorizes releases generally, it must be re- 
 membered that in dealing with her husband a wife 
 is said to be under a double incapacity that of wife 
 and that of married woman, and that it is fairly 
 settled that, under a statute authorizing a married 
 w^oman to contract generally, she cannot contract 
 with her husband. Accordingly, it has been held 
 that a release of dower under a statute directly to 
 the husband is void. Even when the wife is author- 
 ized to contract, any agreement between them has 
 been held to be void. 
 
 But, granting the capacity of a husband and 
 wife to contract together, there is nothing in the 
 nature of dower to prevent the enforcing in equity 
 of an agreement of a w^ife otherwise valid not to 
 claim dower. 
 
 And any provision made by a husband for his 
 wife during coverture in lieu of dower puts her to an 
 election to take it or dower. If, after the husband's 
 
 275
 
 WOMAN UNDER THE LAW 
 
 death, she accepts such a provision, she bars herself 
 of dower ; but if she has received the provision dur- 
 ing his life and has spent or wasted it, she may take 
 dower as if it had not been made ; it is necessary in 
 order to estop her that she should have enjoyed the 
 provision, in part at least, after her husband's death. 
 This question sometimes arises in cases of deeds of 
 separation. 
 
 Any incumbrance placed upon a husband's 
 property before his marriage may defeat dower to 
 that extent and a husband may prevent dower from 
 attaching by alienating his property, or by chang- 
 ing property which would be subject to dower into 
 property which is not. The wife is barred, though 
 the conveyance is not executed or recorded at the 
 time of the marriage, though it is fraudulent as to 
 creditors, if not set aside during coverture. The hus- 
 band's simple agreement to convey is likewise par- 
 amount to dower. But a deed made or a judgment 
 confessed on the day of the marriage is, unless 
 proved to have been made or entered before the 
 marriage, inferior to dower. 
 
 But a secret disposition of property by the 
 husband or change in its form would be a fraud on 
 the wife, and w^ould not affect her dower; and so 
 w^hen dispositions during marriage defeat dower, a 
 conveyance for this purpose alone would be a fraud 
 of the husband on his wife and have no effect as to 
 her. 
 
 As a general rule, how^ever, no act of a hus- 
 band during coverture, without the concurrence of 
 the wife, can defeat dow^er. This was the rule at 
 common law, and is still the rule in most of the 
 United States. But now^ in England and in some 
 states a husband may alone convey aw^ay his prop- 
 erty without his wife's joinder in the deed, and thus 
 defeat dow^er. Such statutes apply only to deeds 
 
 276
 
 DOWER 
 
 of a husband made after their passage ; and a statute 
 enabling a husband to defeat dower by conveyance 
 during his Hfe does not enable him to accomplish 
 this by will. 
 
 Under such statutes as the English statute of 
 1 3 Edward I., ch. 34, a wife may defeat her dower 
 by elopement and adultery; and other statutes may 
 give this result to adultery alone; or to abandon- 
 ment alone; or to other wrongful conduct; but as a 
 general rule, a w^ife can defeat her dower by an act 
 in the nature of a contract, only by pursuing some 
 mode prescribed by some statute, unless her dis- 
 abilities have been entirely removed. The statute 
 of the particular state must be consulted on this 
 point. 
 
 In all states where a husband cannot by his 
 sole deed defeat dower, statutes provide for the re- 
 lease thereof by the wife. But statutes relating to 
 married w^omen's separate property have nothing 
 to do with her dov/er rights. 
 
 The provisions of the statute relating to the 
 release of dower must be strictly complied with; 
 and a release not good at law is not good at all, and 
 cannot be rectified in equity. The release need not 
 be in any particular form, though in many states it 
 must appear that the wife signs for the purpose of 
 releasing her dower, while in others it is sufficient 
 if she join in or execute the deed, which carries all 
 her interest. Until the delivery of the deed she may 
 revoke her release. 
 
 Unless the statute expressly authorizes her to 
 release a loan, her husband must join in the deed 
 with her; the husband must also join in release of 
 dower in a former husband's estate; but the wife 
 need not necessarily execute the deed at the same 
 time with the husband, and where she must join 
 with her husband, it is sufficient if she join with his 
 
 277
 
 WOMAN UNDER THE LAW 
 
 attorney in fact, or with his guardian or committee, 
 if he be insane. But she must execute the release 
 herself; she cannot release by power of attorney, 
 and cannot, perhaps, even leave blanks to be filled 
 up after the execution. An insane wife cannot 
 release dower, nor can an infant wife; nor can a 
 wife's gucirdian release dow^er for her. 
 
 Though a wife is empowered to release her 
 dower by her sole deed it is doubtful whether she 
 can release to her husband. 
 
 The grantee in the release cannot be a mere 
 stranger but only someone who holds in some way 
 under the husband ; for the release operates by way 
 of estoppel and an estoppel must be mutual; in- 
 choate dower, it must be remembered, cannot be 
 bargained and sold, but only released. 
 
 The question of consideration is not im- 
 portant; a wife may reserve a consideration to her- 
 self, but none is implied, and a consideration mov- 
 ing to her husband suffices. 
 
 The effect of a release of dow^er is in the nature 
 of an estoppel, and not of a grant; and as an estop- 
 pel must be mutual, a stranger cannot avail himself 
 of a release of dower; but it can be set up only by 
 the husband's grantee or someone entitled to stand 
 in his place. The wife is not estopped by her release 
 from setting up a subsequent title in herself, or from 
 alleging that it was obtained by fraud. The effect 
 of the release is confined to the property actually 
 referred to, and if a mistake is made in the descrip- 
 tion, she cannot be made to rectify it. Nor does 
 her joining in a release of her dower have any effect 
 on her ow^n property; nor does her conveyance of 
 property in a representative capacity affect her 
 dower interest in the property conveyed. But if she 
 convey in a representative capacity and her indi- 
 vidual capacity also, her dower is gone. If the 
 
 278
 
 DOWER 
 
 release of dower, or the deed in which a wife joins 
 to release dower, becomes inoperative, it does not 
 affect her rights and she has dower as if it had never 
 been executed. 
 
 Jointure, a settlement so called because usually 
 made upon a husband and wife jointly during their 
 joint lives, and after the husband's death on the 
 wife, bars dower at common law under the statute 
 of uses, and in equity under the doctrine of election. 
 A legal jointure is such a provision as under the 
 statute of uses or other statutes bars dower; an 
 equitable jointure is such a provision as requires a 
 widow to choose between it and dower. 
 
 To a strict legal jointure under the statutes of 
 uses, which is in force in the United States as a part 
 of the common law, so far as consistent with 
 modern statutes, the following are the requisites: — 
 ( I ) the provision must consist of an estate or in- 
 terest in land; (2) it must take effect in possession 
 or profit, immediately from the death of the hus- 
 band; (3) it must be for the wife's life, at least; 
 (4) it must be limited to the wife herself, and not in 
 trust for her; (5) it must be made in satisfaction 
 of her whole dower, and must be so expressed in 
 the deed; (6) it must be a reasonable and com- 
 petent provision for the wife's livelihood; (7) it 
 must be made before marriage. 
 
 An equitable jointure is any other provision 
 made for a wife, which puts her to an election, and 
 will, if she accepts it, bar her of dower in equity, 
 independently of statutes. The provision must be 
 expressly in lieu of dower, or the same instrument 
 must make a disposition of some part of the settlor's 
 estate which is clearly inconsistent with the ex- 
 istence of dower therein, so that in claiming dower 
 the widow would defeat, interrupt, or disappoint 
 some provision in the instrument. The provision 
 
 279
 
 WOMAN UNDER THE LAW 
 
 may be made by deed or will. No technical 
 language is necessary, but it is sometimes very 
 difficult to determine whether the provision is in 
 lieu of dow^er or not. Evidence outside the instru- 
 ment is not admissable as to this point. In many 
 states, how^ever, the statutes require the widow to 
 elect betw^een any provision made for her by will, 
 unless it is expressly stated not to be in lieu of 
 dower. 
 
 If, when a wife is barred by legal jointure she 
 conveys away jointly with her husband her jointure 
 lands, she is nevertheless barred of her dower; but 
 if the jointure be equitable only, such a conveyance 
 is no election, and dower may be claimed. If she is 
 evicted from either kind of jointure, she may be 
 endowed of so much of the remainder of her hus- 
 band's lands as may be necessary to make up her 
 loss, provided that she does not get more altogether 
 than she would have had if she had taken dower at 
 first; and she may be so endowed against the hus- 
 band's alienee. 
 
 The wife's estate in her jointure lands is not, 
 like the dower after assignment, a continuance of 
 the husband's estate; the wife takes as purchaser, 
 and, for example, is not entitled to the crop sov^n 
 at the time of the husband's death. 
 
 In certain cases a widow^ (a wife being under 
 contractual disability cannot elect) may be required 
 to elect or choose betw^een her dower and some 
 other provision. If a husband has exchanged some 
 lands for others, his widow must elect to take her 
 dower either in the new or the original lands, and 
 cannot have dower in both. By the statute of uses, 
 a jointure made during coverture puts a widow to an 
 election; and all equitable jointures do this; as do 
 devises in lieu of dow^er; and statutes in most states 
 
 280 
 
 I
 
 DOWER 
 
 require the widow to elect between her husband s 
 will and her legal rights, including dower. 
 
 As to the manner and time of election, it is 
 difficult in the absence of statutes, to lay down any 
 definite rule. But if a particular mode of election is 
 named no other will suffice. If the limited time for 
 election has expired it is usually fatal, though in 
 certain cases equity may extend the time. The 
 election must be made by the widow in person; she 
 cannot elect by attorney; nor if she is insane, nor 
 an infant, unless the statute provides for such cases, 
 can any one elect for her. But, if she elect while 
 insane, she may ratify her act in a lucid interval; if 
 she be an infant, equity will elect for her, or the 
 time for election will be extended till her majority. 
 But where, by statute, her guardian is authorized to 
 elect, her election in person is void. If she die 
 before electing her representatives cannot elect for 
 her. If she marries before electing, it is doubtful 
 whether her husband must join with her. 
 
 The effect of election is to make the widow a 
 purchaser for valuable consideration of the provis- 
 ion taken in place of dower; and though in case, 
 for example, of a devise, her rights are inferior to 
 those of the husband's creditors, they are superior 
 to those of other devisees, — though there is some 
 difference of opinion on this point. And if she is 
 evicted she may, generally, have her dower propor- 
 tionately. If her election be to take dower, the pro- 
 vision made in lieu thereof is deemed a trust fund 
 for those who are disappointed by her taking dower. 
 
 A w^idow's right to dower depends upon the 
 law of the place where the land lies, and her election 
 under a statute affects, in general, only the lands to 
 which such statute applies — the lands within the 
 state. 
 
 During coverture a w^ife cannot estop herself 
 
 281
 
 WOMAN UNDER THE LAW 
 
 from claiming dower, except by a release duly ex- 
 ecuted. But after her husband's death she is sui 
 juris, and may lose her estate by estoppel just as any 
 other person may. 
 
 Adverse possession of the husband of his lands 
 during coverture cannot bar the wife's dower, as 
 her interest becomes vested only on his death. And 
 for various reasons, statutes of limitations have 
 been held not to apply as against a widow's claim 
 for dower, though in some states the statutes do so 
 apply. 
 
 If a husband's lands are taken by right of 
 eminent domain, dower is defeated, and a husband's 
 voluntary dedication thereof to public uses has the 
 same effect. If the right of eminent domain is in 
 force during coverture, no allowance will, in gen- 
 eral, be made for inchoate dower, but if the property 
 is taken after the husband's death, dower will be 
 allowed out of the damages. 
 
 Where a husband holds or has held a de- 
 feasible title, and it is defeated, as where he or his 
 heirs are evicted by title paramount, or a determin- 
 able estate, and it is terminated as a base fee, the 
 wife's dower also terminates, as her estate is but a 
 continuation of her husband's; the possible excep- 
 tion to this rule being the case of an estate determin- 
 able on the conditional limitation or executory 
 devise. 
 
 Under various circumstances, suits may be in- 
 stituted for the sale of land in which a wife has 
 dower. If the sale takes place under a right sub- 
 sequent to dower, dower is not affected thereby; 
 but if the sale takes place under a lien prior to 
 dower, dower in the land is defeated, though the 
 wife may have dower out of the net proceeds if the 
 sale takes place after the husband's death. 
 
 Whether in such suits the effect upon dower 
 
 282
 
 DOWER 
 
 depends upon whether the wife or widow be a party 
 to the suit, seems to depend rather upon local prac- 
 tice and local statutes than upon any settled prin- 
 ciple. But it is permissible to make all persons in- 
 terested in a piece of land parties to suits relating 
 thereto; and as in some states dower would not be 
 affected at all if the wife were not made a party, it is 
 better always, when dower might attach, to make 
 the wife a party. 
 
 A divorce a mensa et thoro does not bar dower, 
 but a divorce a vinculo matrimonii , in the absence 
 of statute, does, even though granted by a foreign 
 court, if it be extra-territorially valid. 
 
 The husband's bankruptcy defeats dower only 
 in cases where his voluntary assignment w^ould have 
 this effect, and usually the assignee in bankruptcy 
 holds the bankrupt's lands subject to the wife's 
 dower. It is not a part of the assignee's duty to try 
 to save the wife's dower rights; he takes subject 
 to those rights. In some states, on a husband's 
 bankruptcy, the wife is allowed dower at once as if 
 he were dead. 
 
 Upon the husband's death, as has been seen, 
 dow^er becomes consummate, and is a vested right; 
 but the widow has no right to enter upon her dower 
 land, and no estate of dower until her dower has 
 been assigned to her. She may remain in the family 
 dwelling until dower is assigned; at common law 
 the widow may remain in the family home or man- 
 sion of her husband for forty days after his death, 
 and similar provisions exist in the statutes of most 
 of the states — this is called her quarantine ; and she 
 has the right to have dower assigned as soon as 
 practicable, the period being usually fixed by 
 statutes. 
 
 The tenant of the freehold must assign dow^er, 
 though by statute this duty has been placed upon 
 
 283
 
 WOMAN UNDER THE LAW 
 
 others, such as the husband's executor, or a tenant 
 for years. And whoever is compellable by writ to 
 assign dower, may assign it without writ, and vice 
 versa. 
 
 The tenant assigning need not have a good 
 title, his act being ministerial only; and the party 
 with the true title will be bound if the assignment 
 were of common right, and be bound until he avoids 
 it, if the assignment were against common right. 
 
 Even though an infant, the tenant must assign, 
 and a guardian may make the assignment. But in 
 case of assignment compelled by writ, it is made 
 by the sheriff or other officer of court. 
 
 The person who is bound to make the assign- 
 ment of her dower to the widow^, may do so without 
 legal proceedings, under the common law; and an 
 assignment so made, if fair and just, will be as valid 
 as one made under a decree of court. He may either 
 set off to her by metes and bounds one-third of the 
 husband's lands and tenements, or one-third interest 
 in his incorporeal hereditaments, thus giving her 
 exactly what she is entitled to; and this is called an 
 "assignment of common rights. " Or he may, by 
 an agreement w^ith her, set off to her some portion 
 of the husbands lands and hereditaments in lieu 
 of what she is strictly entitled to; and this is denom- 
 inated an "assignment against common rights." 
 
 The effect of the two kinds of assignment, of 
 and against common rights, is not the same. If it 
 be an assignment of common right, it is binding 
 though made by a w^rongful tenant; the widow 
 holds the property clear of all incumbrances inferior 
 to dovs^er, and if it be taken from her under prior 
 incumbrances, she may be endow^ed anew^ out of the 
 balance of the estate. Whereas an assignment 
 against common rights is not binding unless made 
 by the rightful tenant, the lands are liable for the 
 
 284
 
 DOWER 
 
 husband's debts, and if she loses any part of them, 
 she cannot be endowed anew. 
 
 The assignment may be made without writing, 
 for the widow's right is not thereby created but only 
 ascertained. 
 
 At common law the legal remedy to enforce 
 the right to dower was by a writ of dower, under 
 which judgment being obtained, dower is assigned 
 by the sheriff, and then the widow may obtain pos- 
 session by ejectment proceedings. The common 
 law remedy is practically obsolete. 
 
 Under modern statutes the methods of assign- 
 ing dower at law are so varied that discussion of 
 them would be very unsatisfactory; the statutes 
 themselves should be consulted, and in most cases 
 will be found very plain and simple; if not clearly 
 understood, however, of course, a lawyer should be 
 consulted. 
 
 In equity, jurisdiction was first taken to assign 
 dower in cases in which discovery was prayed; and 
 then this jurisdiction was extended, principally be- 
 cause dower can be assigned by the same machinery 
 w^hich is used in partition suits and in settling ac- 
 counts, until it became commonly concurrent with 
 the jurisdiction of law. 
 
 When dower in equitable estates is to be 
 awarded, equity has exclusive jurisdiction and 
 courts of law are bound to respect an assignment of 
 dower made by a court of equity. 
 
 When the widow^ sues for dower, all interested 
 persons are proper parties, though the only neces- 
 sary party is the tenant of the freehold. The bill 
 should allege substantially the grounds of her right, 
 and if there is no contest the court may proceed at 
 once to make the assignment. If the widow^'s right 
 is contested in equity, it is the practice of the court 
 of equity to delay the case until the right is estab- 
 
 285
 
 WOMAN UNDER THE LAW 
 
 lished at law. All legal defenses are good, but no 
 equitable defense is good against a legal title except 
 that of laches. 
 
 The widow must prove her marriage, and the 
 seisin and death of her husband. 
 
 Costs are in the discretion of the court. When 
 there has been no denial of the widow's rights, she 
 should pay the costs. But when the defendants 
 have delayed her or disputed her rights, the costs 
 should be borne by them. 
 
 Dower may be assigned out of the rents and 
 profits, by metes and bounds, or out of money into 
 which land has been changed. 
 
 As a general rule, whenever the property in 
 which the widow is entitled to dower is capable of 
 division, dower must be set off by metes and 
 bounds. This was the rule at common law, but its 
 application has proved so troublesome that such as- 
 signments are not common, and statutes have pro- 
 vided other means of giving a widow a fair third 
 for her life. When an assignment by metes and 
 bounds is about to be made, the tenant need not 
 have notice. The officer w^ho makes the assign- 
 ment is a mere ministerial agent, and has no power 
 except such as is given him by the writ, and he must 
 strictly conform to the law. His return should 
 report that he has made the assignment by metes 
 and bounds, and should describe with reasonable 
 certainty the property so assigned. If he fails or 
 refuses to act, another may be appointed, and if he 
 acts vexatiously he may be punished. 
 
 In making the division, quantity alone is not to 
 be considered, but the value and productiveness of 
 the land also. Whether improvements are to be 
 considered is hereafter to be discussed. If there are 
 several tracts of land the widow has a right to have 
 her dower assigned out of each, but in some states 
 
 286
 
 DOWER 
 
 if all the tracts are held by the same parties an as- 
 signment for all may be made out of any one, and 
 there are cases which hold that a husband's alienee 
 may compel an assignment out of the tracts not 
 aliened. Assignment may even be made of certain 
 rooms in a house with the use of the halls, etc. But 
 some property is not capable of division, and dow^er 
 must be assigned as a part of the rents and profits, 
 as hereafter shown. Dower may be assigned in 
 estates in common by metes and bounds if such 
 estates have been partitioned or the husband's in- 
 terest assigned to his cotenant, but otherwise the as- 
 signment must be made of a part in common. 
 
 Whenever the property subject to dower is 
 incorporeal, or is in its nature incapable of a fair 
 division by metes and bounds, the widow may be 
 allowed one-third of the actual or estimated profits 
 or rents during her life. 
 
 So that, although a rent cannot be given in 
 lieu of dower when the property is divisible, except 
 by consent, when the property is not divisible, but 
 its value consists of its rents and profits, as in the 
 case of a tavern, a mill, a ferry or a mine, a rent 
 may be given as dower, distrainable as of common 
 right. If the property is not actually leased, it is 
 very difficult to determine what its rents and profits 
 are; the yearly interest on its market value is not 
 always commensurate with its actual producing 
 capacity. If the lands out of which a widow is 
 dowable are sold under a paramount lien, and she 
 is dowable out of the surplus only, dower is usually 
 allowed either in a gross sum or in a life interest in 
 one-third of it. 
 
 When dower is not assigned out of the lands 
 themselves, or out of the actual rents and profits 
 thereof, interest, as has been seen, is sometimes 
 allowed on the estimated value of the proportion 
 
 287
 
 WOMAN UNDER THE LAW 
 
 which might have been assigned as dower, or the 
 value of the widow's life interest may be calculated 
 and given her at once in a gross sum. The power 
 of the court to make an award in a gross sum has 
 been questioned. When, however, the court has 
 this pow^er and desires to exercise it, it considers the 
 chances of life in the widow, and the probable value 
 of her interest, after such annuity tables as it 
 chooses to follow. 
 
 When before assignment improvements are 
 made, the widow is entitled to the benefit thereof if 
 the husband died seised, but not if he had aliened 
 the lands before his death. There seems to be little 
 reason for the distinction, but it is nearly every- 
 where recognized. 
 
 As against the heir or devisee, it is well settled 
 that the widow is entitled to dower as it stands when 
 dower is assigned, including all improvements, ex- 
 cept where statutes provide otherwise. 
 
 As against the husband's alienee, the same 
 rule prevails in England ; but generally in the United 
 States improvements made after the husband has 
 aliened the property are excluded in assigning 
 dower, and either unimproved parts are assigned, 
 or less is included in the assignment. The value of 
 the property is therefore estimated as of the time 
 of the alienation. The time of the alienation is de- 
 termined by the date of the deed, if an absolute 
 deed; by the date of the equity of redemption's 
 passing from the husband in the case of a mortgage, 
 for the widow has the right to improvements made 
 by the husband after the execution of the mortgage 
 but before foreclosure ; and by the date of the bond 
 of conveyance in accordance with which the deed 
 w^as given, in the case of title following a bond of 
 conveyance. The fact of improvements must be 
 pleaded, but not in bar; and the value thereof may 
 
 288
 
 DOWER 
 
 be determined in accordance with the practice of the 
 particular court. 
 
 Improvements are not generally held to in- 
 clude enhanced value due to the improvement of 
 adjacent lands, or to the general prosperity, or to ac- 
 cretions, or to any extrinsic cause; nor do they in- 
 clude mere repairs. But everything added by the 
 money or skill of the alienee is an improvement 
 within the meaning of this discussion; not only 
 buildings erected, fences made, etc., but platting 
 the land and preparing it for a depot, for instance, 
 and crops sown are improvements. And in some 
 states increase in value from whatever cause is 
 regarded as an improvement to be allowed for in 
 awarding dower. 
 
 Depreciation in value of property subject to 
 dower raises questions, just as improvement therein 
 does. If the property has diminished in value be- 
 fore assignment, as against the heir or devisee, 
 dow^er is assigned according to the value of the 
 property at the time of the assignment, and if the 
 heir or devisee has been guilty of waste he is liable 
 in damages. But if the improvements have burned 
 down and the heir or devisee has received the insur- 
 ance money, the widow is entitled to her dower 
 therein. As against the alienee, the value of the 
 land is taken as at the time of the assignment so far 
 as diminution has been due to natural causes, or to 
 waste before the husband's death, but the widow 
 must be allowed for waste after her husband's 
 death. In New York, however, dower is assigned 
 according to the value of the property at the time 
 of the alienation. 
 
 At common law, no matter how much time 
 elapses before the assignment of dower, the widow^ 
 could not recover damages for its detention ; but by 
 the statute of Merton, which has been held in force 
 
 289
 
 WOMAN UNDER THE LAW 
 
 in the United States, she is entitled to the whole 
 value of her dower from the husband's death to the 
 time of the assignment; and similar statutes are in 
 force in several states. But as the usual procedure 
 for dower is now in equity, the right to claim an 
 account has almost taken the place of the right to 
 damages. 
 
 Equity, as has been seen, has full jurisdiction 
 over the assignment of dower and may assign 
 mesne profits, i. e. her share of the rents and profits 
 between the time of the husband's death and the 
 time of assignment, — even when dower has been 
 assigned at law, and this independently of the 
 statute of Merton or any other statute, and as 
 against the husband's alienee as well as against his 
 heir or devisee. But as against the husband's 
 alienee mesne profits are calculated only from the 
 time of demand for an assignment, whereas, as 
 against the heir or devisee no demand is necessary. 
 If the tenant die pending the suit, this does not 
 affect the widow's right to mesne profits; nor does 
 her death pending suit prevent her representatives 
 from recovering the same; but whether her repre- 
 sentatives can recover if she has died without in- 
 stituting suit, has been disputed. A release of 
 dower includes mesne profits, and a widow will not 
 be allow^ed to recover mesne profits if she has mean- 
 while occupied the land, or has been compensated 
 for the delay in the assignment of dower. 
 
 The mesne profits are the actual profits from 
 the date of the husband's death or the time of de- 
 mand, as the case may be, to the time of assignment, 
 — a part of the rent if the property has been leased, 
 a share of the crop, if a crop has been raised, or, if 
 dower has been assigned in money, interest on the 
 amount. 
 
 The assignment of dower gives the widow an 
 
 290
 
 DOWER 
 
 estate, the incidents of which have already been dis- 
 cussed. 
 
 If dower has been assigned without suit, fairly 
 and of common right, it satisfies and bars dower; 
 but if the assignment be against common right, it 
 will not avail as a defence to any party not privy to 
 the agreement. When assigned by suit, the lands 
 not assigned are freed ; but as the widow has a right 
 to a new assignment if the title to the assigned lands 
 fails, it is necessary that one who takes title in lands 
 out of which dower has been assigned should be 
 sure that the widow's title to the lands assigned to 
 her is good. In an assignment, however, the widow 
 may have received either too much or too little. 
 
 In the case of an excessive assignment, if the 
 assignment has been made by an adult without suit, 
 he can have no relief ; but an infant may have a writ 
 of admeasurement of dower in such a case. If the 
 excessive assignment has been made in a suit by the 
 officer of the court, the tenant may by scire facias 
 have an assignment de novo , or may perhaps have 
 the assignment set aside in equity; or he may re- 
 cover in ejectment, lands out of which the judgment 
 gave no right of dower. But if the widow is de- 
 prived of lands once assigned to her as dower, she 
 must be allowed for the improvements made by her 
 in the meantime. 
 
 In case of the failure of the assignment in 
 whole or in part, if the widow^ is evicted after as- 
 signment and thus loses her dower in whole or part, 
 if the assignment were of common right and she had 
 received only her apparent legal rights, she may 
 proceed for a new assignment out of the remainder 
 of the lands subject to dower, as if no assignment 
 had been made. But it seems that at common law^ 
 this rule did not apply as against the husband's 
 alienee. If the assignment were against common 
 
 291
 
 WOMAN UNDER THE LAW 
 
 right and she has agreed to take the lands assigned 
 in Heu of the actual lands she was entitled to, she 
 had no remedy if evicted. 
 
 192
 
 CHAPTER X. 
 CURTESY 
 
 Curtesy is the estate to which by common law 
 a man is entitled, on the death of his wife, in the 
 lands or tenements of which she was seised in pos- 
 session, in fee simple or in tail during their cover- 
 ture, provided they have had lawful issue born alive 
 which might have been capable of inheriting the 
 estate. It is an estate for life created by the law^. 
 When a man marries a woman, seised, at any time 
 during the coverture, of an estate of inheritance, in 
 severalty, in coparcenary or in common, and hath 
 issue by her born alive, and which might by possi- 
 bility inherit the same estate as heir to the wife, 
 and the wife dies in the lifetime of the husband, he 
 holds the land during his life by curtesy. 
 
 That he may be entitled to a tenancy by the 
 curtesy, four requisites must exist; viz., there must 
 be a legal marriage; there must seisin by the w^ife 
 during coverture; there must be issue capable of 
 inheriting the estate ; the wife must be dead. Where 
 an illegitimate child under a statute becomes legi- 
 timate by the subsequent marriage of the parents, 
 the father will be entitled to an estate by curtesy, 
 at the death of the mother, although no other issue 
 was born. 
 
 The marriage must be a lawful one ; though if 
 it be a voidable one, it w^ill give curtesy, unless it is 
 actually avoided during the life of the wife. It can- 
 not be declared void afterwards. 
 
 To entitle a husband to an estate by the cur- 
 
 293
 
 WOMAN UNDER THE LAW 
 
 tesy in the real property of his wife, she must have 
 been seised of it during coverture; but it is not 
 necessary that she should be seised of it at the time 
 of her death, or at the time of birth of issue. A 
 female of full age, owning land, sold it by verbal 
 contract, received the price, put the purchaser in 
 possession, but failed to convey until she became 
 a feme covert and had issue born alive, when her 
 husband united with her in a conveyance to the 
 purchaser. It was held that the husband was not 
 tenant by the curtesy. But if, on the eve of her 
 marriage, a woman should convey her real estate 
 without the consent of the contemplated husband, 
 it is a fraud on his rights and void as to him. 
 
 Although it is undoubtedly the general 
 language of the English authorities that only seisin 
 in fact during coverture entitles the husband to an 
 estate by curtesy, this rule, in its literal strictness, 
 has not been adhered to, either in England or in this 
 country. In order to give a right by the curtesy in 
 the wife's lands, it is not sufficient that the wife 
 w^as seised of an estate of inheritance therein during 
 coverture; she must also have the right to the pres- 
 ent possession of the freehold. 
 
 Without birth of issue, no estate by the curtesy 
 can exist; the child must be born alive; but, even 
 where it dies immediately after birth, the right of 
 curtesy attaches. The child must have been born 
 during the life of the mother. The birth of a child 
 after the mother's death by the Caesarean operation, 
 though it be born alive, is not sufficient to confer the 
 right. It must have been such a child as by pos' 
 sibility might have inherited the estate. 
 
 Where a wife died intestate, leaving children 
 by a former husband, it was held that the surviving 
 husband was entitled to an estate as tenant by the 
 curtesy, in so much of her real estate as would by 
 
 294
 
 CURTESY 
 
 law descend to her children of the second marriage. 
 A father left to his three children each a lot of land 
 in fee, and added "if either of these three — M, J 
 and L — should die without lawful heirs of their 
 body, the estate shall fall to the other two; if two 
 should die, their estate shall fall to the one; if the 
 one should die without heirs, the estate shall be 
 equally divided between C's and A's heirs." Two 
 of the children died unmarried, before the father. 
 The other one died afterward, but left no issue, 
 although she had one child born alive. It was held 
 that her husband had an estate by the curtesy in the 
 three lots. 
 
 A wife's declarations, made shortly after the 
 birth of a child, that it had been born alive, are not 
 competent evidence to establish her husband's title 
 to an estate by the curtesy. 
 
 In Pennsylvania by statute, the birth of issue 
 is no longer required. The right of estate by the 
 curtesy is not complete before the death of the 
 wife, although it exists after marriage, the birth of 
 issue and seisin. It is then "initiate" and contingent 
 on the death of the wife. A tenancy by the curtesy 
 initiate is both salable and assignable. The interest 
 of the husband is a legal estate ; it is a freehold dur- 
 ing the lives of himself and wife, w^ith a freehold in 
 the remainder to himself for life, as a tenant by the 
 curtesy and a remainder to the w^ife and his heirs, 
 in fee. It is a certain and determinate interest, 
 whose value may be ascertained by reference to 
 well known rules. It is in every sense his land and 
 liable to respond for his debts. The right of curtesy 
 initiate is not a vested right; and as curtesy con- 
 summate is regarded as an estate by descent, and 
 rules of descent are determined by the law as exist- 
 ing at the time of the ancestor's death, it follows 
 that, during the lifetime of the wife curtesy initiate 
 
 295
 
 WOMAN UNDER THE LAW 
 
 may be destroyed by the statute. But if the statute 
 does not expressly refer to existing rights, it will be 
 applied only to those that arise after its passage. 
 
 After the death of the wife, curtesy initiate 
 becomes curtesy consummate. The estate is then 
 vested. It vests by operation of law and without 
 assignment. 
 
 The right of tenancy by the curtesy can exist 
 only in real estate. When, however, money is 
 treated in equity as real estate, the husband may 
 have the interest thereof as curtesy. 
 
 The right to a tenancy by a curtesy is not con- 
 fined to legal estates. A husband is entitled to cur- 
 tesy in equitable estates of inheritance of the wife 
 in possession. 
 
 It has been held that the husband cannot be 
 tenant by the curtesy of the separate real estate of 
 the wife. 
 
 But the better opinion seems to be, that, all the 
 requisites concurring, the husband may be tenant 
 by the curtesy of his w^ife's separate real estate not- 
 withstanding he is cut off from any participation 
 in the rents and profits during coverture. But if the 
 purpose to cut him off from the curtesy be clearly 
 expressed in the instrument of settlement, then his 
 right is gone, although formerly this could not be 
 done at law. 
 
 By agreement with his wife a husband may 
 relinquish his right to a tenancy by the curtesy ; and 
 such an agreement may be made before or after 
 meu-riage. 
 
 The right of curtesy is expressly abolished by 
 statute in some states, in others retained as it was 
 at common law, in others not mentioned in the 
 statutes, while in others the common law rights are 
 greatly modified. Where the right of curtesy is ex- 
 pressly abolished, the statute generally makes an- 
 
 296
 
 CURTESY 
 
 other provision for the husband, as where the hus- 
 band has a right of dower in his wife's estate, the 
 same as the wife has in his estate. It has been held 
 that the acts relative to the protection of the rights 
 of married women entirely abrogate the existence 
 of prospective tenancy by the curtesy. Every qual- 
 ity and incident that is necessary to constitute such 
 a tenancy is destroyed by the provisions of these 
 acts. 
 
 Now, how^ever, the law seems to be substan- 
 tially settled, that, while those acts excluded the 
 husband during his life from control of, or interfer- 
 ence with, his wife's real and personal estate, and 
 gave to her alone the power of distribution by deed 
 or will, yet they left the husband the right of curtesy 
 in her real property in so much as remained, at her 
 death, undisposed of and unbequeathed. 
 
 297
 
 CHAPTER XI. 
 SEPARATION BY AGREEMENT 
 
 By separation of husband and wife is meant 
 their voluntary marital dissassociation ; a secession 
 of co-habitation by mutual consent ; only colloquial- 
 ly is the word to be applied to a mere casual tem- 
 porary absence. It is also widely distinguishable 
 from abandonment or desertion, although some- 
 times the agreement results therefrom. It is also 
 clearly distinguishable from divorce a mensa, al- 
 though involving sufficient principles in common 
 therewith to be considered cognate thereto. 
 
 Separation deeds are mutual deeds of arrange- 
 ment between husband and wife, generally ex- 
 ecuted for the purpose of avoiding unpleasant ex- 
 posures of marital infelicities, and of more effectu- 
 ally providing for consequent altered circumstances 
 of wife and off-spring, and for a just mutual dis- 
 position of property rights. 
 
 In England, such deeds, in the form of articles 
 of separation, w^ere once held to be contra bonos 
 mores , and courts of equity refused to carry them 
 into effect. But judicial opinion has undergone a 
 change, and it is now^ w^ell settled in England that 
 such deeds are not against public policy. It is im- 
 possible to say what the opinion of a man or judge 
 might be as to what public policy is. For a great 
 number of years, both ecclesiastical judges and lay 
 judges thought it was something very horrible, and 
 agednst public policy that the husband and wife 
 should agree to live separate, and it was supposed 
 
 298
 
 SEPARATION BY AGREEMENT 
 
 that a civilized country could no longer exist if such 
 agreements were enforced by courts of law, whether 
 ecclesiastical or not. But a change came over judi- 
 cial opinion as to public policy; other considera- 
 tions arose and people began to think, that, after all, 
 it might be better and more beneficial for married 
 people to avoid in many cases the expense and scan- 
 dal of suits of divorce by settling their differences 
 quietly by the aid of friends out of court, although 
 the consequence might be that they would live 
 separately, and that was the view carried out by 
 the court when it becEune once decided that separa- 
 tion deeds, per se, were not against public policy. 
 Thus is presented the anomaly that while separations 
 in pais or in court are not to be sanctioned except 
 on proof of a dereliction legally defined and declared 
 sufficient, never on the consent of the parties, 
 nevertheless, as the wife may bring, defend, and 
 settle divorces she may make an agreement whereby 
 suit is avoided. 
 
 It has also been held in some of the United 
 States that articles of separation between husband 
 and w^ife, whether entered into before or after the 
 separation, are against law and public policy, and 
 therefore void. But in almost all the states, such 
 deed is good as to provisions for maintenance, but 
 not as a bar to cohabitation. 
 
 In some of the states, statutes inhibit any 
 change of marital rights and obligations other than 
 by judicial act. The effect of separation articles, 
 especially as to third persons, often turns upon the 
 extent to which the legislature has enabled the wife 
 to contract. The statutory provisions, therefore, as 
 aloO those for voluntary separation, are very 
 diverse. 
 
 In Alabama upon voluntary separation the 
 court of chancery may, on petition of one party, 
 
 299
 
 WOMAN UNDER THE LAW 
 
 and twenty days notice to the other, permit the 
 father or the mother to have the custody and con- 
 trol of the children, and to superintend and direct 
 their education, having regard to the prudence, 
 ability and fitness of the parents, and the age and 
 sex of the children. Her voluntary abandonment 
 of him against his consent is not a voluntary separa- 
 tion. The assent of both may be implied, though 
 not expressed. His wish for her to go may be in- 
 dicated by cruel treatment. 
 
 In Arizona, no matrimonial agreement may be 
 altered after the solemnization of marriage. 
 
 In California, a husband is not liable for the 
 support of his wife when she is living apart from 
 him by agreement, unless such support is stipulated 
 in the agreement. The mutual consent is a suffi- 
 cient consideration for the agreement to separate. 
 
 In Colorado, as in other states, procurement 
 by fraud will invalidate the agreement. 
 
 In the Dakotas, the husband and wife cannot, 
 by any contract with each other, alter their legal 
 relations, except as to property, and except that 
 they may agree in writing to an immediate separa- 
 tion, and may make provision for the support of 
 either of them and for their children during such 
 separation. The mutual covenants constitute a 
 sufficient consideration for the deed. 
 
 In Georgia, the contracts of a married woman 
 are generally void as we have seen. 
 
 In Illinois, the wife cannot abandon her hus- 
 band without his consent, to acquire separate in- 
 come. Equity will compel him to pay promissory 
 notes given upon a separation to secure her support, 
 but fraudulently gotten possession of by him. Her 
 agreement to return and cohabit will support his 
 agreement to pay money to a trustee for her use. 
 
 In Indiana, the wife of an absentee has all the 
 300
 
 SEPARATION BY AGREEMENT 
 
 rights of a feme sole ; and a parol agreement for 
 separation without intervention of any trustee has 
 been sustained in that state. 
 
 In Iowa, a separation deed will be sustained as 
 to the maintenance and mutual disposition of pirop- 
 crty rights. 
 
 In Kansas, husband and wife may contract 
 with each other so as to pass title. 
 
 In Kentucky, a contract for separation with no 
 trustee will not be enforced; but one's contract to 
 support his wife, made in view of an immediate 
 separation, is valid; otherw^ise, if of one not imme- 
 diately to take place. A recital in a separation deed 
 that she had abandoned him "without legal cause 
 for dower or alimony" was held ground to refuse 
 dower after his death. 
 
 In Maine, a married woman may release to her 
 husband the right to control her property. And a 
 divorced wife may recover on a note executed to her 
 by her husband during coverture. 
 
 In Maryland, only by causes that show an ab- 
 solute impossibility to discharge the marriage duties 
 can separation be justified. A wife living separate 
 from her husband, unjustifiably and without his 
 consent, cannot be allowed maintenance out of her 
 inherited legal estate. In case of a separation deed 
 not providing for an indemnity against the wife's 
 debts, the court will not compel the husband to aid 
 in giving title to land she has assumed to convey. A 
 separation deed signed by the v/ife's attorney and 
 not by herself, w^as held invalid by the laws of that 
 state. A separation deed with trustee, for support, 
 protects the husband against a claim, even for neces- 
 saries furnished the wife by a third party. 
 
 In Massachusetts, a bond between husband 
 and wife is not void as against public policy. Deeds 
 wherein the husband, in contemplation of imme- 
 
 301
 
 WOMAN UNDER THE LAW 
 
 diate separation, agrees to pay a trustee money for 
 the wife's support, are not against public policy. 
 Payment of arrears thereunder may be enforced 
 after her death. The title to a note handed to her 
 on separation, has been held by the laws of that 
 state to remain in him. 
 
 In Minnesota, except as to real estate, she may 
 contract with her husband as if sole ; and they shall 
 be held to have notice of each other's contracts and 
 debts, w^herever rights of creditors come in question. 
 She may alone release dower in lands of a former 
 husband. 
 
 In Mississippi, the common law, as to the dis- 
 abilities of married women, and its effect on the 
 rights of property of the wife, is totally abrogated; 
 and, happily, husband and w^ife may sue each other 
 in Mississippi. A separation deed is void without, 
 but valid with a trustee, but there must be mutual 
 intent to separate. 
 
 In Montana (this is worthy of note) a married 
 woman may make contracts oral or written, sealed 
 or unsealed, and may waive or relinquish any rights 
 or interest in real estate, either by person or by at- 
 torney, in the same manner, to the same extent, 
 and with the like effect as may a married man. 
 
 In Nebraska, a married woman will not be 
 bound by any covenant in a joint deed of herself 
 and husband and the w^ife may recover on a note ex- 
 ecuted to her by her husband during coverture. 
 
 In Nevada, a husband and wife may agree to 
 immediate separation, and may make provision for 
 the support of either of them and of their children 
 during such separation. The mutual consent is a 
 sufficient consideration therefor. 
 
 In New Hampshire, the wife of an alien may, 
 after six months' residence, hold and convey real 
 property, as if sole, and have exclusive custody of 
 
 302
 
 SEPARATION BY AGREEMENT 
 
 her minor children Hving with her. Under the stat- 
 ute of 1 860 giving the wife control of her separate 
 property she may, it seems, contract with her hus- 
 band in relation thereto. A note and mortgage ex- 
 ecuted by the husband with a view^ to divorce was 
 held void by the laws of that state. 
 
 In New Jersey, a wife may contract as if sole, 
 except as accommodation endorsor, guarantor or 
 surety. A deed not signed by the trustee, was held 
 not operative except as an agreement to live sepa- 
 rate. The husband's conveyance to a trustee for 
 the use of his wife on executing articles of separa- 
 tion, w^ill not be set aside for her subsequent adul- 
 tery w^hile living apart. 
 
 In New York, a married woman may contract 
 as if unmarried except v^ith her husband. In cer- 
 tain cases, such as cruelty, conduct rendering co- 
 habitation unsafe and improper, abandonment, and 
 neglect to provide for the wife, an action may be 
 maintained for separation from bed and board, for- 
 ever, or for a limited time. 
 
 In North Carolina, a woman living apart under 
 a registered deed of separation, may be a free trader. 
 No contract between husband and vdfe made during 
 coverture will be held valid to affect or change any 
 part of the real estate of the wife, or the accruing 
 income thereof, for a longer time than three years. 
 Contracts between husband and wife, not forbidden 
 by the preceding requirement and not inconsistent 
 with public policy are valid. A voluntary separa- 
 tion under some circumstances, is recognized as a 
 legal condition, out of which may arise certain 
 powers to be exercised over her estate. 
 
 In Ohio, a husband or wife may enter into any 
 engagement or transaction with the other, or with 
 any other person, which either might if unmarried; 
 subject, in transactions between themselves, to the 
 
 303
 
 WOMAN UNDER THE LAW 
 
 general rules which control the actions of persons 
 occupying confidential relations with each other. A 
 husband and w^ife cannot by any contract with each 
 other alter their legal relations, except that they may 
 agree to any immediate separation, and may make 
 provision for the support of themselves and their 
 children during the separation. Articles executed 
 with a trustee for separation and the wife's main- 
 tenance are not against public policy. A post-nup- 
 tial agreement, appropriating property to her sepa- 
 rate use, though void at common law, will be sus- 
 tained in equity. 
 
 In Oklahoma, the same provision for a separa- 
 tion agreement has been made as in Nevada. 
 
 In Oregon, a conveyance by a husband or w^ife 
 to the other is valid and they may contract with each 
 other. 
 
 In Pennsylvania, as early as 1 846, the doctrine 
 was w^ell settled that separation deeds were valid 
 and effectual, both at law and in equity, provided 
 their object be actual and immediate and not a con- 
 tingent or future separation. 
 
 In Rhode Island, in the absence of express pro- 
 vision to the contrary, a separation deed is no bar to 
 a divorce. 
 
 In South Carolina, a bond to a trustee, reciting 
 an agreement to live separate, and conditioned to 
 pay an annual sum for the use of the wife, is valid ; 
 and it may be shown by parol evidence that a sepa- 
 ration had previously taken place, and that the bond 
 was given to compromise a suit for alimony. 
 
 In Tennessee, married women over the age of 
 twenty-one years, owning the fee or other legal or 
 equitable interest or estate in real estate, who have 
 abandoned their husbands, or whose husbands may 
 be non compos mentis, or whose husbands may fail 
 or refuse to cohabit with or have abandoned them, 
 
 304
 
 SEPARATION BY AGREEMENT 
 
 shall have the same powers of disposition by will, 
 deed, or otherwise as are possessed by unmarried 
 w^omen. The husband's concurrence therein is not 
 necessary ; and he may be estopped by a separation 
 bond from claiming any portion of the wife's estate. 
 
 In Texas, the wife may contract debts for 
 necessaries furnished herself or children, and for all 
 expenses which may have been incurred by the wife 
 for the benefit of her separate property. For such 
 debts the husband and wife must be sued jointly. 
 
 In Utah, the separate property of each spouse, 
 may be held, managed, controlled, transferred, and 
 in any manner disposed of by the spouse so owning 
 or acquiring it without any limitation or restriction 
 by reason of marriage. 
 
 By the Edmunds-Tucker law of 1887, dissolv- 
 ing the incorporation of the Mormom Church, a 
 widow is endowed of a third part of all lands 
 whereof her husband was seised of an estate of in- 
 heritance at any time during the marriage. 
 
 In Vermont, an agreement of separation, 
 signed by the husband and the wife's father, as her 
 agent, w^as held to be a good defence to her petition 
 for a divorce for acts of cruelty occurring before the 
 agreement. 
 
 In Virginia, a married w^oman may contract as 
 if sole in respect to her trade, services or separate 
 estate. A separation deed executed under appre- 
 hension of a suit for divorce for the wife's adultery 
 was held invalid. 
 
 In Washington, the earnings and accumula- 
 tions of the wife and of her minor children living 
 with her, or in her custody while she is living sepa- 
 rate from her husband, are the separate property of 
 the wife. 
 
 In West Virginia, a wife may control her sepa- 
 rate property, but not dispose of her real estate 
 
 305
 
 WOMAN UNDER THE LAW 
 
 without her husband's consent, unless she be living 
 apart from him or he be non compos mentis. If by 
 an ante-nuptial agreement or otherwise he has 
 acquired any of her separate property, he is liable 
 for her ante-nuptial debts contracted for its value. 
 
 In Wisconsin, the wife's separate property and 
 earnings are not subject to her husband's control. 
 A mutual agreement for each to release all interest 
 in the property of the other (not in view of separa- 
 tion) is void. 
 
 An act enabling a married woman to contract 
 as if sole as to her separate property, may, in the 
 absence of a contrary provision, apply to articles 
 entered into with her husband; such statute must be 
 liberally construed. 
 
 No particular form is prescribed for the deed 
 of separation either by statute or usage; and a 
 mere parol agreement for separation may be valid. 
 
 It must be evident from what has been said 
 above, and from the principle of the matter, that the 
 rights of the public are not to be ignored in a volun- 
 tary marital separation ; wherefore, it follows that a 
 bargcdn for a future separation is invalid, while a 
 separation having once taken place a provision look- 
 ing to the wife's maintenance is valid and proper. 
 
 As between the parties, the husband's duty to 
 support his wife is a sufficient consideration for his 
 promise to pay her an allowance. She must have 
 some valuable consideration for the release of her 
 rights. There must also be some valuable considera- 
 tion against existing creditors, as, for instance, a 
 third party's promise to indemnify him against her 
 debts. Mutual consent may be, perhaps of itself 
 alone, a sufficient consideration for the contract; 
 certainly, if so declared by statute. Conciliation 
 and the family's highest interests are deemed as 
 weighty as any mere pecuniary consideration. The 
 
 306
 
 SEPARATION BY AGREEMENT 
 
 trustee's indemnifying the husband against the 
 wife's future debts is a valuable consideration, and 
 takes the conveyance out of the statute of fraudulent 
 conveyances. 
 
 Formerly it was deemed absolutely necessary 
 that the property of which the wife was to have ex- 
 clusive use be vested in trustees for her benefit; 
 and that the husbands agreement should be made 
 with such trustees, or at least with somebody ca- 
 pable of contracting with him for her benefit. This 
 is still customary and proper, but not indispensable. 
 
 Ordinarily, the law gives the father the custody 
 of the children. The courts, however, look to the 
 child's welfare as paramount, and award the cus- 
 tody to that parent who is most proper, fit and able 
 to promote the same. If not prejudicial to this, any 
 family arrangement in the deed of separation as to 
 custody, visits, and other incidental matters, will 
 be sustained. Under the present English law, a 
 provision as to children is construed wholly w^ith 
 regard to their welfare. In the deed of a medical 
 officer of the British Army, having four children, 
 the eldest eleven and the youngest three years old, 
 he stipulated that after his approaching absence in 
 India, he should resume their entire custody, the 
 wife to be accorded full and free access to them, to 
 the extent, at least of her having the opportunity 
 of spending one day in every fortnight with them. 
 Four years afterwards he was ordered to Egypt and 
 proposed to take the first child, a daughter, and the 
 third one, a son, with him. On her application for 
 an injunction — it w^as held, that the deed did not 
 preclude him from taking them, there being no 
 proof that his purpose w^as to prevent her from hav- 
 ing access to them. 
 
 The ordinary grounds for avoiding a contract 
 apply to a separation deed; e. g., procurement by 
 
 307
 
 WOMAN UNDER THE LAW 
 
 fraud or undue stress, except, sometimes, in case of 
 infancy and coverture. Resumption of cohabita- 
 tion, restoring the former relations, will also avoid 
 the deed. A casual intercourse of three days how- 
 ever has been held not to be proof of permanent 
 reconciliation; and a mere cessation of sexual in- 
 tercourse is not such separation as will sustain the 
 deed. Mere communication by letters may not im- 
 port recohabitation. And an agreement for separa- 
 tion has been held not to be suspended during rec- 
 onciliation. 
 
 The fact that before the marriage the wife had 
 illicit intercourse with another than the husband, 
 and induced him to execute the deed in contempla- 
 tion of a renewal thereof, w^ould be grounds for its 
 avoidance. 
 
 The husband's conveyance to a trustee for the 
 wife's use, made on execution of separation articles, 
 will not be set aside for her subsequent adultery 
 while living apart. Adultery may be a ground for 
 forfeiture of dower but not of a jointure. A deed 
 executed under the wife's apprehension of a hus- 
 band's suit for divorce on the ground of her adul- 
 tery, and wherein she conveyed to a trustee $1 2,000 
 worth of real estate, for him and the two children, 
 he to deliver to the trustee annually certain provis- 
 ion for her support — was held invalid. In England, 
 it has been held, that a deed made between husband 
 and w^ife and a trustee with a covenant by the hus- 
 band to pay the trustee an annuity, in case she live 
 apart from him, is void, as contemplating a future 
 separation at her pleasure, and therefore against 
 marriage policy. Where a deed stipulated that the 
 husband should not visit the wife without her con- 
 sent, his visit to her w^ith her consent, and passing 
 one night in her bed-chamber, was, in absence of 
 
 308
 
 SEPARATION BY AGREEMENT 
 
 any other evidence of reconciliation, held not to 
 avoid the deed. 
 
 If the consideration be apparent, the arrange- 
 ment fair, and the trustees' duties clearly defined, 
 equity v/ill enforce a deed made in continuation of 
 a separation, or in contemplation of an immediate 
 separation; and sometimes, a post-nuptial contract 
 containing stipulations void as to law. 
 
 At common law a married woman could not 
 contract and sue and be sued as a feme sole , even 
 though living apart from her husband and having a 
 separate maintenance secured to her by deed. But 
 this rule has been largely modified by statute. In 
 England it has been held that the general reputation 
 of separation and allowance for support is sufficient 
 to protect the husband against a claim for neces- 
 saries furnished the w^ife. 
 
 A deed of separation is generally no bar to a 
 suit for divorce; though in England, articles of 
 separation were, in the House of Lords, held to form 
 an insuperable bar to the special interposition of 
 the legislature on an application for a divorce. 
 
 By the common law of England, and of many 
 of the states, and by the statutes of some of the 
 states, he who has abandoned his wife without 
 provision for her support is presumed to have 
 waived his right to her acquisitions as a sole trader, 
 and she may sue and be sued, contract and convey, 
 as a feme sole; in many instances, however, an or- 
 dinary protracted absence being distinguished from 
 that of his imprisonment, exile, or other civil death. 
 The subject can be comprehended only by an his- 
 torical and comparative view^. In England the law 
 was declared in a case, the total report whereof is 
 as follows: "An ordinary working-man married 
 a woman of like condition; after cohabitation for 
 some time he left, and during his absence she 
 
 309
 
 WOMAN UNDER THE LAW 
 
 worked ; and this action being brought for her diet, 
 the money she earned should go to keep her.'* 
 In Massachusetts in 1818, it was held that a 
 feme covert, w^hose husband had deserted her in 
 a foreign country and w^ho had thenceforth main- 
 tained herself a feme sole, and for five years had 
 lived in Massachusetts (he never being in the 
 United States), w^as competent to sue and be sued 
 as a feme sole, and her release was a valid discharge 
 of a judgment recovered by her. This decision has 
 been quoted with approval by the United States 
 Supreme Court. In Massachusetts, it was early 
 held that a wife whose husband is an alien or non- 
 resident is restored to her capacity to contract as a 
 feme sole. 
 
 After their voluntary separation, they may 
 for some purposes, be witnesses for or against each 
 other. 
 
 His living apart from her has, under certain 
 circumstances, been held to deprive him of remedy 
 for her misconduct. Where a suspecting husband 
 took a lodging for his w^ife, it was held that he could 
 not maintain an action for criminal conversation 
 committed by her while he remained aw^ay. 
 
 The conjugal relation imposes upon the hus- 
 band the duty to support the wife. If he has pro- 
 vided therefor by deed or otherwise, and is ful- 
 filling the provision, she cannot pledge his credit 
 therefor; otherw^ise, if he fails to fulfill the stipula- 
 tion or to pay the alimony in a decree a mensa. In 
 general, upon their voluntary separation without 
 sufficient provision for her maintenance, he is liable 
 for medical attendance or other necessaries fur- 
 nished her by third parties. This general rule ap- 
 plies in many instances of separation not mutually 
 voluntary. In a case w^here he unjustifiably ab- 
 sented himself, he w^as held liable for debts mean- 
 
 310
 
 SEPARATION BY AGREEMENT 
 
 while incurred by her in keeping a boarding-house 
 for her support. The decision as to requisites, for 
 recovery in a suit against him upon debts incurred 
 by her for support while apart, are not uniform. As 
 to suits for necessaries furnished during cohabita- 
 tion, see chapter on Husband and Wife, In England, 
 one who furnishes support to an unjustly deserted 
 wife has a remedy in equity against the husband. 
 While the presumption of her agency continues, the 
 burden of proof is on the husband to show^ that he 
 had supplied her sufficient maintenance according 
 to their condition in life. It was held in Massachu- 
 setts that he was not chargeable with other supplies 
 furnished her w^here, on separation by mutual con- 
 sent, the husband paid the wife three hundred dol- 
 lars, she agreeing to make no claim to support, and 
 to release her dower right in his land, and she made 
 no such claim nor any offer to return. Where, on 
 such separation, he contracted w^ith her father for 
 her maintenance, but she afterw^ards left her father 
 without any good cause, it was held in New Hamp- 
 shire that she could not pledge her husband's credit. 
 This presumption of agency does not extend 
 to authorize her to borrow money to pay out for 
 necessaries. His assent to the furnishing will be 
 presumed, upon proof that he knew thereof and 
 made no objection. Whether upon separation w^ith 
 a sufficient allowance, which the husband continues 
 to meet, or upon adequate provisions from any 
 other source, he must give express notice thereof 
 in order to exempt himself from liability to trades- 
 men assuming to deal with her, the decisions have 
 not been uniform. In Missouri, he has been held 
 liable, upon failure to so notify creditors. In 
 Georgia, by statute, notice relieves him if she aban- 
 dons him v/ithout sufficient provocation; but not if 
 for his misconduct. In Michigan, in a proceeding 
 
 311
 
 WOMAN UNDER THE LAW 
 
 at law to recover against the husband's estate for 
 the wife's support, the sufficiency of the alimony 
 allowed in chancery cannot be reviewed by the jury. 
 In New York, the report of a referee, fixing alimony, 
 if not confirmed, is no defence to a suit for neces- 
 saries. He has sometimes been held liable notwith- 
 standing his express prohibition. In the leading 
 English case, thereon, the majority of the court held 
 that the husband could not be held against his ex- 
 press prohibition. In general, upon a separation, a 
 party furnishing the wife with necessaries, accepts 
 at his peril her pledge of the husband's credit; and 
 must show the existence of justifiable cause, espe- 
 cially if, at the time thereof, he was aware of her 
 intent of desertion. If the wife has justifiably with- 
 drawn and dies, the husband is liable for her funeral 
 expenses. In general, he is also liable for proper 
 expenses in legal proceedings, if incurred by her 
 because of his misconduct. So also does the general 
 rule of the husband's liability for necessaries apply 
 where his wrong doing compels the separation. 
 Where a husband placed a dissolute woman at the 
 head of his table, and confined his wife on a charge 
 of insanity, but she escaped, it was held that he, 
 not verbally forbidding her return, was not liable 
 for necessaries furnished her. This decision has 
 been severely animadverted upon in England. The 
 court said: "If a man renders his house unfit for a 
 modest w^oman to remain in it, she is authorized in 
 going aw^ay." The decision has also been disap- 
 proved in America in a case involving precisely the 
 same circumstances. The husband is also liable for 
 necessaries if she, although voluntarily and unjus- 
 tifiably leaving him, has returned, or made a bona 
 fide offer to return. 
 
 One seeking to charge the husband for neces- 
 saries furnished must make out a case negativing 
 
 312
 
 SEPARATION BY AGREEMENT 
 
 captious abandonment. As to what constitutes 
 desertion or abandonment see chapter on Divorce. 
 In Pennsylvania, her withdrawal through wrongful 
 representation by his relatives that she intended to 
 put him in an insane asylum, was held not to be 
 desertion. In West Virginia, a charge of prostitu- 
 tion made by the husband against the wife falsely, 
 is deemed cruel treatment and, perhaps, abandon- 
 ment. In Louisiana, where a wife's incessant de- 
 mands for money, scorn and personal violence w^ere 
 met by the husband with what the court termed 
 "unresisting imbecility" until he abandoned the 
 dwelling, she was held not to be entitled to a decree 
 for separation. 
 
 Her bigamy, if committed through his fault, 
 has been held not to exempt him from liability for 
 her support. So also as to her adultery committed 
 through his connivance. In New Hampshire, it has 
 been held that his duty to support her is not ter- 
 minated by her adultery committed with his written 
 consent given on condition that she shall not look 
 to him for support. Proof that the wife, at the time 
 of furnishing her with the necessaries, was living in 
 open adultery, constitutes a valid defence to the 
 suit against the husband therefor. So also if the 
 plaintiff knew at the time that the husband had dis- 
 carded her for her adultery. It has even been held 
 that where the wife eloped with an adulterer, the 
 husband was not liable, although the tradesmen had 
 no notice of the fact. Separation by insanity of 
 either does not change the general rule as to their 
 rights and liabilities meanwhile. The husband's 
 liability, upon separation, for the support of a 
 pauper wife is not the same in all the states ; owing 
 ordinarily to the difference in their poor laws. In 
 New York, the wife of a husband able to support 
 her is not a "pauper" within the statute; and 
 
 313
 
 WOMAN UNDER THE LAW 
 
 although he unjustifiably turns her out, the super- 
 intendents of the poor cannot recover of him for 
 necessaries furnished her. In Massachusetts the 
 law is otherwise. In Vermont he is liable for not 
 over one year's support. In Ohio the husband is not 
 liable for expenses of a treatment for his insane wife 
 in the state hospital. In West Virginia, otherwise. 
 
 In many states, a statutory provision is made 
 for compulsory support of the w^ife by a husband 
 unjustifiably abandoning her. The Massachusetts 
 statute affords a good illustration. "When a hus- 
 band fails, without just cause, to furnish suitable 
 support for the wife, or has deserted her, or when 
 the w^ife, for justifiable cause, is actually living 
 apart from her husband, the probate court may, by 
 its order on the petition of the wife, or, if she is 
 insane, on the petition of her guardian or next 
 friend, prohibit the husband from imposing any 
 restraint on her personal liberty for such time as the 
 court shall in such order direct, or until the further 
 order of the court thereon; and the court may, 
 upon the application of the husband or w^ife or of 
 her guardian, make such further order as it deems 
 expedient concerning the support of the wife, and 
 the care, custody, and maintenance of the minor 
 children of the parties, and may determine with 
 which of the parents, the children or any of them 
 shall remain; and may, from time to time, after- 
 wards, on a similar application, revise and alter such 
 order, or make a new order or decree, as the cir- 
 cumstances of the parents or the benefit of the chil- 
 dren may require." 
 
 This statute is constitutional, although it makes 
 no provision for trial by jury. The husband, though 
 under guardianship as a spendthrift, may be prohib- 
 ited from restraining the wife's liberty. The pro- 
 bate court cannot, w^ithout consent, order payment 
 
 314
 
 SEPARATION BY AGREEMENT 
 
 of a sum in gross for all the future support of the 
 wife. The fact that the husband has deserted his 
 wife and gone into another state, does not preclude 
 the statutory award for separate maintenance. The 
 petition may be granted, although the living apart 
 was only for a day. The fact that she has executed 
 a release of all claim for support, and that the con- 
 sideration has been received by her, is no bar to her 
 petition. Where an attachment has been ordered 
 for separate maintenance, successive executions 
 may be issued thereon. 
 
 Massachusetts also affords a good representa- 
 tive of statutes declaring such abandonment a 
 criminal offence: "w^hoever unreasonably neglects 
 to provide for the support of his wife or minor child 
 shall be punished by fine not exceeding twenty dol- 
 lars, or imprisoned in the house of correction not 
 exceeding six months;" the fine, at the discretion 
 of the court, to go to the town, city, society or per- 
 son actually furnishing the support. In a prosecu- 
 tion thereunder, the complainant, to rebut the hus- 
 band's charge that she had failed in her marital duty, 
 was permitted to adduce a decree of the probate 
 court for her separate maintenance, also a decree 
 dismissing his libel for divorce. 
 
 In England, a wife w^rongfully deserted by her 
 husband, may have an order for protection of her 
 property; and upon judicial separation, have the 
 rights of a feme sole. 
 
 The husband is not bound to maintain his 
 wife's children by a former husband unless he has 
 taken them into the family. 
 
 In Connecticut, any husband neglecting, 
 without good cause, to support his wife, may be 
 sentenced to hard labor for not more than sixty 
 days, or compelled to give bond. Upon a prosecu- 
 
 315
 
 WOMAN UNDER THE LAW 
 
 tion for failure to support, her adultery is a sufficient 
 defence. 
 
 In Delaware, a husband deserting his wife, 
 without making proper provision for her support, is 
 liable to have his property sequestered by the board 
 of trustees of the poor. 
 
 In Florida, in case of his cruelty or desertion, 
 the court will intercept her estate in his hands, or 
 remove him as trustee. 
 
 In Georgia, if any man shall whip, beat, or 
 otherwise cruelly maltreat his wife, he shall be 
 deemed guilty of a misdemeanor, and the wife shall 
 be a competent witness against him. The statute, 
 rendering him liable for her support, is like that of 
 California. She may, without applying for a 
 divorce, maintain an action against him for intoler- 
 able cruelty. 
 
 In Indiana, the wife by an ordinary suit against 
 the husband, may obtain support when he has 
 deserted her without cause and without provision, 
 or has been convicted of a felony and imprisoned, 
 or is an habitual drunkard, or refuses to live with 
 her in the conjugal relation, by joining himself to a 
 sect, the rules of which require such renunciation. 
 
 The Indiana act for relief of a "deserted" wife, 
 does not apply to a deserting one. An omission in 
 the complaint to allege that his deserting her w^as 
 without cause, is cured by verdict. His unjus- 
 tifiably deserting her is punishable by fine. 
 
 In Iowa, on abandonment by either and ab- 
 sence from the state for one year, w^ithout provision, 
 or imprisonment for a year or more, the abandoned 
 spouse may, by ordinary action in the district or cir- 
 cuit court, become authorized to manage, control, 
 sell and encumber the property of the husband or 
 wife, for the support of the family, and for the pur-^ 
 pose of paying debts. 
 
 316
 
 SEPARATION BY AGREEMENT 
 
 In Kansas, the wife may obtain alimony from 
 the husband without a divorce, in an action brought 
 for that purpose in the district court, for any of the 
 causes for which a divorce may be granted. 
 
 In Kentucky, where the husband abandons the 
 wife, or fails to make sufficient provision for her 
 maintenance, or where he is confined in the peniten- 
 tiary for an unexpired term of more than one year, 
 the wife, may, by action in equity, be empowered to 
 use, enjoy and sell, for her own benefit, any prop- 
 erty she may acquire or may have acquired; to 
 make contracts, sue and be sued ; may sell and con- 
 vey by her own deed, etc. But the husband, upon 
 manifesting a proper disposition again to live with 
 his wife and make suitable provision for her or upon 
 his release from the penitentiary, by his petition in 
 such action may, in the discretion of the court, have 
 all or part of said powers set aside, and be permitted 
 to take upon himself the prosecution or defence of 
 any pending action against her. 
 
 In Louisiana, their voluntary separation does 
 not prevent their acquisitions from falling into the 
 community. 
 
 In Maine, a wife whose husband has aban- 
 doned her and left the state, or is in execution of 
 sentence in the state prison, may be authorized by 
 the Supreme Judicial Court to contract as a feme 
 sole. 
 
 In Michigan, an abandoned wife may, in the 
 Probate Court, obtain relief like that in Massachu- 
 setts. 
 
 In Minnesota the support may be ordered, 
 with or without a decree of separation. 
 
 In New Hampshire, the wife may, on abandon- 
 ment, in the Supreme Court, obtain relief like that 
 afforded by the Probate Court in Massachusetts. 
 
 In New Jersey, a husband neglecting to sup- 
 
 317
 
 WOMAN UNDER THE LAW 
 
 port his family, may be compelled to do so by the 
 overseers of the poor as a "disorderly person." 
 Equity will decree a sale of property of a neglected 
 wife living separate and she may sell as if sole. 
 
 In New York, where a husband leaves his wife 
 or child a public charge, his property may be seized 
 by the superintendent of the poor or other proper 
 officer, and on confirmation of the warrant by the 
 court of sessions, may be sold, and the proceeds be 
 applied to pay taxes, liens, repairs and insurance, 
 and the residue for the support and care of the wife 
 and child. If she has unjustifiably left him, and he 
 offers to maintain her at a place of her own selec- 
 tion, the order will not be granted. Circumstances 
 to justify a decree of maintenance must be such as 
 to justify a decree of separation. 
 
 In North Carolina, a husband deserting his 
 wife and living in adultery, forfeits all his rights 
 to her personal property, or to property settled upon 
 her at the marriage. A w^ife eloping with an adul- 
 terer, and not living with her husband at his death 
 loses all right of dower. 
 
 In Ohio, if the husband neglects to provide 
 for the w^ife, any other person may in good faith 
 supply her w^ith necessaries, and recover the reason- 
 able value thereof from the husband, unless she has 
 unjustifiably abandoned him and does not offer 
 to return. 
 
 In Oklahoma, if the husband has deserted the 
 wife, or is imprisoned, she may prosecute and de- 
 fend suits in his name. 
 
 In Pennsylvania, if a husband neglects to 
 provide for his wife, she may avail herself of the 
 sole trader act. Any husband, who, for one year 
 before his wife's death, has wilfully neglected to 
 provide for her or has deserted her, forfeits all claim 
 or right to her real or personal estate, after her death 
 
 318
 
 SEPARATION BY AGREEMENT 
 
 as tenant by the curtesy or under the intestate laws. 
 To establish her claim on his estate for her support, 
 she must show that her withdrawal was not caused 
 by her own misconduct. In a desertion case, the 
 allowance may be increased or diminished, or re- 
 voked according to the changed relations of the 
 parties. A deserting husband's right in his wife's 
 estate is not restored by his merely having contrib- 
 uted to her support. Her deserting him and living 
 in adultery, if condoned, does not deprive her of 
 her rights as distributee in his estate. Where, in 
 fulfillment of their agreement of separation the hus- 
 band had given her certain cash and bank stock, it 
 was held that he was not liable to prosecution for 
 failure to support her. 
 
 In Rhode Island, a wife entering the state 
 alone, may, after so continuing one year acquire the 
 rights of a feme sole. 
 
 In South Carolina, if a wife leave her husband 
 and go away, and continue with her advoutrer, she 
 shall be barred forever of action to demand her 
 dower. A married w^oman under the laws of South 
 Carolina has the right to purchase any species of 
 property in her ow^n name, and to take proper legal 
 conveyances therefor and to convey and be con- 
 tracted with as if she w^ere unmarried provided her 
 husband shall not be liable for her debts, except for 
 her necessary support. 
 
 In Tennessee, if a husband's cruelty has com- 
 pelled his wife to leave him, she may have a decree 
 for rents and profits of land in his possession ac- 
 quired by her since the marriage. 
 
 In Texas, a w^ife suing for a divorce, may, on 
 oath that the husband will w^aste either her separate 
 property, or their common property, or the re- 
 venues, may obtain a writ of sequestration, or an 
 injunction. His deserting her and living in adultery 
 
 319
 
 WOMAN UNDER THE LAW 
 
 does not deprive him of his interest in the com- 
 munity property, nor confer on her any rights ex- 
 cept of management and if necessary of disposal 
 thereof. The wife of a deserting husband, not 
 suing for a divorce, cannot compel him to support 
 her. 
 
 In Vermont, a married woman whose husband 
 deserts her, or who from intemperance or other 
 cause becomes incapacitated or neglects to provide 
 for his family, may in her name make contracts for 
 her labor and the labor of her minor children, shall 
 be entitled to her and their wages, and in her own 
 name may sue for and recover them. And the 
 county court may invest her with the rights of a 
 feme sole; may authorize her to sell her realty and 
 his personalty for her support; and the chancellor 
 may give her sole use of his realty; this may also 
 be done in case of his imprisonment. The county 
 court may prohibit a deserting husband from re- 
 straining his wife's liberty. His failure to support 
 her, after notification by the overseer of the poor, is 
 a misdemeanor punishable by fine of not more than 
 twenty dollars. 
 
 In Virginia, by wilfully deserting her until her 
 death, he forfeits all interest in her separate or other 
 estate as tenant by the curtesy, distributee or other- 
 wise. He is not liable for her ante-nuptial debts in- 
 curred in respect to her separate estate. Since the 
 married woman's act, the husband's curtesy initiate 
 in his wife's lands cannot be sold to pay his debts. 
 
 In West Virginia, a decree of separation may 
 provide that the parties be perpetually separated 
 and protected in their persons and property. 
 
 In Wisconsin, whenever the husband or wife 
 is about to abscond or he refuses to support her, 
 the mayor of the city, president of the village or 
 supervisors of the town may issue a w^arrant, against 
 
 320
 
 SEPARATION BY AGREEMENT 
 
 his or her goods, and on confirmation by the county 
 court, sufficient shall be sold at auction for the 
 maintenance of the wife. The property may be 
 restored on the giving of bond. 
 
 In Wyoming, pending her suit for divorce, the 
 court may prohibit him from restraining her per- 
 sonal liberty. He may also be required to give 
 security for obedience to the orders of the court as 
 to his property, but he is not liable for her ante- 
 nuptial debts. 
 
 321
 
 CHAPTER XII. 
 DIVORCE 
 
 Divorce, is the partial or total dissolution of a 
 marriage by the state. The relation of two married 
 persons to each other is not a mere personal rela- 
 tion depending on their will, but a status, — a legal 
 condition established by laws, — which the state has 
 full pow^er to create, change and abrogate. 
 
 The relation is not a contract, and it is not a 
 vested right ; and a divorce, therefore, does not fall 
 within prohibitions against the impairment of the 
 obligation of contract, or the divesting of vested 
 rights. A divorce necessarily changes the property 
 rights of the parties, but this they are presumed to 
 have contemplated. Still, it cannot divest such 
 rights as have vested, for instance, through a mar- 
 riage settlement. But it destroys mere inchoate 
 rights, such as dower, and rights dependent on the 
 continuance of coverture; and generally restores to 
 each of the parties his or her property. Thus it is 
 that the state can, on any terms it pleases, dissolve 
 the marriage of any persons over whose domestic 
 condition it has jurisdiction. 
 
 In the United States of America the "state" 
 means the local government of each state, as the 
 central government has no jurisdiction over the 
 domestic condition of the inhabitants of the several 
 states; the several states can grant divorces, the 
 United States cannot. 
 
 The state can dissolve a marriage through its 
 legislative department by special act — such a 
 
 322
 
 DIVORCE 
 
 divorce being called a legislative divorce ; or through 
 its judicial department — such a divorce being called 
 a judicial divorce. 
 
 A legislative divorce is a divorce granted 
 directly by the legislature, and a divorce granted by 
 a court under a special act of the legislature must 
 also be so regarded. 
 
 Some courts have held that a divorce is in its 
 nature purely a judicial act, but parliamentary 
 divorces were the earliest divorces in England, and 
 legislative divorces were granted in the earliest days 
 in some of the United States. As a rule, a state may 
 grant a divorce unless expressly or impliedly pro- 
 hibited by its constitution. 
 
 The extra-territorial validity of such a divorce 
 and its effect depend generally on the same prin- 
 ciples as govern the validity and effect of judicial 
 divorces. Though a statute, it is in the nature of 
 a decree; the marriage status is destroyed; the 
 woman cannot claim any further rights in the man's 
 property; nor the man in the w^oman's; and the 
 validity of the divorce does not depend on the 
 parties having had notice. This subject is now of 
 little importance as legislative divorces are in a great 
 majority of the states prohibited by the state con- 
 stitution; therefore, the remainder of this chapter 
 will treat only of judicial divorces. 
 
 A judicial divorce is a decree of a court, par- 
 tially or wholly dissolving a marriage. Such a de- 
 cree must be carefully distinguished from a decree 
 of nullity; the first dissolves a valid marriage, the 
 second declares that a valid marriage never existed. 
 The fact that the w^ord "divorce" has been used to 
 include both classes of decrees has led to the most 
 perplexing confusion. 
 
 A judicial divorce may be absolute or limited. 
 An absolute divorce is usually called a divorce a 
 
 323 ~
 
 WOMAN UNDER THE LAW 
 
 vinculo matrimonii, or from the bonds of matri- 
 mony. The earliest form of judicial divorce was a 
 limited divorce — the divorce a mensa et thoro , or 
 separation from bed and board; this divorce was 
 granted in England by the ecclesiastical courts when 
 no absolute divorces were granted except by par- 
 liament. Prior to 1 858 an absolute judicial divorce 
 was unknown. 
 
 In the United States both classes of divorces 
 are known, though divorces a mensa et thoro are 
 growing less and less usual. 
 
 Other forms of limited divorces have been 
 established in many states, such as divorces con- 
 taining prohibition against the marriage of the 
 guilty party during the lifetime of the other or for a 
 specified time, or w^ithout the consent of the court, 
 or with the particeps criminis. 
 
 As will be seen in the discussion of the differ- 
 ent branches of this subject, a decree of divorce may 
 be void — a mere nullity, and so regarded in any 
 court ; or voidable — one that can be set aside on the 
 application of a proper party to the court which 
 granted it. 
 
 A divorce may also be valid as to one of the 
 parties but not as to the other; may afiFect property 
 in one place, but not in another; may be given full 
 effect in one state, and no effect in another; or may 
 be wholly valid, and be so considered everyAvhere. 
 
 The validity of a divorce depends on the juris- 
 diction of the court w^hich grants it, and on its being 
 obtained regularly and without fraud. 
 
 A decree declaring a pretended marriage void 
 ab initio , or avoiding a voidable marriage, is prop- 
 erly called a decree of nullity, though not infre- 
 quently termed a divorce both in judicial opinions 
 and in statutes. It will be necessary to discuss both 
 
 324
 
 DIVORCE 
 
 decrees incidentally in this chapter though they 
 have been fully treated in the chapter on Marriage. 
 
 In determining what courts can dissolve a par- 
 ticular marriage, one must ascertain, first, what 
 state has the necessary power and authority over 
 the parties and their status; and secondly, to what 
 court in that state that right and power has been 
 delegated. In ascertaining this, one may have to 
 consider the principles of international law and 
 comity, the "full faith and credit clause" of the 
 United States Constitution, and the particular stat- 
 utes of the state where the suit is to be brought. 
 
 Jurisdiction at various times and in different 
 states, has been made to depend upon the domicile 
 or residence of the party or parties at the time of 
 their marriage, the commission of the offense, or 
 the time of bringing the suit; the place where the 
 marriage took place, or the offense w^as committed; 
 and the state to which the parties owe allegiance. 
 But generally speaking, the w^hole question is one 
 of the domicile of the parties. 
 
 Colonists may carry with them laws, but not 
 courts ; and therefore the ecclesiastical courts, w^hich 
 alone in England could grant divorces, were not im- 
 ported into this country, and the jurisdiction of such 
 courts can be obtained only by statute. 
 
 The United States courts have no jurisdiction 
 given by statute, nor have they any ecclesiastical 
 jurisdiction and so, although in the exercise of their 
 chancery jurisdiction they may, like other equity 
 courts, entertain a suit for alimony of a wife against 
 her husband, they have no divorce jurisdiction. 
 Nor could Congress vest such jurisdiction in the 
 United States courts; for, as has been shown, mar- 
 riage is not a national matter, but a domestic institu- 
 tion within the exclusive control of the several 
 states. 
 
 325
 
 WOMAN UNDER THE LAW 
 
 In England there is now a special divorce court 
 invested by statute with exclusive divorce jurisdic- 
 tion. 
 
 In each of the United States, excepting South 
 Carolina, divorce jurisdiction is given by statute to 
 certain state courts. Such jurisdiction is not neces- 
 sarily given by express words. 
 
 When certain causes for a divorce are named 
 by a statute, but divorce jurisdiction is not given by 
 name to any particular court, a provision giving 
 jurisdiction in all "civil cases both at law and in 
 equity" to certain courts includes divorce suits,, 
 although such suits are strictly not suits at law or in 
 equity, but are suits sui generis. 
 
 When divorce jurisdiction is vested in certain 
 courts, therefore, but no causes for divorce are 
 named, such jurisdiction covers the canon and com- 
 mon law causes ; but if certain causes are named all 
 others are excluded by implication. State statutes 
 are usually framed on the theory that divorce juris- 
 diction depends upon the domicile, and on the com- 
 plainant's domicile in particular. 
 
 If the court has given jurisdiction it must grant 
 the divorce, although its decree may have no extra- 
 territorial effect. But the statutes will be construed, 
 if possible, so as to prevent any confliction with the 
 provisions of the United States constitution or of 
 international law; in other respects they will be 
 construed strictly, but so as to fairly carry out their 
 spirit and intendment. 
 
 Every state has the right to regulate its ow^n 
 domestic policy, to determine the status of its ow^n 
 citizens, and to choose for itself the terms and con- 
 ditions under which its own courts shall grant 
 divorces; and a divorce granted in accordance w^ith 
 its laws must be valid within its own territory. But 
 no state has primarily the right to push its domestic 
 
 326
 
 DIVORCE 
 
 policy beyond its boundaries and into other states, 
 or to dissolve the marriage or change the domestic 
 status of persons belonging to other states ; and the 
 acts of one state have force and authority in other 
 states only by the consent of such other state — that 
 is to say, by the comity of nations or international 
 law, or by virtue of some paramount law^, such as 
 the United States Constitution, or a treaty between 
 nations. But before considering the effect of the 
 United States Constitution and of international law 
 the nature of the proceedings for divorce must be 
 determined. 
 
 A suit for divorce is not a mere personal suit, 
 like a suit on a contract, or for a tort; nor is it a 
 criminal prosecution; but it is a proceeding sui 
 generis, involving not only persons — the husband 
 and wife, but a thing — their marriage. It is thus a 
 proceeding partly in personam and partly in rem. 
 Jurisdiction is acquired in one of two modes; first, 
 as against the person of the defendant, by the ser- 
 vice of process; or, secondly, by a procedure 
 against the property of the defendant within the 
 jurisdiction of the court. In the latter case the de- 
 fendant is not personally bound by the judgment 
 beyond the property in question. The position of 
 husband and wife, as husband and wrife, depends 
 upon the marriage laws under which they live, and 
 is called their status. So far as a divorce suit is to 
 affect this status, it is to change a thing independent 
 of the parties, and is a proceeding not against the 
 parties in personam , but against their status — in 
 rem. Jurisdiction to pass a decree in rem exists 
 over anything fixed in the state, and notice by 
 publication or otherwise to the parties concerned 
 is rather to give them every chance and to exclude 
 suspicions of secrecy and fraud than to meet a 
 necessity of service or summons. Jurisdiction to 
 
 327
 
 WOMAN UNDER THE LAW 
 
 pass a decree in personam depends, on the other 
 hand, entirely on the courts having authority over 
 the person, either by a regular summons or by his 
 personal voluntary appearance in the suit. So far 
 as a divorce suit relates to the status of the parties 
 it is a proceeding in rem, and a proceeding against 
 two distinct things — the status of the husband and 
 the status of the wife. So far as it relates to alimony, 
 or costs, or a prohibition against marriage, it is a 
 proceeding in personam. So far as it relates to chil- 
 dren, it seems to be a proceeding in rem, — the chil- 
 dren must be in court. 
 
 By the United States Constitution the judicial 
 proceedings of one state are given full effect in all 
 the states ; full faith and credit shall be given in each 
 state to the public acts, records, and judicial pro- 
 ceedings of every other state, according to the con- 
 stitution. And the Congress may by general laws 
 prescribe the manner in which such acts, records, 
 and judicial proceeding shall be proved, and the 
 effect thereof. And the said records and judicial 
 proceedings, authenticated as aforesaid, shall have 
 such faith and credit given to them in every court 
 within the United States as they have by law or 
 usage in the courts of the state from whence the 
 said records are or shall be taken. It would have led 
 to absurdity if this had been held to mean that any 
 judgment that one state should see fit to authorize 
 should be valid not only in such state but in all the 
 states; for this would have left each state at the 
 mercy of all the others. So it has been frequently 
 decided that this does not mean that any divorce 
 valid where granted is valid everywhere, but that it 
 applies only to divorces granted by courts which 
 had jurisdiction over the parties and the subject 
 matter. More accurately, it applies to divorces 
 granted by a court w^hich had jurisdiction over the 
 
 328
 
 DIVORCE 
 
 parties and their marriage status or to such portion 
 of the decree as being in rem acts upon things within 
 the control of the state where the decree is passed, 
 and as being in personam, acts upon a person duly 
 summoned, or voluntarily appearing. Thus, if both 
 parties are domiciled out of the state where the 
 divorce is granted, such state, having no control of 
 their status, and therefore no jurisdiction over the 
 thing proceeded against, in granting the divorce 
 commits an act which no other state is, under the 
 United States Constitution, bound to recognize, 
 although there was full jurisdiction over the parties 
 by their voluntary appearance in the case. If this 
 were not true, a husband and wife could journey to 
 any state that pleased them and there get a divorce, 
 and the laws of their own state would be valueless. 
 Likewise, as there are both the status of the husband 
 and the status of the wife which the divorce can 
 affect a case can easily arise w^here a court will have 
 jurisdiction over one status and not over the other, 
 and where the decree, as far as other states are con- 
 cerned, will affect only the status of one of the 
 parties. If the court has jurisdiction over the status 
 of both of the parties, the decree must be recognized 
 in all the states, although one of the parties was not 
 summoned and did not appear. But such portions 
 of the decree as are in personam will not have full 
 effect unless the person has been duly summoned 
 or has appeared. 
 
 The rules of international law are neither as 
 specific nor as binding as the "full faith and credit" 
 clause of the United States Constitution ; but under 
 them generally, as under that clause, a divorce suit 
 is regarded as a proceeding against the status of the 
 parties, partly in personam and partly in rem. The 
 marriage state is recognized as a status, and to the 
 country which has control over that status, which, 
 
 329
 
 WOMAN UNDER THE LAW 
 
 as will hereafter be shown, is the country where the 
 parties are domiciled, and to that country only, is 
 given the right to dissolve the marriage and change 
 the status. But no country will consent to recognize 
 a proceeding which is contrary to its views of public 
 policy and morality, and will recognize even such 
 divorces as the United States Constitution would 
 not compel it to recognize, if they were granted in a 
 manner which it itself regards as just and proper. 
 
 A person's domicile is the place or country 
 either ( 1 ) in which he in fact resides with the inten- 
 tion of residence; or (2) in which having so resided, 
 he continues actually to reside, though no longer 
 retaining the intention of residence; or (3) with 
 regard to which, having so resided there, he retains 
 the intention of residence, though in fact he no 
 longer resides there. It is in fact his permanent 
 home. Such is domicile by the unwritten law; un- 
 der divorce statutes it is frequently called "resi- 
 dence." 
 
 Divorce statutes frequently require the com- 
 plainant to have been a "resident" of the state for a 
 certain time. Under such statutes "residence" 
 means domicile, — though distinctions have some- 
 times been made, — and the length of residence is 
 required as a precaution against a pretended resi- 
 dence and fraud. The residence under such statutes 
 must be actual, not merely w^ished for or intended ; 
 it must be bona fide, not taken for the purpose of 
 divorce to be given up afterwards; it must be per- 
 manent, not a mere visit. The residence must exist 
 at the time the suit is brought, though not neces- 
 sarily at the time of the trial; and it must continue 
 for the statutory time. A residence or domicile is 
 not given up or interrupted by temporary absences 
 for pleasure, business, or health. 
 
 In the United States at least, for the point does 
 
 330
 
 DIVORCE 
 
 not seem fully settled in England, husband and wife 
 may have distinct and separate domiciles, so far as 
 divorce jurisdiction is concerned. Ordinarily the 
 husband has the right to fix the matrimonial home; 
 he may move as often as he pleases, and his wife 
 must follow or she deserts him; and whether she 
 follows him in fact or not, her domicile in law fol- 
 lows his and is determined by his residence. But 
 there are exceptions; if the husband and wife are 
 divorced a mensa et thoro, the law secures to them 
 separate homes, and the wife has her separate 
 domicile; if he is guilty of conduct which justifies 
 her in leaving him, she must have the right to live 
 in a different place and to have her own domicile; 
 and as she has the right to separate from him when- 
 ever she has a cause for divorce against him, in all 
 such cases she may have her separate domicile. 
 Authorities have gone further, and the Supreme 
 Court of the United States has held that a wife may 
 have her separate domicile whenever this is just 
 and proper, while other cases have gone far towards 
 holding that in all divorce cases husband and wife 
 may have distinct domiciles. The identity of the 
 wife's domicile w^ith that of her husband is after all 
 but a legal fiction, and a wronged wife who is not 
 herself in fault may proceed against her husband in 
 the place where she is actually domiciled. But if 
 she is in fault, by the weight of the authorities, her 
 domicile remains his, and the courts of his domicile 
 have jurisdiction over her marriage status as well. 
 If she is not in fault, but has a cause for divorce 
 against him and is actually domiciled in another 
 state she cannot, by virtue of the legal fiction that 
 his domicile is hers, sue him in the courts of his 
 domicile as though she were residing in the same 
 state with him. And yet this is contradicted by 
 other authorities; and if a wife is sued in her hus- 
 
 331
 
 WOMAN UNDER THE LAW 
 
 band's domicile she may file a cross-bill as answer 
 though she be in fact domiciled in another state. 
 
 Jurisdiction to grant a divorce and dissolve the 
 marriage of any person is, as has been shown, 
 whether in the theory of divorce statutes or under 
 the "full faith and credit" clause of the United 
 States Constitution, or under the principles of inter- 
 national law, vested in that state w^hich has control 
 of the status of the person in question. The status 
 of marriage is the legal position of a married person 
 as such in the community or in relation to the com- 
 munity; — w^hich community is it which is in- 
 terested in such relation? None other than the com- 
 munity of which he is a member; that is, the com- 
 munity with w^hich he is living, so as to be one of 
 the families of it. But that is in fact the commu- 
 nity in which he is living at home, with the intent 
 that among or in it should be the home of his mar- 
 ried life. That is the place of his domicile. So 
 that generally speaking, divorce jurisdiction de- 
 pends upon domicile. The only fair and satisfac- 
 tory rule to adopt in the matter of jurisdiction is to 
 insist upon the parties in all cases referring their 
 matrimonial differences to the courts of the country 
 where they are domiciled. It is both just and reason- 
 able that the differences of married people should be 
 adjusted in accordance with the laws of the coun- 
 tries to which they belong, and dealt with by the 
 tribunals which alone can administer these laws. 
 Every state makes its laws for, and has the right to 
 control, the domestic status of those w^ho make 
 their home in it. When both parties are domiciled 
 in the state where their divorce is granted there is 
 no difficulty — the divorce is valid every"where. In 
 cases where the wife has a separate domicile, her 
 status will depend on the laws of a different state 
 from her husband; two different states are inter- 
 
 332
 
 DIVORCE 
 
 ested each in a different status arising from the same 
 marriage. If in such case the court of the wife's 
 domicile dissolves the marriage on her application, 
 not only is such divorce no bar to the husband's 
 application for a divorce in his state, but if he mar- 
 ries again on the strength of the divorce granted to 
 her, his courts may deem him a bigamist ; and such 
 will be the effect of such a divorce, except by comity 
 through which its validity may be recognized by 
 such states as, by similar legislation or in some other 
 w^ay, have consented to the granting of such divorces 
 for their citizens by other states. The courts where 
 neither party is domiciled have no jurisdiction at 
 all ; and, as such suits are not merely suits between 
 the husband and wife, but affect a public institu- 
 tion, their consent cannot confer jurisdiction, so 
 that where a divorce is granted in a state, where 
 neither party is domiciled but in a proceeding where 
 both parties have appeared, though both parties 
 may be personally bound, their marriage status is 
 not affected. Therefore, the divorce court of any 
 state where a husband or wife is then domiciled has 
 jurisdiction to dissolve his or her marriage, and no 
 court of any other country has such jurisdiction; 
 but in a few cases the jurisdiction of another coun- 
 try may be recognized by comity. And except un- 
 der unusual statutes, it does not affect this rule that 
 the parties were married, or the offense commit- 
 ted in some other state, even though in such state 
 it was no ground for divorce; or that at the time 
 of the marriage, or the offense, the parties were 
 domiciled elsewhere ; or at the time of bringing the 
 suit a domiciled party is temporarily abroad ; or that 
 a domiciled party o^wes allegiance to a foreign 
 power. 
 
 The following summary of rules will be help- 
 ful: 
 
 333
 
 WOMAN UNDER THE LAW 
 
 Rule 1. — A divorce granted by the court of 
 the domicile of both parties is valid everywhere un- 
 der the Constitution of the United States, and under 
 the principles of international law, although the 
 defendant has neither been summoned nor volun- 
 tarily appeared, provided that the laws of the 
 parties' domicile as to notice by publication or other- 
 wise have been complied with. 
 
 Rule 2. — A divorce granted by the court of 
 the defendant's domicile, or of the complainant's 
 domicile in a case in which the defendant has been 
 summoned or has voluntarily appeared is probably 
 valid as to both parties everywhere by comity. If 
 the defendant, though not regularly appearing or 
 summoned has had actual notice, or even if he has 
 had only constructive notice by publication or other- 
 wise, the divorce will be regarded valid as to both 
 parties by comity in such states as have adopted the 
 policy of such divorces by similar legislation or 
 otherwise. Even when not regarded as valid as to 
 the non-domiciled party, such divorces will be re- 
 garded as valid as to the domiciled party everywhere 
 by the United States Constitution and the principles 
 of international law. 
 
 Rule 3. — A divorce granted by the court of a 
 state where neither of the parties is domiciled will 
 not be regarded as valid in any other state, although 
 both parties have submitted themselves to the juris- 
 diction of the court. Now I understand the rule to 
 be, that to give the courts of any state jurisdiction 
 over the marriage relation between husband and 
 wife, one of the parties at least must have a domi- 
 cile within the state. Some of the decisions make 
 further requirements; but no court has ever held 
 that any less could be demanded. 
 
 Rule 4. — A divorce granted against a defend- 
 ant who has neither appeared nor been summoned. 
 
 334
 
 DIVORCE 
 
 though valid as far as it affects such defendant's 
 marriage status, will not be valid as far as it deals 
 with alimony, or costs, or prohibition against an- 
 other marriage, even in the state where it is granted. 
 Every state or sovereignty has the right to deter- 
 mine the domestic relations of all persons having 
 their domicile within its territory; and therefore, 
 when a husband or wife is domiciled within a partic- 
 ular state, the courts of that state can take jurisdic- 
 tion over the status, and for proper cause dissolve 
 the relation. The decree so pronounced is a judg- 
 ment in rem, and when not affected by fraud it is 
 valid everywhere, and under the constitution of the 
 United States such decrees are entitled to full faith 
 and credit in all the states of the Union. But such 
 judgments, when rendered on orders of publication, 
 can only have effect upon the thing acted on by the 
 decree, and such rights as are dependent upon that 
 for its existence. Therefore, if a court, on severing 
 the marriage tie, undertakes to render a decree in 
 personam as to alimony, it can have no extra-ter- 
 ritorial effect. But the marriage status being acted 
 on and dissolved by the decree, the relation becomes 
 severed, and continues so in all other states, and 
 property rights dependent alone upon its continued 
 existence must cease, not only w^ithin the state 
 w^here the divorce is rendered, but in all other 
 dominions. After such dissolution neither party 
 can obtain rights dependent upon its continued ex- 
 istence. The husband is no longer entitled to cur- 
 tesy and the wife's incomplete dower must cease. 
 And so the court would not allow a wife dow^er who 
 had been divorced on her husband's application on 
 notice by publication. 
 
 Rule 5. — A decree against a defendant who 
 has appeared or been summoned will bind him per- 
 sonally, though for want of jurisdiction over his mar- 
 
 335
 
 WOMAN UNDER THE LAW 
 
 ried status it may not affect that status in other states. 
 
 Rule 6. — The invalidity of a divorce due to 
 want of jurisdiction may be shov/n in any proceed- 
 ing in any court, such decree being conclusive of 
 no jurisdictional facts. In a Michigan case the hus- 
 band had moved into Indiana, and had taken up a 
 false domicile and secured a divorce. The Michigan 
 court went behind the record, declared the divorce 
 void, and said: "And if the record by its recitals 
 makes a prima face case of jurisdiction, no one in 
 another state or country is concluded thereby; but 
 he may show what the real fact was, and thus dis- 
 prove the authority for making such a record; the 
 jurisdiction of a foreign court is open, whatever 
 may be the recitals relating thereto in the judg- 
 ment." 
 
 Having ascertained w^hat state has jurisdiction 
 over his status, and which court in that state, the 
 complaining party examines the statutes of that 
 state and discovers what complaints he has which 
 he can allege as causes for divorce, and also w^hat 
 kind of divorce he may ask for. He then brings 
 suit, making the proper persons parties, alleging the 
 material facts, and praying for the divorce and such 
 other relief as he desires. Under the practice of the 
 court, process issues against the defendant by sum- 
 mons if she is in the state, and by publication or 
 otherwise, as provided by statute, if she is beyond 
 the jurisdiction of the court. After the expiration 
 of the proper time, either the defendant appears and 
 files her answer alleging such defenses as she may 
 have, or she makes default. The case then goes to 
 proof before a commissioner or referee, or in open 
 court before a judge or a judge and jury and the 
 facts and law being found, the judgment or decree is 
 entered. The decree, besides dealing with the mar- 
 riage relation, may affect the property rights or 
 
 336
 
 DIVORCE 
 
 children of the parties. Moreover, during the pen- 
 dency of the suit, preliminary decrees or orders may 
 be given in the case, for alimony or for the custody 
 of the children, or for the protection of some per- 
 sonal or pecuniary right of one of the parties. All 
 these matters must be separately discussed. 
 
 As has already been shown, a divorce suit is 
 not properly a suit at law or in equity, a suit in con- 
 tract or for tort, but a proceeding sui generis. In 
 the United States, divorce jurisdiction is generally 
 vested in the equity courts, and the pleadings and 
 rules of evidence are the same in divorce suits as in 
 other suits in equity, except that the process against 
 the defendant is somewhat different and the bill 
 cannot be taken for confessed. These courts, grant- 
 ing divorces so far only as empowered by statute, 
 apply the principles and practice of the ecclesiastical 
 courts so far as they are suited to our conditions 
 and the general spirit of our laws, and not modified 
 or limited by our statutes or rules of court. In in- 
 cidental matters and in the absence of special rules 
 the ordinary practice of the court is followed. 
 
 In some of the United States a jury trial is a 
 matter of right unless waived, and issues may be 
 sent to the jury at the request of either party. Else- 
 where no jury trial can be had, and the judge must 
 determine the whole matter. Where there is a jury 
 trial instructions are given to the jury as in other 
 cases. Now, in England, issues may be sent to a 
 jury in the discretion of the judge. In the ecclesias- 
 tical courts there was no jury, and the judge passed 
 upon both the law^ and the facts. Such is the case 
 in many states w^here divorce suits are brought in 
 equity; the testimony is taken before a commis- 
 sioner, and is then referred to the master in chan- 
 cery, who makes his report, upon which the judge 
 enters the decree. Sometimes statutes provide for 
 
 337
 
 WOMAN UNDER THE LAW 
 
 a reference of a case to a referee who reports to the 
 court, and the court decides the case. Neither a 
 judge nor a referee or master can delegate his 
 authority. Sometimes statutes provide that the case 
 must be tried in open court. The different modes 
 of trial are too much a matter of local practice to be 
 fully discussed here, and indeed a discussion of them 
 would be of no consequence to the reader. 
 
 Amendments will be allowed as in other cases, 
 and bills of particulars may be demanded, and the 
 court may order important papers to be produced 
 for its inspection. Of its own motion the court can 
 continue the case that new evidence may be taken. 
 The parties may by mutual consent discontinue 
 their suit. The complainant may withdraw his 
 charges; but he cannot discontinue his suit if an 
 answer in the nature of a cross bill has been filed. 
 There may be nunc pro tunc judgments as in other 
 suits. New trials may be granted as in other cases 
 whenever justice shall seem to require. 
 
 In general, the husband and the wife are the 
 only necessary and proper parties to a divorce suit ; 
 but in cases of disability the suit may have to be 
 brought or defended by a guardian, committee, or 
 next friend. In England, if the cause alleged is 
 adultery, the paramour must be a party if known. 
 Speaking generally, no one but the husband or wife 
 in person can be a complainant, as the suit is purely 
 a personal one, and the complaint must be signed by 
 the complainant in person. This w^ill appear in the 
 succeeding discussion. But any third person whose 
 pecuniary rights are involved may be made a de- 
 fendant. The state is always an informal party de- 
 fendant although not named, for the protection of 
 the public interests of the state and the children of 
 the parties, and in some states is formally repre- 
 sented by counsel. 
 
 338
 
 DIVORCE 
 
 As a general rule, a wife brings or defends a 
 divorce suit as though she were unmarried. The 
 practice in divorce suits, as has been shown, is partly 
 that of the ecclesiastical courts, partly that of chan- 
 cery court, and partly the result of statutes of the 
 particular forum. A wife sued and defended alone 
 in the ecclesiastical court, just if she were not 
 married. 
 
 In equity a married woman could not be sued 
 at all without her husband in a personal suit, and in 
 a suit respecting her property her trustee or hus- 
 band had to be joined; nor could she bring suit in 
 equity without joining her husband, trustee, or next 
 friend. As a matter of convenience and indeed of 
 necessity, the ecclesiastical practice has prevailed, 
 so that in the United States a wife, independently 
 of statute, usually brings her suit for divorce or de- 
 fends the same alone and in her ow^n name, though 
 in cases where she prays for some equitable relief as 
 to her pecuniary rights it is usual to join her next 
 friend, as she would were she suing for the same, 
 independent of the divorce. In some states, more- 
 over, the statutes deal with this subject, and the wife 
 is authorized to sue alone ; and where she is author- 
 ized to sue her husband in her ow^n name she may so 
 sue him, though there is another party joined with 
 him as defendant. When the w^ife improperly sues 
 alone the objection must be made by demurrer, and 
 cannot be made at all after the answer is filed. Al- 
 though the wife may be authorized to sue alone, this 
 does not necessarily imply that she may make con- 
 tracts for the services of attorneys, and concerning 
 other matters relating to the prosecution of the case, 
 as though she were not married. 
 
 Under the ecclesiastical practice, a guardian 
 ad litem was appointed to conduct the suit for an 
 infant complainant or defendant. In ordinary suits 
 
 339
 
 WOMAN UNDER THE LAW 
 
 in equity the practice is the same. And it would 
 therefore probably be proper independently of the 
 statute to have a guardian ad litem appointed for 
 any infant party to a divorce suit. But this is not 
 necessary, as the courts have held that one who is 
 old enough to marry is old enough to apply for a 
 divorce, and that one w^ho is old enough to acquire 
 matrimonial rights is old enough to enforce them; 
 so that for the purposes of a divorce suit full age is 
 the marrying age, and an infant husband or wife 
 may sue or defend in his or her own name. 
 
 Whether a divorce may be granted while one 
 of the parties is insane has been much disputed, as 
 great injustice may be done an innocent party both 
 by the refusal and by the granting of divorces in 
 such cases. There is a difference between the case 
 of an insane complainant and that of an insane de- 
 fendant, and the better view seems to be that, in- 
 dependently of statute, no divorce will be granted 
 on behalf of an insane complainant, but that the 
 insanity of the defendant, which has arisen after the 
 offense complained of, w^ill not bar the complainant 
 if the case is strictly proved. 
 
 The right to a divorce is strictly a personal right 
 which can be waived by the innocent party, and 
 which cannot be asserted except by his or her w^ill; 
 therefore, if the injured party be insane, no matter 
 how outrageous the conduct of the other party, no 
 matter what scandal may result, no relation or guar- 
 dian or committee can bring a suit for divorce ; and 
 if a divorce is obtained during the insanity of the 
 complainant it w^ill be regarded as a fraud, and w^ill 
 be declared void by a court of equity on the applica- 
 tion of a proper party. It has, how^ever, been held 
 that this reasoning does not apply to a suit for a 
 mere separation, or a nullity suit, or a suit for 
 alimony, or a suit for a share in the husband's es- 
 
 340
 
 DIVORCE 
 
 tate after his death. In England, under the general 
 divorce statute, the guardian of a lunatic may bring 
 such a suit ; and in some of the United States there 
 are similar statutes. 
 
 The fact that a party, after being guilty of con- 
 duct entitling the other party to a divorce, becomes 
 insane, should not bar such other party's remedy; 
 and the court, which takes care of the public in- 
 terest, will likewise protect the insane defendant 
 from fraud and abuse, but must grant the divorce 
 if the case is clearly made out. The insane defend- 
 ant may appear and defend by her guardian or com- 
 mittee. 
 
 In some states, in order to preserve the prop- 
 erty of spendthrifts, guardians may be appointed to 
 take charge of such property. Such a guardian 
 could not sue for divorce in behalf of the spend- 
 thrift, because as we have seen in the case of an in- 
 sane complainant, the right to bring such suit is 
 strictly personal, and depends upon the decision of 
 the complainant himself. But the fact that a guar- 
 dian has been appointed for a spendthrift does not 
 invalidate the spendthrift's power to decide for him- 
 self whether he will bring suit for divorce, and he 
 may bring such suit in his own name as though free 
 from disability. There may be other disabilities cre- 
 ated by statute, and how they would effect the right 
 to sue for divorce can be judged from the reasoning 
 in the cases already discussed and from the wording 
 of the statutes. 
 
 As has already been seen, the right to bring 
 suit for a divorce is a personal right, and no one ex- 
 cept the aggrieved husband or w^ife can exercise this 
 right, even though his feelings be outraged and his 
 pecuniary interests jeopardized by the continuance 
 of the marriage. Nor can a third person have him- 
 self made a party, whether he be an alleged para- 
 
 341
 
 WOMAN UNDER THE LAW 
 
 mour seeking to clear himself, or a creditor seeking 
 to secure his debt; but in such cases the courts will 
 allow such persons to make suggestions in the trial 
 of the case and to cross examine the witnesses. Ex- 
 cept under statutes the complainant has no right to 
 join an alleged paramour as a party defendant ; it is 
 only so far as pecuniary rights are affected that a 
 third person may be made a defendant. A w^ife 
 may make anyone a co-defendant who claims any 
 rights in property to an interest in which she may 
 be entitled in case the divorce is granted. She may 
 pray an injunction against a third party to prevent 
 the consummation of a fraudulent assignment, 
 may seek discovery against a suspected fraudulent 
 assignee, and may ask to have a fraudulent deed set 
 aside. In such cases she not only may, but should, 
 make such persons parties; for a divorce suit of 
 itself does not create the lien of lis pendens on the 
 husband's property. But a wife cannot join with 
 herself as complainant the guardian of her children, 
 and seek in the same case a divorce and the settle- 
 ment of property rights not connected therewith. 
 Third persons who have been made parties to a 
 marriage settlement betw^een a husband and wife 
 need not be made parties to a divorce suit between 
 them ; nor need their children be made parties, deep 
 as is their interest in the result of the suit. 
 
 Marriage is not a mere personal relation, but a 
 public institution, on the purity and integrity of 
 which the welfare of society largely depends; not 
 alone are the personal interests of the parties to a 
 divorce suit involved, but the interests of the chil- 
 dren and the interests of the public, as the public 
 stands related to and affected by the institution of 
 marriage; and for this reason marriages cannot be 
 dissolved by the consent of the parties, and it is the 
 
 342
 
 DIVORCE 
 
 duty of the divorce court in all cases to see that a 
 cause for divorce is fully proved, and that there has 
 been no imposition upon the court. In this way the 
 state through its judiciary is represented in every 
 divorce case; and the court will of its own motion 
 carefully scrutinize the evidence, listen to the sug- 
 gestions of outsiders, call for an explanation of 
 suspicious circumstances, and even postpone the 
 case and seek to bring about a reconciliation of the 
 parties where this seems proper and desirable. In 
 order to relieve the courts of the responsibility in 
 such matters, laws have been passed in some coun- 
 tries and states providing that the state shall appear 
 in divorce cases and be represented by counsel, 
 whose duty it is to see that the divorce is granted 
 only after being really and honestly contested. In 
 this sense the state is always a party to divorce suits, 
 and divorce suits are triangular. By statute in Eng- 
 land, the King's proctor intervenes in cases where 
 collusion is suspected and contests the suit. In 
 Scotland, the lord advocate so appears. In Georgia, 
 the court itself must look into the bona fides of the 
 suit, or appoint the solicitor general or other counsel 
 to do so. In Indiana, if no defense is made by the 
 defendant, the public prosecutor must make one. 
 And in Kentucky, the county attorney must resist 
 all divorce suits. 
 
 Upon the death of either party to a divorce suit 
 the action abates and cannot be revived. This rule 
 applies to the status and rights dependent solely 
 upon it, such as counsel fees and alimony, but not 
 necessarily to other matters for which relief is 
 prayed as a question regarding a marriage settle- 
 ment, or property right in which third persons made 
 parties are interested, as to which matters the suit 
 may perhaps be revived. 
 
 If a party dies after the case has been taken 
 
 343
 
 WOMAN UNDER THE LAW 
 
 under advisement by the court, the court may pass 
 a decree dated the day of the submission. If a party 
 dies after the case has been fully tried, but before it 
 has been submitted to the jury, judgment may be 
 entered as of the first day of the term; — such pro- 
 cedure being allowed under the particular laws of 
 the forum. 
 
 If, pending an appeal, a party dies, new con- 
 siderations arise. If a divorce has been refused, the 
 action abates finally. If a divorce has been granted, 
 the suit likewise abates, though perhaps, as to third 
 persons interested in the property, the suit might 
 be revived; and there are statutes in some states 
 under which the case may be carried to its final de- 
 termination. 
 
 The bill or libel of complaint in a divorce suit 
 need not be in any particular form or contain any 
 technical expressions; it need only set forth the 
 relief desired, and the grounds therefor clearly and 
 briefly, so as to make out a good prima facie case. 
 It should be signed by the complainant in person, 
 not by attorney, and should make the proper parties 
 defendants. It need not necessarily be sworn to, 
 though this is the usual practice, and is necessary in 
 some places by statute. 
 
 The bill must allege every fact upon the exist- 
 ence of which the authority of the court to grant 
 the divorce rests. It must set forth substantially in 
 the terms of the statutes of the forum ( 1 ) all facts 
 necessary to give the court jurisdiction over the 
 parties; and (2) all facts necessary to give the court 
 jurisdiction over the subject matter, to w^it: — the 
 marriage and cause or causes for divorce, if divorce 
 only be prayed, and such other facts as entitle the 
 complainant to any ancillary relief that may be 
 prayed. The allegations of the grounds of divorce 
 must be made with all possible particularity in order 
 
 344
 
 DIVORCE 
 
 that the defendant may be appraised of the nature 
 of the charges and be able to properly prepare the 
 defences. Whether there must be allegations nega- 
 tiving the defences depends largely upon the stat- 
 utes and practice of the particular state; in prin- 
 ciple there need be no such allegations, these are for 
 the defendant to make; but in some states they are 
 expressly required by statute, and in others they 
 have been held necessary by implication from stat- 
 utes allowing a divorce only to a party without 
 fault, or an injured party. Moreover, any fact may 
 be alleged which seems material, without doing any 
 particular harm. It is well always to deny present 
 cohabitation. 
 
 The bill of complaint should pray specifically 
 for the relief desired, and it is well to pray for such 
 further relief as the case may require. In equity, 
 if there is a prayer for special relief and also one for 
 general relief, although a case for specific relief is 
 not made out, such relief will be granted as it ap- 
 pears the complainant is entitled to. If an absolute 
 divorce is prayed, a limited divorce may be granted 
 under a general prayer; but a prayer for divorce 
 does not cover a decree of nullity. It is usual, 
 though not nesessary, to pray for alimony and the 
 custody of the children in the bill of complaint ; but 
 this is not necessary as it may be done by substitute 
 petition. A prayer may be made for alimony pen- 
 dente lite, for counsel fees, for custody of children 
 pendente lite, for an injunction to prevent the 
 alienation of the husband's property to defeat ali- 
 mony, or to prevent marital interference during the 
 suit, and for such other relief as may be sought. 
 
 Tw^o or more causes for the same kind of 
 divorce may be joined in the same complaint, but a 
 cause for absolute divorce may not be joined with a 
 cause for limited divorce. A suit for other ancillary 
 
 345
 
 WOMEN UNDER THE LAW 
 
 relief may be joined with the suit for divorce, but 
 not a mere collateral suit, such as the enforcing of a 
 deed, or the quieting of a title, or the settlement of 
 an estate. 
 
 As the first principle in divorce suits, grounded 
 on the public interests, is that the case shall be de- 
 cided on its merits, a court will in all cases, unless 
 great injustice would thereby be done, allow a com- 
 plainant to amend his bill of complaint. So, too, 
 a supplemental bill of complaint may be filed at any 
 time during the suit, covering matters w^hich have 
 arisen or been discovered since the filing of the 
 original bill. 
 
 Most defects can, of course, be obviated before 
 a final decree by amendment or by supplemental 
 bill; but if not thus removed more or less serious 
 results may follow^. When a jurisdictional fact does 
 not appear on the face of the bill of complaint, the 
 court can take no valid step; and it will not enter a 
 decree of divorce, though a good case has been 
 proved and though the defendant makes no objec- 
 tion, unless the proper prayers and allegations are 
 contained in the bill. No proof can be properly and 
 effectively produced except under the allegations; 
 if these are vague they furnish no ground for proof. 
 If the averments are insufficient the bill will be dis- 
 missed; if immaterial they w^ill simply be ignored 
 and treated as surplusage; if scandalous and imma- 
 terial they will be stricken out; if indefinite they 
 will not support proof, and will justify a demand 
 for a bill of particulars. If the bill is not properly 
 signed it will be dismissed. And as long as the bill 
 is defective no alimony pendente lite or counsel fees 
 will be allowed. But the answer may w^aive the 
 vagueness of the allegation. 
 
 Statutes alone create causes for judicial divorce 
 and to justify a divorce the ground of complaint 
 
 346
 
 DIVORCE 
 
 must be a cause for divorce by the laws of the 
 forum. In every state where a divorce can be 
 granted there are divorce statutes, which should be 
 referred to in connection with any question dis- 
 cussed in this chapter. In England and in each of 
 the United States, with one exception, divorce is 
 allowed, though the causes recognized are most 
 diverse. The exception is South Carolina, where no 
 divorce is allowed for any cause. 
 
 As to the time of the commission of the 
 offense alleged as a cause for divorce: — it should 
 have been committed after the passage of the sta- 
 tute making it a cause for divorce, and before the 
 filing of the bill of complaint; though a statute re- 
 ferring expressly to offenses already committed 
 w^ould not be unconstitutional, and an offense com- 
 mitted after filing the bill of complaint may be set 
 up in a supplemental bill. 
 
 As to the place of the commission of the 
 offense alleged as cause of divorce: — in the absence 
 of special statute this is immaterial; adultery com- 
 mitted abroad is as good a ground for complaint as 
 adultery committed at home. A statute making im- 
 prisonment in the state prison a cause for divorce 
 has, however, been held to refer only to imprison- 
 ment in the prison of the state of the forum. 
 
 The causes for divorce are divided as fol- 
 lows: — First, causes existing at the time of the mar- 
 riage and affecting the validity thereof, rendering 
 it void or voidable ; these are not properly causes for 
 divorce at all, but are causes for nullity of marriage; 
 and second, those arising after the parties have be- 
 come husband and wife, which are the only real 
 causes for divorce. Both these kinds of causes are 
 enumerated in the same statutes in many states, 
 the statutes authorizing the same kind of divorce 
 
 347
 
 WOMAN UNDER THE LAW 
 
 therefor; and the greatest confusion has been pre- 
 vented only by intelligent interpretation. 
 
 The causes for divorce recognized in the stat- 
 utes of the various states are as follows : ( 1 ) the 
 incapacity of one of the parties at the time of the 
 marriage, including nonage, mental incapacity, 
 physical incapacity or impotence, consanguinity 
 and affinity, and difference of race; (2) defects in 
 the consent of the parties to be married, arising from 
 error, fraud or duress. These causes are discussed 
 in the chapter on Marriage; (3) any offense in 
 the discretion of the court; (4) adultery; (5) 
 abandonment or desertion; (6) cruel and abusive 
 treatment; (7) gross and confirmed habits of in- 
 toxication; (8) refusal to support; (9) crime; 
 ( 1 0) obtaining divorce in another state. 
 
 The legislatures of some states have left the 
 grounds for granting a divorce more or less within 
 the discretion of the courts; a Connecticut statute 
 allows divorce for other causes, and for any such 
 misconduct as permanently destroys the happiness 
 of the petitioner, and defeats the purpose of the 
 marriage relation. A Kentucky statute allows 
 divorce for any cause in the discretion of the court. 
 Though the constitutional right to do this has been 
 recognized the policy of such statutes has been 
 much questioned and in most places the statutes 
 themselves have been repealed. 
 
 When the courts are thus given a discretion, 
 it is meant that it must be exercised upon some 
 salutary principle, and not in such manner as to 
 reduce the marriage relation to a mere state of con- 
 cubinage, at the mercy of the parties and the courts. 
 The discretion must be exercised in conformity with 
 the common-sense and feelings of the community, 
 and the principles of the existing legislation on 
 divorce. The court should prescribe to itself such 
 
 3A8
 
 DIVORCE 
 
 principles as sound law-givers, who allow divorce at 
 all, would send as a rescript to a judiciary. 
 
 When any conduct destroying the happiness of 
 the parties, is a cause for divorce, it is not enough 
 that a party has alleged that certain conduct has 
 destroyed the happiness and defeated the purposes 
 of the marriage, but the court must see that the wel- 
 fare of the parties and of the community demands 
 the divorce. An appeal lies from such discretionary 
 decision but the decision w^ill be reversed only in a 
 very clear case. When the statutes of the state 
 allow divorces both for specified causes and for 
 general causes in the discretion of the court, the 
 two grants are distinct; the court cannot in its dis- 
 cretion refuse to grant a divorce for a specified 
 cause, nor can a specified cause be proved under a 
 general allegation and appeal to the court's discre- 
 tion ; nor can the court grant a divorce for an offense 
 of the nature of the specified cause, but lacking 
 some essential element; but if there is a combina- 
 tion of circumstances bearing on several distinct 
 causes, but not quite sufficient to establish any one, 
 the discretion may be exercised. Under a statute 
 enumerating certain causes and leaving further 
 causes within the discretion of the court, the latter 
 provision w^as held to cover only such causes as 
 w^ere known at common law, and were not named in 
 the statute, and not therefore insanity. When a 
 statute says that for certain causes a court "may" 
 grant a divorce it does not mean "shall" but leaves 
 the matter in the sound discretion of the court. 
 
 As a cause for divorce, adultery is almost uni- 
 versally recognized; but not always simply adul- 
 terv, for aggravating circumstances, such as big- 
 amy, cruelty, or desertion, or scandalous or repeated 
 adulteries, are sometimes required. 
 
 Adultery may be defined as the voluntary 
 349
 
 WOMAN UNDER THE LAW 
 
 sexual intercourse of a wife with a man not her 
 husband, or of a husband with a woman not his 
 wife. It makes no difference whether the other 
 party is married or single, is free or a slave. A bona 
 fide belief of a husband that his wife is divorced 
 from him does not save his intercourse with another 
 woman from being adultery for the purpose of 
 divorce, but a bona fide belief that she is dead, it 
 seems, does. To constitute the offense the act must 
 be voluntary, and it is not adultery if a woman is 
 ravished, or is insane at the time of the intercourse. 
 When to be a ground for divorce, adultery must be 
 accompanied by bigamy, the adultery and bigamy 
 must be with the same person ; if cruelty is required 
 in addition to the adultery, it must be legal cruelty; 
 if desertion, it must be legal desertion, and must 
 be voluntary without the other party's consent, or 
 justifying conduct. When living in adultery is 
 required, a single or concealed act will not suffice, 
 though the intercourse need not continue to the 
 time of bringing the suit. In Kentucky, lewd and 
 lacivious conduct without proof of the act amounts 
 to adultery. 
 
 As already show^n, the place of the commission 
 of the adultery is immaterial; and so is the time, 
 provided that the adultery took place before the 
 filing of the bill or supplemental bill, and after the 
 passage of the act making it a cause for divorce. 
 
 It is with regard to the allegation and proof of 
 adultery that most questions arise. 
 
 Adultery must be alleged as adultery; and the 
 particulars of time, place, person, and circum- 
 stances, as far as known, should be alleged, — the 
 allegation of place and person being the most im- 
 portant. And the complainant must know enough 
 to make a specific charge, and he cannot allege 
 adultery generally with the intention of picking up 
 
 350
 
 DIVORCE 
 
 the evidence as he goes along; nor can he seek to 
 find out facts showing adultery by a bill of discovery 
 against the defendant. General allegations are, 
 however, sufficient when founded upon the de- 
 fendants pregnancy without access of complainant, 
 or venereal disease, or habitual adultery. And so 
 the allegation that the defendant is a prostitute is a 
 sufficient allegation of adultery, but this allegation 
 must be proved if made, and will not support proof 
 of a single act of adultery; and the same may be 
 said of an allegation that the defendant has been 
 living in adultery. In regard to these allegations, 
 the practice of different states is more or less strict; 
 and too general allegations may be waived by the 
 defendant if he files his answer without objecting. 
 Fuller allegations may be obtained by a bill of partic- 
 ulars. And defects may be obviated by amend- 
 ment. 
 
 The chief importance of the allegations lies in 
 their sufficiency to support the proof that may be 
 offered; the proof must correspond w^ith them. 
 Proof of adultery with A will not support an allega- 
 tion of adultery with B; nor will proof of adultery 
 at A sustain an allegation of adultery at B. The 
 particular offense alleged must be proved; if several 
 offenses are alleged, all need not be proved. 
 
 As to the nature of the proof, adultery may be 
 established either by the evidence of parties who 
 saw^ the act committed, or by proof of facts from 
 which intercourse may be inferred. It is a funda- 
 mental rule, that it is not necessary to prove the 
 direct fact of adultery, because, if it were otherw^ise, 
 there is not one case in a hundred in which that 
 proof would be attainable. It is very rarely indeed 
 that the parties are surprised in the direct fact of 
 adultery. In every case, almost, the fact is inferred 
 from circumstances that lead to it from a fair in- 
 
 351
 
 WOMAN UNDER THE LAW 
 
 ference as a necessary conclusion; and unless this 
 were the case, and unless this were so held, no pro- 
 tection whatever could be given to marital rights. 
 What are the circumstances which lead to such a 
 conclusion cannot be laid down universally, though 
 many of them, of a more obvious nature and of 
 more frequent occurrence, are to be found in the 
 ancient books. At the same time it is impossible 
 to indicate them universally; because they may be 
 infinitely diversified by the situation and character 
 of the parties, by the state of general manners, and 
 by many other incidental circumstances apparently 
 slight and delicate in themselves, but which may 
 have the most important bearing in decisions upon 
 the particular case. The only general rule that can 
 be laid down upon the subject is, that the circum- 
 stances must be such as would lead the guarded dis- 
 cretion of a reasonable and just man to the conclu- 
 sion; for it is not to lead a harsh and intemperate 
 judgment, neither is it to be a matter of artificial 
 reasoning, judging upon such things differently 
 from what would impress the careful and cautious 
 consideration of a discreet man. The facts are not 
 of a technical nature; they are facts determinable 
 upon common grounds of reason; and courts of 
 justice would w^ander very much from their proper 
 office of giving protection to the rights of mankind, 
 if they let themselves loose to subtleties, and remote 
 and artificial reasonings upon such subject. Upon 
 such subjects the rational and legal interpretation 
 must be the same. On account of the secret and 
 private nature of the offense, direct proof by wit- 
 nesses w^ho saw the act committed is very rare ; and 
 the best proof that can be expected is evidence that 
 the parties w^ere seen in the same bed, or lived to- 
 gether in the same house as husband and wife; 
 equally good is evidence that the defendant gave 
 
 352
 
 DIVORCE 
 
 birth to a child without access of the complainant, 
 or had a venereal disease too long after marriage 
 to have been the result of intercourse before mar- 
 riage. But in the mass of divorce cases adultery is 
 proved by circumstantial evidence of a great num- 
 ber of details in the life and conduct of the de- 
 fendant; and the circumstances from which adul- 
 tery may be inferred must be such as to satisfy a 
 reasonable and just man almost beyond reasonable 
 doubt; that is to say, that while the same amount of 
 evidence is not required as in criminal cases, adul- 
 tery is in fact a crime, and is the most serious of all 
 offenses against marriage, and can be proved only 
 by the clearest, most positive, and most satisfactory 
 evidence, and will not be held as proved if the facts 
 on which the charge is based are consistent with 
 innocence. 
 
 The proof should be tw^o-fold. It should show a 
 criminal attachment between the parties involving 
 a mutual intention or desire to indulge in inter- 
 course and opportunities to gratify that criminal 
 desire. If the criminal intention is shown, and op- 
 portunities have been ample, adultery will be pre- 
 sumed. Opportunities alone are not enough; nor 
 are opportunities with mere suspicious circum- 
 stances; but a number of suspicious circumstances, 
 none of which alone would be sufficient, may, com- 
 bined, justify the conclusion of guilt. If a man goes 
 to a house of ill-fame and shuts himself up with a 
 prostitute, there can be little doubt of his guilt; and 
 his entering such a house is strong evidence against 
 him which he must explain, — for example, by show^- 
 ing that he w^as employed as agent of a vice society 
 to go there; so it is almost conclusive against a 
 woman when she goes to such a house with a man 
 not her husband, or unattended; but she may ex- 
 plain that she did not know the nature of the house, 
 
 353
 
 WOMAN UNDER THE LAW 
 
 and was induced to go there by agents and spys of 
 her husband. If criminal intercourse is shown to 
 have taken place between two parties, it is presumed 
 to continue as long as they live under the same roof. 
 A judge must decide on the evidence as a jury 
 would. 
 
 The witnesses in a divorce suit for adultery 
 constitute an important factor, as the evidence is so 
 largely circumstantial, and slight variations may 
 change the w^hole significance of doubtful situa- 
 tions. The husband or wife can, in general, testify; 
 but even where the bill and answer are taken 
 as evidence, a divorce will not be granted w^ithout 
 other evidence. Confessions of adultery are, how- 
 ever, admissable, if not made for the purposes 
 of the suit, and if not obtained by fraud. The 
 witnesses usually called to prove adultery are ser- 
 vants, neighbors, children, the paramour, the para- 
 mour's husband or wife, detectives, and prostitutes. 
 The evidence of young children is not entitled to 
 much weight. The testimony of the paramour 
 should be listened to with caution, and should al- 
 ways be corroborated. And prostitutes, while not 
 wholly unworthy of belief, cannot be relied upon. 
 The court is not bound to believe any witness. More 
 will be said as to witnesses later on in this chapter. 
 
 The defenses in suits for adultery are either 
 in the nature of absolute denial, or of confession and 
 avoidance. Under the latter head are connivance, 
 collusion, condonation, recrimination and limita- 
 tions, which I shall discuss hereafter. 
 
 Next to adultery, cruelty is the most common 
 cause for divorce. Like adultery, it was a cause for 
 limited divorce in the English ecclesiastical courts; 
 and in the United States it is now found as a cause 
 for absolute divorce, and for limited divorce, ac- 
 cording to the various statutes. In general, in con- 
 
 354
 
 DIVORCE 
 
 struing the statutes of the various states, the rules 
 of the ecclesiastical law, as laid down in the eccle- 
 siastical reports, are followed as far as possible. 
 
 As a cause for divorce, cruelty is the wilful 
 and persistent causing of unnecessary suffering, 
 whether in realization or in apprehension, whether 
 of body or of mind in such a way as to render cohab- 
 itation dangerous or unendurable. Cruelty under 
 the civil law is called salvitia. In respect to the law, 
 the question naturally occurs, what constitutes 
 cruelty in view of the law. It is difficult and hardly 
 safe, and at the same time it is unnecessary, to de- 
 fine it affirmatively with precision. It can only be 
 described generally, and rather by effects produced 
 than by acts done. That the duty of cohabitation 
 is released by the cruelty of one of the parties is ad- 
 mitted, but the question occurs, what is cruelty? 
 Mere austerity of temper, petulence of manners, 
 rudeness of language, a want of civil attention and 
 accommodation, occasional sallies of passion, if they 
 do not threaten bodily harm, do not amount to legal 
 cruelty. I never knew^ of a case in w^hich the court 
 granted a divorce without proof given of a reason- 
 able apprehension of bodily harm. I say apprehen- 
 sion, because assuredly the court is not to wait until 
 the harm is actually done; but the apprehension 
 must be reasonable; it must not be an apprehension 
 arising merely from an exquisite and diseased sen- 
 sibility of mind. It is not mere disagreement or 
 incompatibility, for the parties take each other for 
 better or w^orse. Cruelty may be of a husband to 
 his wife or of a wife to her husband. We must con- 
 sider, in judging whether any particular conduct has 
 been cruel, the intent of the person w^hose conduct 
 is in question, its persistence, and its effect on the 
 other party's body or mind. 
 
 The injury must be done deliberately; it must 
 355
 
 WOMAN UNDER THE LAW 
 
 be wilful. Vices, gaming, gross extravagance, 
 might occasion great suffering and bodily ill health ; 
 yet this would not be cruelty. And the same may 
 be said of a disagreeable temper and rudeness, and 
 want of affection, and neglect, and of many mis- 
 takes due to ignorance. If a husband in good faith 
 charges his w^ife w^ith crime it is not cruelty but if he 
 does it to make her suffer, it is; so if he maltreats 
 the children, it is not cruelty; but if he does this to 
 annoy his w^ife and make her suffer, it is. And as 
 the conduct must spring from a free will, the acts of 
 a person while insane, are not cruelty; but if the 
 conduct results from an insane delusion, or from 
 miadness caused by drink, it may constitute cruelty. 
 The intent is generally show^n by the persistency of 
 the party in the course of conduct complained of, 
 and the intent to injure arising suddenly under great 
 provocation would not perhaps fill the requirements 
 as to deliberateness. A great provocation may 
 justify a certain amount of violence. 
 
 Generally, a divorce will not be granted for a 
 single act of cruelty. But acts of cruelty need not 
 become a fixed habit before relief can be had. It is 
 presumed that a single act standing by itself w^ill not 
 be repeated; but if the single act is one step in a 
 course of conduct, and the court is satisfied that 
 similar acts are likely to occur, the single act will be 
 sufficient. In such cases the reasonable apprehen- 
 sion of the injured party, and the mental suffering 
 thereby occasioned, constitute the cruelty. So that 
 under different circumstances a single act or an 
 entire course of life may constitute cruelty. 
 
 Personal violence or maltreatment of the per- 
 son to the injury of health, is legal cruelty. So is 
 conduct endangering life, limb, or health. So is 
 wilfully or recklessly communicating to her a 
 disease, such as the itch, or a venereal disease, or 
 
 356
 
 DIVORCE 
 
 impairing her health by excessive intercourse. But 
 every slight touching is not a bodily injury. What 
 is really injurious may depend upon the party's con- 
 stitution; and a gentle fragile woman might be 
 granted a divorce where an Amazon or a Spartan 
 would not. And so acts may be cruel to a woman 
 who is pregnant or otherw^ise ill, w^hich would not 
 be cruel to one in good health. 
 
 That the infliction of mental suffering is not 
 cruelty unless the suffering be occasioned by reason- 
 able apprehensions of bodily harm has been repeat- 
 edly decided. But in cases where cohabitation, and 
 life itself almost, is unbearable, the old rule should 
 certainly be relaxed. Conduct which produces per- 
 petual social sorrow, although physical food be not 
 withheld, may well be classed as cruel, and entitle 
 the sufferer to relief. Meaningless threats, not in- 
 tended to be executed, and so understood by the 
 party threatened, are not sufficient. Words of 
 abuse and of reproach create only resentment, and 
 are not legal cruelty; but w^ords of menace, intimat- 
 ing a malignant intention of doing bodily harm, and 
 even affecting the security of life, are legal cruelty. 
 The court is not to wait until the threats are carried 
 into execution; but is to interpose where the words 
 are such as might raise a reasonable apprehension 
 of violence, and excite such fear and terror as make 
 the life of the wife intolerable. If rendering the life 
 intolerable be the true criterion of cruelty, what can 
 have that effect more than continual terror, and the 
 constant apprehension of bodily injury? It may be 
 shown that there -were mere words of heat, but 
 prima facie it is to be understood that a man means 
 what he saj'^s. Many of the statutes by their terms 
 cover such mental suffering as render the party's 
 condition intolerable. So it is that in many states, 
 foul, obscene, and disgusting language, calculated 
 
 357
 
 WOMAN UNDER THE LAW 
 
 to degrade a wife and wound her feelings, may con- 
 stitute legal cruelty. So of foul and indecent con- 
 duct, as where a husband makes a brothel of his own 
 house. But the mental suffering, as we have seen, 
 must result from acts intentionally directed towards 
 the sufferer. 
 
 Instances. — The cruel conduct must be such 
 as to render the cohabitation of the parties unsafe or 
 unendurable. Thus a husband frequently drunken 
 w^ho chokes his wife, coarsely accuses her of un- 
 chastity, locks her up and threatens to smash her 
 head with a brick, is guilty of such inhuman conduct 
 as endangers her life. So repeated application of 
 coarse epithets to a wife, accompanied once by ac- 
 tual bodily harm and once by threats to take her life 
 has been held to be legal cruelty. But mere smash- 
 ing of dishes, threats to kick the wife out of doors 
 and grossly improper language have been held in- 
 sufficient to constitute legal cruelty. Pulling the 
 hair out of the wife's head is not only cruel, but 
 evidence of deliberation. Mere disregard of the 
 marriage obligations is not cruelty; nor is want of 
 affection; nor are slight differences and quarrels; 
 nor is desertion; nor is failure to support; nor is 
 refusal of sexual intercourse though this may be an 
 indignity ; but excessive intercourse may be cruelty, 
 or when the wife's health is delicate or w^here the 
 husband has a venereal disease. Mere immoral con- 
 duct is not; nor is masturbation in the presence of 
 the wife; but openly consorting with loose females 
 may help to make out a case of cruelty. Adultery 
 and habitual intemperance are not; though drunk- 
 enness causing ill-treatment may be. Whipping a 
 wife is cruelty, and so may be maliciously charging 
 her w^ith crime, or with unchastity, or maltreating 
 her children. But mere provoking and exasperating 
 conduct is not. Nor is it cruelty necessarily for a 
 
 358
 
 DIVORCE 
 
 husband to forbid his wife from going to church, or 
 visiting her family or relatives. Nor is a bona fide 
 groundless charge of crime or suit for divorce. 
 
 A party charged with cruelty may justify him- 
 self or herself by showing that the other party was 
 equally to blame. But a husband cannot justify 
 himself on the ground that he was exercising his 
 marital rights. 
 
 As we have seen, a husband has no right to 
 whip his wife. By the old law he could give his 
 wife "moderate correction"; but the rule now seems 
 to be that he can use force for prevention but never 
 for correction. The law is for the relief of an op- 
 pressed party and the courts will not interfere in 
 quarrels where both parties commit reciprocal ex- 
 cesses and outrages. Violence inflicted in a mutual 
 contest is not legal cruelty as in a case where a wife 
 refused to give up to her husband his keys, and was 
 thrown against the wall and bruised in the scuffle 
 that ensued. There is a certain conduct that may 
 be justified by the provocation; but groundless or 
 unreasonable jealousy is not sufficient provocation 
 for bodily injury, nor is bad temper. And nothing 
 could justify a husband in kicking his pregnant wife 
 in the side, or in attempting to burn his wife alive, 
 or in occasioning by his violence a premature de- 
 livery, or in refusing to his wife the common use of 
 air, or, in fact, in any acts which involve imminent 
 danger to health or life. These instances are taken 
 from adjudicated cases. The discussion of justify- 
 ing conduct is in reality a branch of the subject of 
 recrimination, which will be treated further on in 
 this chapter. 
 
 The charge of cruel conduct should be set forth 
 in the bill of complaint substantially in the words of 
 the statutes of the forum, and the material facts 
 relied on should be set forth, in some states with 
 
 359
 
 WOMAN UNDER THE LAW 
 
 considerable minuteness as to time, place, and cir- 
 cumstances, in others quite generally, according to 
 the practice of the court. There should be a general 
 allegation, as of cruel conduct, during a certain 
 time, and special allegations of particular facts, such 
 as infection with venereal disease. If the bill is too 
 general the defect must be taken advantage of by 
 special demurrer in some states; though of course, 
 the generality of the bill may be waived and partic- 
 ulars demanded. And the bill may generally be 
 amended. 
 
 The proof must correspond with the allega- 
 tions general and specific. Under a general allega- 
 tion, such as habitual cruelty, special facts besides 
 those alleged may be proved. When only special 
 facts are alleged it is doubtful how^ far proof of 
 general conduct is admissable. All the facts alleged 
 need not be proved, but only sufficient to constitute 
 a ground for divorce. The parties can testify by 
 virtue of statutes, but not otherwise, and their con- 
 fessions may be given in evidence, and declarations 
 made at the time of the cruelty may be proved as 
 part of the res gestae. So bruises may be shown if 
 connected with the defendant's conduct as evidence 
 of its violence, and drunkenness, abusive language, 
 etc., may be shown to prove the intent. 
 
 The defendant may deny that he was guilty of 
 cruel conduct, or plead justification, recrimination, 
 or condonation w^hich are hereafter discussed. 
 
 Abandonment or desertion of one party by 
 the other to a marriage is quite commonly a cause 
 for divorce under statutes in the United States and 
 Great Britain. In some states it is a cause for both 
 absolute and limited divorce ; in others only limited 
 divorces can be granted. 
 
 Desertion is a husband's or a wdfe's wilfully 
 and wrongfully ceasing to cohabit with his wife or 
 
 360
 
 DIVORCE 
 
 her husband. To establish desertion three things 
 must be shown : ( 1 ) Cessation from cohabitation 
 continuing the necessary time; (2) the intention in 
 the mind of the deserter not to resume cohabitation ; 
 (3) the absence of the other party's consent to the 
 separation, or conduct justifying the same. The 
 mere fact that the parties are Hving apart does not 
 even raise a presumption of desertion, but voluntary 
 living apart is in some states a separate cause for 
 divorce. Living apart by consent is not a ground 
 for divorce as desertion. But if continued for five 
 years it is a cause for divorce in Kentucky and Wis- 
 consin. Refusal of marriage intercourse is not 
 desertion; neither is absence, unless the absent 
 party's intent to desert is shown, and it is sometimes 
 made a separate cause for divorce also. Absence 
 unheard of for seven years is a cause for divorce in 
 Connecticut and Vermont, and for three years in 
 New Hampshire. A separation caused by a party's 
 imprisonment is not desertion, because it may 
 be involuntary; and it has been made a sepa- 
 rate cause for divorce. The above definition should 
 be qualified by the statement that one who wrong- 
 fully drives his or her spouse away is the deserter. 
 This matter will be discussed later on. 
 
 One of the elements of the desertion is that the 
 parties must have separated; there must be a ces- 
 sation of cohabitation. Ceasing to cohabit means 
 ceasing to live together as husband and wife — ceas- 
 ing to have a common home. For an absolute and 
 unjustified refusal to allow^ such intercourse has 
 been held not to constitute desertion, and the fact 
 that there was a single night of intercourse during 
 the period of the wife's persistent refusal to make 
 her home with her husband has been held not to 
 break the continuity of her desertion. But, on the 
 other hand, an offer by a husband to take his wife 
 
 361
 
 WOMAN UNDER THE LAW 
 
 back into his house but not to his bed has been held 
 not an offer to renew cohabitation. The question 
 of support is not involved in the questions relating 
 to desertion, unless under the provisions of some 
 particular statute. For if a husband refuses to live 
 with his wife, he does not, by supporting her, pre- 
 vent his separation from being desertion; and his 
 refusal to support her is not in itself desertion, nor 
 does it change the character of a separation. 
 
 The separation must continue uninterruptedly 
 for the necessary time. This time begins, the sepa- 
 ration existing w^hen the intent to desert is formed, 
 and runs on, no matter w^here the parties may be, 
 as long as they are apart; but it does not run during 
 the complainant's consent to separation, or w^hile 
 this is due to the complainant's fault. If cohabita- 
 tion is renewed for a time and then the parties sepa- 
 rate again, the periods before and after the renewal 
 cannot be added together. But though the parties 
 are apparently together for a time this is not a 
 renewal of cohabitation if the intent to desert con- 
 tinues. Thus, a wife's return to the family home 
 from time to time to look after the children and to at- 
 tend to certain household duties, she intending all 
 the w^hile not to resume cohabitation, does not break 
 the course of the desertion; nor, under similar cir- 
 cumstances does sexual intercourse. On the other 
 hand, a mere offer to resume cohabitation made by 
 the deserting party in good faith and unconditionally 
 and before the full statutory period of the desertion 
 has elapsed, stops the desertion and prevents a 
 divorce for this cause. The offer must be made in 
 good faith; it must be unconditional, and it must be 
 made before the desertion has lasted long enough 
 to constitute a cause for divorce. It is possible for 
 a husband to live in the same house w^ith his w^ife 
 and yet so seclude himself from her as to desert her. 
 
 362
 
 DIVORCE 
 
 The husband's home is the matrimonial home 
 and the home of the wife. He has the right to say- 
 where they shall both live; and he may change his 
 residence as often as his business, health, or pleas- 
 ure demands, and she must follow; if she does not, 
 she deserts him, — presupposing, of course, that the 
 husband is not in fault, as hereafter shown. So, if 
 the wife undertakes to change the family residence 
 and the husband will not follow she deserts him. It 
 is not, how^ever, an entirely arbitrary power which 
 the husband may exercise in this matter; his acts 
 must be reasonable and in good faith. While w^e 
 must recognize fully the right of the husband to 
 direct the affairs of his own house and to determine 
 the place of abode of the family and that it is in 
 general the duty of the wife to submit to such deter- 
 mination, he must exercise reason and discretion 
 in regard to it. If there is any ground to conjecture 
 that the husband requires the w^ife to reside where 
 her health or her comfort w^ill be jeopardized, or 
 even where she seriously believes such results will 
 follow^ as w^ill almost necessarily produce the effect, 
 and it is only upon that ground that she separates 
 from him, the court cannot regard her desertion as 
 continued from mere w^ilfulness. 
 
 The second element of desertion is the intent 
 to desert; the defendant's absence must be wilful, 
 it must be intended to be permanent, and this intent 
 must continue the statutory time. By "wilful" it 
 is not meant that the desertion must be malicious in 
 fact, but something more than mere indifference 
 must be show^n. The separation must be deliberate ; 
 and a separation where the husband's absence is 
 due to imprisonment, or to sickness, or under cir- 
 cumstances where a presumption of death is raised, 
 is therefore not desertion. 
 
 Again, if the party who has left the other is 
 
 363
 
 WOMAN UNDER THE LAW 
 
 looking forward to a renewal of cohabitation, as 
 w^here he or she is absent on business, or where 
 there are pending treaties for a renewal of cohabita- 
 tion, there is no desertion. Still, a woman's refusal 
 to cohabit "under existing circumstances" her hus- 
 band being poor, is a permanent enough intent. 
 
 Therefore, if the intent to desert does not exist 
 w^hen the separation takes place, the desertion be- 
 gins only from the time that such intent is formed. 
 So it usually ceases when the intent to desert stops. 
 But if it exists w^hen the separation takes place, the 
 desertion does not cease because the deserting party 
 becomes insane or is in prison. 
 
 In the case of a separation, that party is the 
 deserter who has the intent to desert, no matter 
 w^hich one leaves the matrimonial home. A party 
 who drives the other away is the deserter. A hus- 
 band who gets his wife to go aw^ay on a visit, and 
 then disappears, deserts her, though she has ap- 
 parently left him; and the party who refuses to 
 receive back one whose desertion has begun, but 
 who has repented and asked to be taken back, is the 
 deserter. 
 
 A separation by the mutual consent of the 
 parties is not desertion by either. But either party 
 may revoke such consent; and if the other party 
 when applied to refuses to renew cohabitation, it 
 is, from the time of such refusal, desertion on the 
 part of said party. The consent need not be ex- 
 pressed; it may be inferred from conduct. 
 
 One party to a marriage is justified in leaving 
 the other ( 1 ) by the latter's consent, express or im- 
 plied; (2) by such conduct on the part of the other 
 as is, as against such other, a cause for divorce ; and 
 perhaps (3) by such conduct on the part of the 
 other as is cruel and outrageous, though not 
 amounting to a cause for divorce. 
 
 364
 
 DIVORCE 
 
 The usual and correct rule is, that in the ab- 
 sence of consent, express or implied, one party is 
 justified in leaving the other only by conduct which 
 would justify a suit for divorce. Thus, one party 
 may leave the other for such other's adultery or 
 cruelty. Likewise during a suit for divorce. A wife 
 need not live with her husband's mistress but, to 
 follow the adjudicated cases, we find that one party 
 cannot leave the other because such other has fits, or 
 will not occupy the same bed, or gambles, or is poor, 
 or is a drunkard, or is charged with being guilty of 
 crime (this being no cause for divorce), or in case 
 of a wife, because her husband will not make the 
 servants mind her, or will not live with her father, 
 or allow her son to visit her, or allow her to go to 
 church, or because she fears having children, or 
 because he alone cannot satisfy her sexual desires. 
 
 The allegations must set forth the desertion 
 substantially in the phraseology of the particular 
 statute; and the circumstances of the desertion 
 must also be stated with some particularity. Thus 
 an allegation of wilful desertion for more than one 
 year is not sufficient under a statute requiring wil- 
 ful, obstinate and continued desertion. Nor is "un- 
 necessarily and w^ithout sufficient cause" sufficient 
 for "without sufficient cause and w^ithout the as- 
 sent"; nor is abandonment "more than three years 
 ago" abandonment "for three years together," but 
 the law is not as strict in regard to desertion as it is 
 with regard to adultery and cruelty. 
 
 The proof must substantially conform to the 
 allegations, and a good prima facie case of legal 
 desertion must be made out. The separation and 
 the intent to desert must therefore aWays be shown 
 by the complainant, but under the more prevalent 
 view the justification for separation is a matter of 
 defense, and must be made out by the defendant. 
 
 365
 
 WOMAN UNDER THE LAW 
 
 The desertion may be proved by a great variety of 
 circumstances, and under statutes the peirties may 
 in general testify themselves. 
 
 The defendant may deny the separation or the 
 intent to desert, or, confessing these, may make 
 pleas which are substantially those of connivance, 
 collusion, condonation, or recrimination. 
 
 As has already been shown, drunkenness is not 
 in itself a cause for divorce as cruelty, but by special 
 statutes it is in itself, if habitual, a separate ground 
 for divorce, in some states justifying absolute 
 divorce, and in some only limited divorce. Most 
 of the statutes state the cause simply as "habitual 
 drunkenness"; some require it to have been ac- 
 quired after marriage; some to continue one, tw^o, 
 or three years. The Kentucky statutes connect it 
 with "wasting of estate," which includes wasting of 
 time and health, w^hen that is the man's capital. 
 
 There must be both drunkenness and a habit. 
 Drunkenness is in this sense the effect of alcoholic 
 liquors, not of opium or chloroform. A habit is the 
 frequent and regular occurrence of excessive in- 
 dulgence, or getting drunk w^henever exposed to 
 temptation, or being usually drunk in business 
 hours, or being drunk for tw^elve or fifteen days at 
 a time four or five times a year for fifteen years and 
 generally being driven to drink by any excitement. 
 Sometimes the statute requires the habit to have 
 continued for a certain number of years. If the 
 statute is silent in this respect, it perhaps makes no 
 difference whether the habit was formed before or 
 after marriage, though this proposition is open to 
 grave doubt. But the habit must, it seems, be of 
 such a character as to render the marriage state in- 
 tolerable. 
 
 The allegations need not contain particular 
 facts; it is sufficient when the statutory clause is 
 
 366
 
 DIVORCE 
 
 "habitual drunkenness," to allege it in those words 
 without amplification. Still, it is always better to 
 make the allegations too full than too general. 
 
 The proof in such cases does not involve any 
 particular difficulties. What is habitual drunken- 
 ness is a question of law. Witnesses can testify 
 only to particular facts. Expert testimony, there- 
 fore, is inadmissable. And the proof should cor- 
 respond with the allegations. 
 
 As has already been shown, refusal to support 
 is not a cause for divorce, as cruelty, or as desertion ; 
 but it is made a separate ground for divorce in many 
 states, sometimes alone and sometimes connected 
 with desertion or bad treatment. In some states it is 
 a cause for absolute and in some for limited divorce. 
 
 The refusal or neglect to support must be wil- 
 ful, and must be such as leaves the wife destitute 
 of the common necessaries of life, or such as would 
 leave her so destitute but for the charity of others. 
 And the refusal must be of something which the 
 husband has or might get; mere honest ability to 
 support could never be a ground for divorce. If the 
 husband's failure to support be due to mental or 
 physical weakness, it is no cause for divorce. 
 
 The allegations may be in the general terms of 
 the statute. 
 
 The proof of particular facts may be made 
 under the general allegation, but neglect to provide, 
 being one of ability, was held no proof of neglect to 
 provide on account of idleness. The husband's 
 ability to provide must be affirmatively show^n. 
 
 The effect of imprisonment has been already 
 discussed. But statutes make crime of various de- 
 grees a separate cause for divorce. Instances: "Ex- 
 tremely vicious conduct" in Maryland; "gross mis- 
 behavior and w^ickedness" in Rhode Island; "a 
 crime against nature" in Alabama; "sodomy and 
 
 367
 
 WOMAN UNDER THE LAW 
 
 bestiality" in England; and "infamous crime involv- 
 ing the violation of conjugal duty, and punishable 
 by imprisonment" in Connecticut; "fleeing from a 
 charge of crime, the guilt being proved," in 
 Louisiana. 
 
 These statutes do not seem to have given rise 
 to any questions, though it has been held, under one 
 of them, that it is not "gross misbehavior" for a 
 husband to have a deep platonic affection for a 
 woman other than his wife. 
 
 Insanity existing at the time of a marriage is a 
 ground for the invalidity thereof, but insanity aris- 
 ing after marriage is not a cause for divorce under 
 any other head, in the absence of special statutes; 
 and such a statue seems to exist only in Arkansas. 
 
 As has been show^n, one person may be 
 divorced by a decree and the other still be married. 
 To obviate this condition of things by a statute in 
 some states, a divorce may be granted any person 
 whose spouse has obtained a divorce in another 
 state. 
 
 As has already been somewhat fully shown, it 
 is considered contrary to natural justice to proceed 
 to the determination of a suit without giving both 
 sides an opportunity to be heard, and therefore the 
 statutes of all states provide for a process to be is- 
 sued to summon resident defendants into court, and 
 for some kind of notice to be given to non-residents. 
 We have also seen that if the statutes of the state on 
 this subject are not conformed to, a decree of 
 divorce will be void. For instance, if a w^ife is living 
 apart from her husband w^ithout sufficient cause, his 
 domicile is in law her domicile; and in the absence 
 of any proof of fraud or misconduct on his part, a 
 divorce obtained by him in the state of his domicile, 
 after reasonable notice to her, either by personal 
 service or by publication in accordance with its 
 
 368
 
 DIVORCE 
 
 laws, is valid, although she never in fact resided in 
 the state. But in order to make the divorce valid, 
 either in the state in which it is granted or in another 
 state, there must, unless the defendant appeared in 
 the suit, have been such notice to her as the law 
 of the first state requires. If the statutes of the state 
 are conformed to, the decree will be valid within 
 the state, but valid or void w^ithout the state, in ac- 
 cordance with the rules of international and inter- 
 state law. There are thus two kinds of notice : ( 1 ) 
 notice by actual service of process w^ithin the juris- 
 diction of the court, which gives the court jurisdic- 
 tion over the person of the party so served; and (2) 
 notice by publication, and advertisement, through 
 the post-office, which gives the court no jurisdic- 
 tion in personam, but serves only to make the pro- 
 ceedings public, and to satisfy the demands of 
 natural justice, in order that the court may pass a 
 decree in rem respecting things within its jurisdic- 
 tion. But each kind of notice is appointed for a 
 special class of cases, and cannot be used for other 
 cases. All questions of notice are waived by volun- 
 tary appearance. 
 
 Under the statutes, if the defendant be a 
 resident or within the state, there must be actual ser- 
 vice of process in strict compliance with the law. 
 The service must be made by the proper party, and 
 in the proper manner. Service is good although the 
 party when served be in prison. If there are proper 
 allegations and affidavit that the defendant is about 
 to leave the state, a writ ne exeat may be served on 
 him, or, in New York, he may be arrested. 
 
 Under the statutes, if the defendant be a non- 
 resident, a notice by advertising the suit, or by 
 publication, or by mailing a copy of the complaint 
 to his address or his last address, or by some similar 
 proceeding, is required. And legislatures have 
 
 369
 
 WOMAN UNDER THE LAW 
 
 power to allow divorces to be granted though no 
 actual notice be given. Many states expressly allow 
 notice of this kind by their divorce statutes, and a 
 statute referring to all suits will be held to include 
 divorce suits. Under the statutes, the bill must al- 
 lege that the defendant is a non-resident, as tem- 
 porary absence on a voyage will not suffice, nor will 
 the fact that the defendant is in prison. And this 
 must appear by affidavit or other proof ; a return of 
 non est from two counties is not enough. If pub- 
 lication has been duly made, the court must proceed 
 to a decree. If it has been obtained by false affida- 
 vits, it is of no effect, and the judgment will be set 
 aside for fraud. These statutes are construed as are 
 similar statutes relating to other suits. It is disputed 
 whether in the case of an amendment to the com- 
 plaint after publication a new publication is neces- 
 sary. 
 
 The defendant having been duly summoned, 
 or publication having been duly made, if there is no 
 appearance or defence, the court may enter a 
 default, take testimony ex parte, and grant a divorce 
 in accordance with the statutes. Such divorce will 
 be valid within the state, and extra-territorially so 
 far as it is in accordance v«rith the international and 
 interstate law, as already discussed. Whether a 
 decree of divorce obtained by publication may, as 
 other equity decrees, be subsequently reopened by a 
 defendant who had no actual notice, is disputed. 
 
 When a bill has been filed, and the de- 
 fendant has been notified by summons or publica- 
 tion, he should appear and file his answer, plea, 
 or demurrer. The answer need not usually be 
 sworn to and is not in itself effective as evidence. 
 In the answer the defendant may deny the charges 
 and set up the several defences, or he may admit the 
 charges and confess the bill. As many defences as 
 
 370
 
 DIVORCE 
 
 he desires to make may be joined in the same 
 answer. The answer may be amended and new 
 defences set up. And a general denial has some- 
 times been held to cover all the defences. The 
 answer may take the form of a cross bill. The 
 answer of a third party defendant should confine 
 itself entirely to the charges against such third party. 
 The practice of the ecclesiastical and the equity 
 courts should be followed. 
 
 If the defendant does not answer, but allows 
 the case to go by default, the suit is settled as ageunst 
 him, but not as against the state, and it does not 
 entitle the complainant to a divorce. The court 
 may take off a default and allow the defendant to 
 answer. But while a default exists, the defendant 
 can take no part in the suit, save as an amicus 
 curiae. The default being entered the case goes on, 
 and proof must be taken; and a divorce will be 
 granted only if a good cause is made out and no 
 defence appears. 
 
 If the defendant answers but merely confesses 
 the bill and consents to a decree, the case must 
 nevertheless proceed just as if there had been a 
 default, for the state is a party, and a marriage can- 
 not be dissolved by consent of the husband and 
 wife. The parties may, however, dismiss the suit 
 by consent as the complainant has the right to par- 
 don all and any offences. 
 
 Cross-bills have already been somewhat dis- 
 cussed. The cross-bill may set up a cause for 
 divorce against the complainant, but the charges of 
 the original bill must be at the same time denied. 
 The answer thus plays a double part, and the case 
 made out by the cross bill may be prosecuted even 
 after the original bill has been dismissed. The cross- 
 bill in turn should be ansv/ered. 
 
 Besides the denial of the acts complained of, 
 
 371
 
 WOMAN UNDER THE LAW 
 
 there are five recognized defences to an action for 
 divorce, as follows : ( I ) Connivance, or the com- 
 plainant's consent to the acts complained of; (2) 
 collusion, or the agreement of the parties to make up 
 the case for the purpose of obtaining a divorce; (3) 
 condonation, or the complainant's forgiveness of 
 the acts complained of; (4) recrimination, or the 
 fact that the defendant has a cause of divorce against 
 the complainant; (5) delay or limitation, or that the 
 complainant has suffered an unreasonable time, or a 
 time limited by statute, to elapse since the occur- 
 rence of the acts complained of. These defences are 
 all consistent with a general denial. 
 
 These defences existed under the old ecclesias- 
 tical law^, and are recognized in the divorce courts of 
 the United States independently of statute. But 
 now in England, and in many states, statutes wholly 
 or partially cover the subject. The trouble about 
 the matter is, that so many new^ causes for divorce 
 have been introduced that it is hard to know how far 
 these defences will apply to them, as they originally 
 wholly applied only to adultery, and partially to 
 cruelty. It w^ill be found, how^ever, that the prin- 
 ciples underlying these defences are nearly every- 
 where applicable, which principles must now be ex- 
 plained. Connivance and collusion both involve 
 the prior consent of the complainant to the acts 
 complained of, and are defences upon the general 
 principle, volenti non fit injuria . Collusion differs 
 from connivance in being confined to cases where 
 the consent is mutual, and where the purpose is to 
 obtain a divorce by the pretence or act agreed upon. 
 Condonation is forgiveness or subsequent consent, 
 and if too readily given may amount to connivance 
 to future offences. Recrimination is a defence be- 
 cause the courts will not give relief to a guilty pcirty, 
 and because endless complications would arise if 
 
 372
 
 DIVORCE 
 
 the husband and wife could both be entitled to a 
 divorce at the same time. Lapse of time is a defence 
 because it raises a presumption of acquiescence or 
 consent. 
 
 Other so-called defences can all be brought 
 under these heads. For example, an agreement to 
 withdraw or compromise a suit is no defence, unless 
 it amount to condonation or collusion. So a deed 
 of separation, while a defence to a suit for desertion, 
 is no defence to a suit for adultery, unless made with 
 a view to future intercourse, in which case it 
 amounts to connivance. 
 
 The fact that a party has become insane after 
 commiting the offense is no defence, but no divorce 
 can be granted against a party who is dead. 
 
 As a general rule, the defences should be set 
 up in the answer with all the particularity required 
 of allegations in a complaint ; but there are two ex- 
 ceptions to this rule. First, the bill of complaint 
 (and indeed the proof) must not exhibit that there 
 is a good defence, or the divorce will be refused 
 though the defences be not pleaded; and second, 
 there is a usual practice in some states by which the 
 complainant is required in his bill to negative the 
 defences, and if this is not done the defendant may 
 have the bill dismissed. 
 
 The proof of the defences does not involve 
 special difficulties. It should correspond with the 
 allegations; and although in some states any de- 
 fences could be proved under the general issue, 
 generally the defences should be specially alleged. 
 When the defendant must allege the defences, he 
 must prove them. Connivance and collusion are 
 disgraceful, and must be strictly proved; condona- 
 tion may be even commendable, and such strict- 
 ness is not required. In recrimination the counter- 
 charge must be proved just as it would if a charge. 
 
 373
 
 WOMAN UNDER THE LAW 
 
 Connivance is the complainant's consent to the 
 commission of the acts complained of. It may be 
 active, as where the complainant has brought about 
 the act ; or passive, as where the complcdnant, after 
 due notice or w^arning, has taken no steps to prevent 
 it. The defence w^hich in law and reason is avail- 
 able to the party as the fullest contradiction of fact 
 is, that the husband himself v/as the author and ac- 
 complice of the crime; that he has practised a train 
 of conduct which led to her guilt, and which he fore- 
 saw and intended should lead to it; that he is, there- 
 fore, not the object of relief which the law gives to 
 the innocent only. The conduct, then, upon which 
 the wife relies for her defence is of a passive and 
 permissive kind, to be proved therefore by circum- 
 stances. Active conspiracy appears in overt acts, 
 but unless there are declarations to establish it, con- 
 nivance must in general depend upon circum- 
 stances, and is to be gathered from a train of con- 
 duct which the court is to interpret as well as it can. 
 An extreme case of connivance was sho^vn in a 
 New Hampshire case where a husband sold a night 
 with his w^ife for a scythe and snath. In a case of 
 connivance where a husband introduces a notorious 
 debaucher to his wife, intending that she may be 
 seduced, the mere fact of such introduction by him 
 raises a presumption of intent that she shall be 
 seduced. A husband who consents to the adultery 
 of his wife cannot make her criminal act a ground 
 for divorce. His consent bars his right to the decree. 
 And a husband who endeavors to procure his wife 
 to be hired into the commission of adultery will be 
 regarded as consenting to all subsequent acts of 
 adultery she may commit, whether they be com- 
 mitted with the person selected by him or with 
 others. So it is when the husband gets a friend or 
 agent to lead or entrap his w^ife into adultery. It will 
 
 374
 
 DIVORCE 
 
 be seen, therefore, that the defence of connivance is 
 based on the maxim volenti non fit injuria , and on 
 the principle that to one who consents, no wrong 
 is done and no redress is due. A husband's consent 
 is presumed if he knowingly allows familiarity such 
 as usually leads to sexual intercourse. But the hus- 
 band's conduct must be the result of his depraved 
 morals, and not simply of his innocence or bad 
 judgment, or his blindness resulting from trusting 
 affection. 
 
 Connivance as a defence is particularly ap- 
 plicable to a charge of adultery; so it has been ap- 
 plied to a charge of drunkenness, when the com- 
 plainant had supplied the liquor. In principle, if 
 not in name, it is applicable to desertion, as no 
 divorce will be granted for this cause if it appears 
 that the apparently guilty party has left the other 
 with the other's consent or through the other's fraud 
 or force; also, to cruelty, as w^here a wife inten- 
 tionally provokes or tantalizes her husband to mis- 
 conduct. 
 
 The allegation of connivance is not strictly re- 
 quired, the public is a party, and the court w^ould 
 make the objection though the defendant does not, 
 if the facts are brought to its notice. Still, it is bet- 
 ter to allege it except in those states where the com- 
 plainant is required to negative it in the complaint. 
 A plea of connivance is consistent with a general 
 denial. 
 
 The proof of connivance, especially in cases of 
 adultery, must be very strict, as every presumption 
 is against a husband being so debased as to consent 
 to his wife's adultery. It cannot be readily pre- 
 sumed that any husband w^ould act so contrary to 
 the general feelings of mankind as to be a consent- 
 ing party to his ov/n dishonor, the effect of which 
 would be to leave him legally bound for life to a 
 
 375
 
 WOMAN UNDER THE LAW 
 
 corrupt and adulterous wife. The proof need not 
 be of connivance at the special acts complained of ; 
 general connivance will suffice. There must be 
 proof of knowledge of adultery or of improper 
 familiarities. What amounts to proof of actual 
 know^ledge and concurrence is a question w^hich 
 depends on the circumstances of each particular 
 case. Indifference, ill-behavior, or cruelty, is not 
 evidence of connivance. But want of attention to a 
 w^ife's morals, to her conduct and associates, may 
 be; as where a husband with perfect indifference 
 allow^ed his wife to live with another man, and have 
 children by him. 
 
 Collusion is the agreement of the parties to 
 make up a case for the purpose of obtaining a 
 divorce. It may be active, as where a husband 
 agrees that he will commit adultery, that his wife 
 may apply for and get a divorce from him; or pas- 
 sive, as where the understanding is that the defend- 
 ant shall suppress facts which might constitute a 
 good defence. By way of amplification it may be 
 said that collusion, as applied to this subject, is an 
 agreement between the parties for one to commit or 
 appear to commit a fact of adultery in order that the 
 other may obtain a remedy at law^ as for a real in- 
 jury. Real injury there is none, where there is a 
 common agreement between the parties to effect 
 their object by fraud in a court of justice. If such 
 conduct were permissible, it would authorize parties 
 to violate their marriage vows and w^ould encourage 
 profligate and dissolute manners. The law, there- 
 fore, requires that there shall be no co-operation for 
 such a purpose, and does not grant a remedy where 
 the adultery is committed with any such view. It 
 is a fraud difficult of proof, since the agreement may 
 be known to no one but the two parties in the cause, 
 who alone may be concerned in it, for the adulterer 
 
 376
 
 DIVORCE 
 
 may be ignorant of the understanding. However, 
 it is no decisive proof of collusion that after the 
 adultery has been committed both parties desire a 
 separation; it would be hard that the husband 
 should not be released because the offending wife 
 equally wishes it; it would be unjust that the hus- 
 band should depend on her inclinations for his re- 
 lease; he has a right to it. 
 
 Making up a fictitious case of any kind is a 
 contempt of court. 
 
 Divorces are granted on public ground, and 
 not to suit the desires of individuals. To constitute 
 collusion, however, the parties must be acting in 
 concert, and some imposition upon the court must 
 be the purpose or result. Thus, while it is not col- 
 lusion for a husband to support his wife during the 
 suit, or for the wife to assist the proofs against her- 
 self, it is if the husband allows his wife support for 
 her silence as to certain matters which might injure 
 his case. Friendliness in carrying on the suit or 
 even mutual assistance in proving the actual facts 
 is not collusion. If the parties have made up a false 
 case, or kept back evidence which might be a good 
 defense, it is collusion. And likewise if one of the 
 p>arties has committed the act complained of on the 
 understanding that it should be made a ground for 
 divorce. If a party to a suit by agreement with the 
 other party procures the withdrawal from the notice 
 of the court of facts relevant to the charge w^hich is 
 imputed to him or her, that is collusion. 
 
 Collusion as a defense does not materially 
 differ from connivance, and is a defense applicable 
 to any case. 
 
 As to the allegation of collusion, the same rules 
 apply as those referred to under connivance. 
 
 The proof of collusion must be clear; it can- 
 not be assumed from mere suspicious circum- 
 
 377
 
 WOMAN UNDER THE LAW 
 
 Stances; and the defendant's confession of the 
 charge is no proof of collusion. 
 
 Condonation is the forgiveness by the com- 
 plainant of the act complained of, on conditions 
 performed by the defendant. Condonation thus in- 
 volves an act on the part of both parties. 
 
 The forgiveness ( 1 ) may be express or im- 
 plied; (2) it must be accepted ; (3) it must be freely 
 given; (4) it must be given with knowledge of the 
 delinquent's guilt. 
 
 The forgiveness may be expressed, as "I for- 
 give you"; or implied as from sexual intercourse 
 after knowledge of the offence. 
 
 The forgiveness must be accepted, for a mere 
 rejected proposal to forgive, or w^illingness to for- 
 give, would not suffice. There must be an accept- 
 ance on the part of the delinquent showing repent- 
 ance and an intention to "sin no more." 
 
 The forgiveness must be freely given, and not 
 obtained by force, or fraud and misstatements, or 
 false promises. 
 
 The forgiveness must be given advisedly; the 
 conduct alleged to have been forgiven must have 
 been known. Suspicion without proof is not suffi- 
 cient knowledge; and forgiveness of one act is not 
 forgiveness of others not known or suspected. 
 
 The forgiveness is alw^ays conditional. The 
 condition may be expressed, as that the delinquent 
 shall cease all correspondence with his paramour; 
 or it may be implied, for the law always implies the 
 condition that there shall be no just cause for com- 
 plaint in the future, or, as commonly stated, that 
 the delinquent shall treat the condoning party with 
 conjugal kindness. 
 
 If, therefore, after forgiveness of the defence 
 charged, the defendant has given the complainant 
 no just cause for complaint, the forgiveness will be 
 
 378
 
 DIVORCE 
 
 a good defence, but if the condition is broken it will 
 be no defence. 
 
 As a defence, condonation is applicable to a 
 charge of adultery, and of cruelty, and, in principle, 
 to other causes for divorce. 
 
 The allegation of the defence of condonation, 
 like that of other defences, should properly be made 
 by the defendant, though in some states it must be 
 negatived in the bill of complaint, and if it is made 
 know^n to the court, no divorce will be granted in 
 spite of its not appearing on the pleadings. So that 
 no divorce will be granted if it appears that the 
 parties have cohabited since the institution of the 
 suit. 
 
 The proof of condonation need not be as strict 
 as the proof of connivance, as the former is not a 
 base and criminal, but often a generous and noble, 
 act. Still it must be clearly shown that the com- 
 plainant freely forgave the offense, and knew of 
 the offense. Such knowledge may be circumstan- 
 tially proved. Condonation is a fact for the jury to 
 find under instructions. It may be proved under the 
 general issue. 
 
 Recrimination is a counter-charge by the de- 
 fendant of a cause for divorce against the complain- 
 ant. When each party has a cause for divorce 
 neither can obtain one. 
 
 Any cause for divorce is generally a good 
 defence against any other. Under the ecclesiastical 
 law recrimination, as such, was applied only in a 
 case of adultery against adultery; but, as has been 
 seen, separation was no cause for divorce as deser- 
 tion if justified by adultery or cruelty and cruelty 
 was no cause for divorce if both parties were equally 
 to blame. So that in effect the then known causes 
 for divorce destroyed each other. And statutes 
 upon this subject have been held to be declaratory 
 
 379
 
 WOMAN UNDER THE LAW 
 
 of the common law, but whether they abolish adul- 
 tery as an offense in other cases by making it an 
 offense when the charge is adultery, is disputed; and 
 a statute making "like offense" a defence, means 
 thereby an offense which is likewise a cause for 
 divorce. So that generally under the statutes any 
 cause for divorce is a defence against any other, 
 even though they be causes for different kinds of 
 divorce. 
 
 And the defence of recrimination is thus an 
 almost universal one. 
 
 The allegation of the counter-charge in re- 
 crimination should be made with the same particu- 
 larity required of the same cause as the ground for 
 divorce. And it may be alleged consistently with 
 a general denial. And this plea may be put in at 
 any stage of the case; if the offense has occurred 
 after the filing of the answer it may be set up in any 
 supplemental answer. 
 
 The proof of the counter-charge in recrimina- 
 tion must be the same as that required to prove the 
 charge; and the proof must make out what as a 
 charge would be valid ground for divorce. Thus 
 adultery committed by an insane party is no de- 
 fence. Nor is refusal to have sexual intercourse. 
 Nor is desertion which has not lasted long enough 
 to be a ground for divorce. Nor is an offense which 
 has been condoned. Recrimination against a wife 
 suing for divorce on account of cruelty was estab- 
 lished in Texas by the fact that in one of the alterca- 
 tions she had knocked her husband down and beaten 
 him severely. 
 
 Lapse of time betv/een the commission of the 
 offense complained of and the institution of the suit 
 may constitute a defence independently of statute 
 or by virtue of the statute. In the former case it is 
 prima facie evidence of connivance, collusion, or 
 
 380
 
 DIVORCE 
 
 condonation ; in the latter it is the defence of limita- 
 tions. 
 
 Lapse of time is not in itself a bar to an applica- 
 tion for divorce, independently of statute; but if 
 unreasonable, it raises a presumption of consent or 
 acquiescence, which presumption may be rebutted. 
 Thus, where a man returns home and found his wife 
 living in adultery with another man, and makes no 
 complaint for twenty years afterwards he was held 
 barred. Unreasonable delay is such delay as makes 
 it appear that the petitioner is insensible of the in- 
 jury of which he complains. 
 
 Two years unexplained delay has been held a 
 bar, and nineteen years delay has been satisfactorily 
 explained. 
 
 In many states there are statutes requiring a 
 suit for divorce to be brought within specified times 
 after the accrual of the cause. Such statutes apply 
 only to the causes named. The time begins to run 
 when the cause for divorce is first known, and runs 
 on though the offense is repeatedly committed. 
 
 No divorce can be granted on the mere plead- 
 ings by default, or by consent, but only after full 
 and satisfactory proof of all the essential allegations 
 on which the right to release is founded. In this 
 respect a divorce suit differs from the great majority 
 of actions, and is like proceedings in equity relating 
 to the lands of infants or insane persons. Proof was 
 thus required by the unw^ritten law, and is in most 
 states also required by statutes. Consult the sta- 
 tutes of the particular state. 
 
 A suit for divorce is a proceeding sui generis. 
 It is partly a suit in equity, partly a suit in the eccle- 
 siastical court, partly a civil suit, and partly a crim- 
 inal prosecution. The rules of evidence are there- 
 fore somewhat obscured. But the general prin- 
 ciples of civil suits, rather than those of criminal 
 
 381
 
 WOMAN UNDER THE LAW 
 
 proceedings, apply. The party charged with the 
 offense must be presumed innocent until proven 
 guilty ; and the burden of proof is on the complain- 
 ant to prove his case by a preponderance of the 
 evidence; and the graver the offense charged, the 
 stricter is the proof required. The proof should cor- 
 respond with the allegations ; proof without allega- 
 tions is in many matters w^orth no more than allega- 
 tions without proof. It is not sufficient that the 
 court should be morally convinced of the guilt of 
 the defendant; it must be satisfied that such con- 
 viction is founded on legal evidence applicable to 
 legal charges. 
 
 As already stated, a divorce cannot be granted 
 by consent; and as w^ill be explained farther on, in 
 most states the parties to a divorce suit cannot them- 
 selves always testify ; but the confessions and admis- 
 sions of the parties are often admissible as evidence, 
 though in some states by statute and in some by the 
 settled practice, no divorce will be granted on such 
 confessions or admissions alone. But when a con- 
 fession is full, confidential, reluctant, free from 
 suspicion of collusion, and corroborated, it is the 
 safest kind of evidence. A confession obtained by 
 fraud will not be given any weight. 
 
 Evidence, if relevant, will not be excluded on 
 account of its indecency. Although courts may not 
 refuse to consider details, however offensive and 
 disgusting, if they become necessary in the course 
 of investigation, yet they should always require the 
 witnesses to be examined in a spirit of due delicacy, 
 avoiding vulgar and obscene language. So, if com- 
 petent to testify at all, a w^ife may prove excessive 
 intercourse ; it is public policy which prevents a hus- 
 band or w^ife from proving non-access, and not 
 motives of decency. 
 
 The witnesses must testify to facts, and not to 
 
 382
 
 DIVORCE 
 
 opinions and conclusions, though the court may ask 
 them their opinions. The opinions of experts are 
 admissible in cases of impotence and insanity, but 
 not in cases of habitual drunkenness. The widest 
 latitude is allowed in cross-examining w^itnesses in 
 divorce cases. 
 
 At common law the husband or wife could not 
 testify for or against the other in any case, and this 
 law prevails in the United States, so far as not modi- 
 fied by statute. It is not affected by the statutes 
 destroying the incapacity arising from interest, for 
 this incapacity depends on public policy. But ex- 
 press statutes remove this incapacity wholly or 
 partially in many states. Still it must be noted that 
 this rule excluding the husband does not apply to 
 nullity suits, because they are a proceeding betw^een 
 parties not legally husband and wife. 
 
 The testimony of young children is admissible, 
 but is not entitled to much weight. It is exceedingly 
 unsafe to grant a divorce on the testimony of a 
 young child, and courts are not disposed to en- 
 courage the blameworthy practice of calling chil- 
 dren to testify against a parent. In some states 
 there are statutes controlling the testimony of young 
 persons. Not only is it w^rong to the child to ex- 
 amine it as to its parent's chastity, but owing to its 
 immaturity, its evidence is likely to be given without 
 understanding, and with bias. 
 
 As divorce cases arise out of domestic troubles, 
 the witnesses most likely to testify are the parties, 
 their children, their connections, their friends and 
 servants; all of w^hose testimony is admissible, but 
 very likely to be colored by prejudice. A maid can 
 hardly be expected to testify against her mistress. 
 
 Especially in cases of adultery, the complain- 
 ant depends very often largely on the testimony of 
 detectives, whose evidence is received with great 
 
 383
 
 WOMAN UNDER THE LAW 
 
 caution ; of prostitutes, who, it is said, will sell their 
 word as readily as their bodies ; and of accomplices, 
 whom a false feeling of honor justifies in saying any- 
 thing to clear the accused. The testimony of such 
 persons is admissible, but of no great weight with- 
 out corroboration. 
 
 Courts rarely are willing to grant a divorce on 
 the testimony of one person ; but there is no rule in 
 the United States, nor now in England, like that of 
 the ecclesiastical courts, which required at least two 
 witnesses to every fact. 
 
 The proof of each of the causes for divorce, 
 and of each of the defences, has been briefly dis- 
 cussed under each of those heads, and there are no 
 special rules relating to the proof of the jurisdic- 
 tional facts. The only remaining subject of im- 
 portance to be discussed is therefore the proof of 
 marriage in divorce cases. 
 
 Generally, just as a marriage may be alleged 
 it must be proved. Still, the object of statutes and 
 rules requiring full proof in divorce cases is to 
 prevent collusion in making out the grounds for 
 divorce; and as marriage is not a ground for di- 
 vorce, the reason does not apply to the proof of 
 marriage, and many cases seem to hold that w^hile 
 all other matters must be proved marriage must be 
 admitted, though this is also denied. If there be a 
 default, or if the marriage be denied, it must be 
 proved. If there has been no marriage, there can 
 be no divorce, but only a decree of nullity. An 
 agreement to marry will not suffice to base a divorce 
 suit on. Nor will a marriage which has been dis- 
 solved by death. Nor one which has been dissolved 
 by a valid and total divorce. But those divorces 
 which have no extra-territorial effect over one of 
 the parties do not so far destroy the marriage as to 
 that party as to prevent a divorce. 
 
 384
 
 DIVORCE 
 
 Marriage in divorce cases may be proved by 
 direct evidence of the celebration, or the contract, 
 as the case may be; and it may also, except in cer- 
 tain cases, be proved by cohabitation and repute. 
 The exceptional cases are those in which the proof 
 of marriage would render acts (which would not 
 otherwise be so), criminal, as suits where adultery 
 is the ground alleged. Another exceptional case is 
 that in which a marriage celebrated at a certain time 
 and place is alleged, in which case no evidence can 
 be introduced of a marriage by contract, or a mar- 
 riage celebrated at some other time and place. 
 
 Provision is made by statute in most states con- 
 ferring upon the courts, before which an application 
 for divorce is pending, authority to make such de- 
 cree as they may deem beneficial and expedient for 
 the care and custody of the minor children of the 
 parties; but such power would seem to arise upon 
 the institution of the suit for divorce or separation 
 in a court of chancery, independently of such stat- 
 utes, as being embraced in that broad and com- 
 prehensive jurisdiction with which courts of chan- 
 cery are vested over the persons and estates of in- 
 fants, and which attaches w^henever their aid is in- 
 voked with reference to an infant, although such aid 
 is invoked only incidentally to some other matter 
 which is the principal subject of controversy. 
 
 When once this jurisdiction attaches, it is 
 ample, effectual, and far-reaching, so that occasion 
 can rarely, if ever, arise for the interposition of any 
 other court in relation to the custody of the children. 
 
 Pending the trial of such suit affecting its cus- 
 tody, the child is, in legal contemplation, in the cus- 
 tody of the court, and at all times subject to its or- 
 der. Courts of common law will ordinarily decline 
 to entertain jurisdiction upon habeas corpus, if it 
 appear that there are proceedings in chancery rela- 
 
 385
 
 WOMAN UNDER THE LAW 
 
 tive to the custody, and it would seem that the 
 chancery courts may even restrain such proceed- 
 ings. 
 
 Whenever the custody of an infant is the sub- 
 ject of suit, the coqrts of chancery have full power 
 to make interim arrangements for such custody. 
 This power is to be exercised primarily for the bene- 
 fit of the child, and such custody may be committed 
 to either parent, or to a third party, upon such con- 
 ditions and under such restrictions as the court, in 
 the interest of justice and public policy, shall deem 
 fit to impose. 
 
 Upon the dissolution of the marriage by ab- 
 solute or limited divorce, the courts, looking mainly 
 to the welfare and interests of the children, in the 
 aw^ard of the custody should place them where such 
 interests will be best promoted and their happiness 
 secured. No certain rule for the government of the 
 courts in such' cases can be laid down, except this, 
 that the best interests of the children must be con- 
 sulted. The courts in such cases do not act to en- 
 force the rights of either parent, but to protect the 
 interests of the children. While the principle mak- 
 ing the welfare of the children the paramount 
 consideration in the determination of all questions 
 relating to their custody, no matter in what form 
 arising, is one of universal application. The pen- 
 dency of a suit for divorce is said to be a circum- 
 stance requiring more than ordinarily free applica- 
 tion of such principle. 
 
 If the child has arrived at an age of discretion 
 to choose for itself, the general rule is that no 
 restraint w^ill be placed on its determination, and it 
 will not be taken from one parent and given to 
 another against its wishes. The "age of discretion" 
 is ascertained not merely by the years of the child 
 (there being, strictly speaking, no definite time 
 
 386
 
 DIVORCE 
 
 between birth and majority that can be designated 
 as such), but by its capacity, information, intel- 
 ligence, and judgment. If, in any proceeding 
 touching its custody, an infant is able to make a 
 proper choice, the court is, in a large measure, re- 
 lieved from responsibility; and, with advanced 
 years, approaching to majority, the choice allowed 
 to an infant should increase, and to a large extent 
 determine the custody. If the child has not arrived 
 at an age of discretion, the courts, in their award of 
 the custody, look primarily to the fitness of the 
 parties, and their adaptability to the task of caring 
 for the children, taking into consideration the age, 
 sex, state of health, and other circumstances in the 
 lives of the children, and excluding no sources of in- 
 formation or methods of investigation, that are 
 likely to aid in making a proper selection. 
 
 Custody is ordinarily awarded to the innocent 
 and successful party to a divorce suit; but there is 
 no absolute rule upon the subject. The guilt or in- 
 nocence of the respective parties, according to the 
 reason and weight of the authorities, is material to 
 the question of custody only so far as it relates to 
 the fitness of the parties, for the task of caring for 
 the children. It was held in New York, upon a 
 proceeding by habeas corpus, that evidence of 
 cruel treatment by the husband of the wife is rel- 
 evant to the question of fitness for the custody of 
 the child, since a father who is cruel to his wife is 
 likely to be so towards his children. The leading 
 principle here as upon other points is to consult the 
 good of the children rather than the gratification of 
 the feelings and wishes of the parents. Therefore 
 the fact of either party's guilt is not sufficient to 
 prevent an award of the custody to such party, if 
 the interests of the children would be thereby sub- 
 served, and their welfare promoted. 
 
 387
 
 WOMAN UNDER THE LAW 
 
 The entire matter of the award is one largely 
 of judicial discretion, and in the exercise of discre- 
 tion, the courts often award some children to one 
 parent and some to the other, having regard to age, 
 sex, state of health, and other circumstances. Thus 
 children of a nearly equal age, will as a rule be kept 
 together, and the general inclination and tendency 
 of the courts are in the direction of giving the 
 j'ounger children and female children of all ages to 
 the mother; if the interest of the infant demands 
 such a course, the custody may be awarded to a third 
 party. Questions in regard to the religious educa- 
 tion of the children are sometimes considered in 
 the award of the custody, upon the separation of the 
 parents by the English courts; but the American 
 courts universally repudiate the notion that the 
 question of religious belief can enter into the the 
 determination of the custody. Yet upon grounds 
 connected with the temporal interests of the chil- 
 dren, the courts may confide the custody to a partic- 
 ular person, w^ith a view^ of having them brought 
 up in a certain religious belief. 
 
 The question of custody is not necessarily de- 
 pendent upon the action of the court in regard to the 
 divorce or separation of the parents. The courts 
 may dispose of the custody upon a bill for alimony 
 only, or upon a bill for divorce, even though the 
 divorce be denied. But when a divorce has merely 
 been applied for, and the court's action in relation 
 to the children has not been invoked, the custody 
 may afterwards be adjudicated in a separate pro- 
 ceeding by habeas corpus, but when the court has 
 acted upon the question of custody in a divorce suit, 
 its decree is res adjudicata , and cannot be collateral- 
 ly inipeached, or inquired into. The important dis- 
 tinction, must, however, be noted, that while such 
 decree binds the parties inter sese, the children 
 
 388
 
 DIVORCE 
 
 themselves are not bound or concluded by the de- 
 cree ; so that if a question in relation to the custody 
 subsequently arises upon habeas corpus , the award 
 in the divorce proceedings cannot overbear the re- 
 quirements of the good of the children, which may 
 necessitate the determination without reference to 
 the mere claim of the custody arising out of the 
 decree. The extra-territorial effect of the decree as 
 to the custody of the children has been upheld on 
 the one hand and denied on the other and qualified 
 in still another instance. 
 
 A decree in relation to the custody of the in- 
 fant children of the parties in a divorce suit has 
 been held to have the effect of constituting such in- 
 fants wards of the court ; and the courts may require 
 the infants to be kept within the jurisdiction. The 
 courts generally make provisions in the decree for 
 access by the party not having the custody to such 
 infants at reasonable times and places, but may 
 restrain such party by injunction from interfering 
 w^ith such custody. The decree in such cases ter- 
 minates the mere legal rights of the parent deprived 
 of the custody, but not necessarily the liabilities. 
 
 The power to amend or modify the decree in 
 relation to the custody of the children is provided 
 for by statute in a number of the states. As to the 
 power of the courts independently of such provis- 
 ions, a conflict of ruling obtains. On the one hand 
 it is affirmed that the infant children of the divorced 
 parties are, in some sense, the w^ards of the court, 
 and that the decree in relation to the custody may 
 from time to time be modified as the circumstances 
 may require under the general chancery pow^ers. 
 On the other hand the power is denied, and strictly 
 construed even when given by statute. 
 
 A divorce suit may be terminated by a decree 
 dismissing the bill of complaint which, unless made 
 
 389
 
 WOMAN UNDER THE LAW 
 
 "without prejudice," bars another action for the 
 same cause. The bill may be dismissed on applica- 
 tion of the defendant if the complainant does not 
 appear when the case is ready or abandons the suit, 
 or if the parties pendente lite resume cohabitation, 
 or if both parties desire it, or if a defence has been 
 established, or if there has been a verdict for the 
 defendant and the time for asking for a new^ trial 
 has elapsed. But the complainant cannot have his 
 bill dismissed if a cross-bill has been filed. The de- 
 cree may dismiss the complaint "w^ithout prejudice" 
 when the merits of the controversy have not been 
 determined; but not otherwise. Unless the bill is 
 dismissed "without prejudice" no action can after- 
 wards be brought on the same charges. A divorce 
 suit may also be terminated by a decree of divorce 
 a vinculo matrimonii ; or by a decree a mensa et 
 thoro; or by a decree of nullity of marriage; or the 
 decree may entitle the party to relief unless within 
 a given time a release to the contrary appears 
 (decree nisi). And the decree may grant the other 
 relief with the divorce or grant a divorce without 
 giving the guilty party the right to marry again. 
 
 In some states the court does not, after hear- 
 ing, immediately divorce the parties, but passes a 
 decree nisi , which can be made absolute only after 
 the expiration of a certain time, and provided no 
 cause to the contrary is meanwhile shown. If any 
 cause is shown, the decree nisi may be reversed; if 
 not, it may be made absolute. Until the decree is 
 made absolute the marriage is in full force, and the 
 wife is still a married woman under all the disa- 
 bilities of coverture. 
 
 As already stated, nullity suits or suits to have 
 a marriage declared void, are not discussed in this 
 chapter. Such decrees do not properly dissolve the 
 
 390
 
 DIVORCE 
 
 marriage, but declare that no valid marriage ever 
 existed. 
 
 When the court grants a divorce, dissolving 
 absolutely the mutual rights and obligation of the 
 husband and wdfe, the decree is known as a decree 
 of divorce, from the marriage bond, or a vinculo 
 matrimonii. 
 
 Such a decree absolutely dissolves all mar- 
 riage ties, and destroys the relation of husband and 
 wife. After the date of the decree, the husband 
 has no wife, and the w^ife has no husband, and the 
 woman is a feme sole. Even if one of the parties 
 is prohibited from marrying again, a marriage in 
 defiance of such prohibition is not bigamy ; not even 
 in such case is sexual intercourse with another per- 
 son adultery or any matrimonial offence. So after 
 such a divorce, therefore, the man and woman are 
 as strangers to each other; they may contract with 
 each other and sue each other; and the one surviv- 
 ing does not represent the other as widower or 
 widow, heir or personal representative. In the case 
 of an absolute divorce, the woman after the man's 
 death is not his widow, heir or personal repre- 
 sentative. With such divorce, curtesy, and dower, 
 and all marriage estates during coverture cease, 
 as does a provision made for a w^oman "during 
 coverture." Such a divorce dissolves a marriage 
 as absolutely as death does. If the parties have 
 different domiciles at the time of the decree beyond 
 the state granting the divorce one may be divorced, 
 while the other is not. 
 
 When the court grants a divorce which does 
 not absolutely destroy the relation of husband and 
 wife between the parties, but provides for their 
 living apart, the decree is known as a legal separa- 
 tion, or a divorce from bed and board or a mensa et 
 thoro. Such a divorce does not put an end to the 
 
 391
 
 WOMAN UNDER THE LAW 
 
 marriage ties, or destroy the relation of husband and 
 wife, but simply suspends certain of the mutual 
 rights and obligations of the parties, indefinitely or 
 for a limited time, or till they become reconciled 
 and live together again. Such a divorce does not 
 enable the parties to marry again, nor does it affect 
 their marriage property rights or estates dependent 
 upon coverture; but it may put an end to their 
 common interests, give the wife a standing as a 
 feme sole, and otherw^ise change their legal condi- 
 tion. The survivor is a widow^ or widower. 
 
 When the court is so authorized by statute, it 
 may, in granting an absolute divorce, prohibit the 
 guilty party from marrying again during the other 
 party's life time, or until some further decree; but 
 a decree of this kind entered against the party who 
 had not appeared or been summoned w^ould have 
 no effect, so it would be improper to enter such a 
 decree, with a divorce a mensa et thoro; or when 
 the prohibition is directly created by statute. 
 Whether the prohibition is contained in the decree 
 or in a statute, the efiFect is the same. Whether such 
 prohibition has any effect outside of the state where 
 the divorce has been granted is much disputed. In 
 most states such prohibition is regarded as a penalty, 
 and is therefore deemed to have no extra-territorial 
 effect. But in Maryland and North Carolina it is 
 held not to be a penaltj'^ but a denial of relief, and a 
 continuance of the incapacity to marry which ex- 
 isted before the divorce. In these two states, there- 
 fore, as capacity to marry depends upon domicile, 
 the prohibition w^ould be held to have equal effect, 
 wherever the party tried to marry, as long as such 
 party retained his or her domicile; but in the other 
 states the prohibition can be easily evaded. A New 
 Yorker prohibited by a New^ York court, has but to 
 step into New Jersey to be married, and the New 
 
 392
 
 DIVORCE 
 
 York courts will recognize the marriage. When 
 such prohibition is recognized, a marriage in dis- 
 regard thereof would be invalid, though it would 
 pot constitute bigamy or adultery. 
 
 As already shown, the decree may dispose of 
 the custody of the children of the parties and also 
 of their property; and it may likewise give relief 
 connected with such property. So in many states 
 the courts have the power to restore to the wife her 
 original name, though this is unnecessary, as a 
 woman after divorce may assume any name that 
 pleases her. Except in trademark cases, there is no 
 property in a name; and a person may with honest 
 intent assume any name that he or she pleases 
 without the aid of legislature or court. A wife need 
 not assume her husband's name if she does not w^ish 
 to and many actresses and literary women do not; 
 and a woman may assume the name of a man that 
 is not her husband. Since a name is thus merely a 
 matter of reputation or choice, no decree is neces- 
 sary to establish or change it. But in some states, 
 in order that sanction and publicity may be given to 
 a party's assumed name, the pow^er to change the 
 name is vested in some court, and the power to 
 change the names of the parties or to restore to the 
 wife her ante-nuptial or maiden name is often given 
 to divorce courts. Still, it has been said that a 
 woman is remitted to her former name and station 
 by an absolute divorce; that the name that she 
 acquired by her marriage becomes "her real name," 
 and that she can acquire a new name after divorce 
 only by reputation, and that there cannot be two 
 women entitled to the name of the same husband. 
 
 After the final decree of divorce has been en- 
 tered and the right of appeal has been lost or ex- 
 hausted its determination, if it is valid, is conclusive 
 upon the parties, and to a certain extent upon third 
 
 393
 
 WOMAN UNDER THE LAW 
 
 parties, but though a formal decree is prima facie 
 valid, it may be shown to be void and of no effect, 
 or to be voidable and be set aside. 
 
 The first distinction must therefore be made 
 between such decrees as are void, and such as are 
 merely voidable, A void decree is one that is of no 
 effect, and the invalidity of which may be made to 
 appear in any proceeding between parties; while a 
 voidable decree is one the validity of which cannot 
 be questioned collaterally, but only in a special pro- 
 ceeding before the proper court instituted by the 
 proper party for the purpose of having it avoided. 
 
 Want of jurisdiction in the court passing it is 
 the only cause which renders a decree of divorce 
 absolutely void; fraud does not, nor does irregular- 
 ity. As has been shown in discussing jurisdiction, 
 a court may have no jurisdiction at all to enter a 
 decree, or it may have jurisdiction only as to one 
 of the parties; or it may have jurisdiction over the 
 status of one of the parties, and not over the person 
 of such party ; and a decree may therefore be wholly 
 or only partially void. And the record is only prima 
 facie evidence of the jurisdictional facts that it 
 states. Any person may therefore show in any 
 kind of proceeding at law^ or in equity that a divorce, 
 the existence of w^hich is pertinent to the inquiry, 
 wras granted by the court which had not the proper 
 jurisdiction, and is therefore of no effect whatever. 
 Though such a decree need not be declared void, on 
 proper application, the court granting it would set 
 it aside as in the case of a voidable decree, and the 
 court of equity would probably declare it void under 
 its general jurisdiction. As above stated, fraud does 
 not render a decree void, but only voidable ; still, as 
 the proceedings to have a decree set aside for fraud 
 are not open to third persons, it has been said that 
 third parties may collaterally question a fraudulent 
 
 394
 
 DIVORCE 
 
 decree, which thus becomes, as far as they are con- 
 cerned, a void decree. If a party has joined in ob- 
 taining a void divorce he cannot set up its validity 
 against the other party if such other party has mar- 
 ried again, relying on the divorce. 
 
 Generally, a voidable decree can be avoided 
 only by the court which entered it, though some 
 cases hold that courts of equity may declare a di- 
 vorce void on the ground of fraud. The power to 
 vacate its judgments is the common-law power of 
 all courts, and extends fully to judgments of di- 
 vorce. And in some states the divorce courts have 
 fuller and special powers given them. 
 
 The injured party can apply to have the decree 
 avoided, but a third party cannot. The husband 
 and wife can probably apply jointly; and this was 
 done in a New York case in which the complainant 
 after divorce became convinced of the innocence of 
 his wife. But the party who has committed the 
 fraud cannot apply, nor can one who has acquiesced 
 in the decree. But the death or marriage of one 
 party does not bar the application of the other. 
 
 Within the term during which the divorce is 
 granted the court may vacate its decree for any 
 cause within its discretion. But after the term the 
 decree may be vacated only for irregularity, want 
 of jurisdiction, or fraud. A mistake will not war- 
 rant the vacating of a decree, but may be corrected. 
 
 In vacating the decree the court follows its own 
 practice, or, which is usually the same thing, the 
 practice of the chancery courts. The application is 
 duly made by petition or motion; the other party 
 is notified, if possible, and proof in the shape of 
 affidavits or in other form is considered. Before 
 granting the petition the court will use great cir- 
 cumspection, and will not act, probably, if the 
 divorce does not affect property or children. 
 
 395
 
 WOMAN UNDER THE LAW 
 
 When a decree of divorce is avoided it is ren- 
 dered void ab initio; the marriage relation of the 
 parties exists as if never interrupted. A second mar- 
 riage by either of the parties is void, and gives no 
 marriage rights, and no legitimacy to the children 
 resulting from it. 
 
 If the final decree is against the complcdnant, 
 and the bill is dismissed, it is conclusive, against 
 such complainant, who cannot afterwards rely on 
 the facts alleged. A decree dismissing the com- 
 plaint is conclusive as to the charges therein set 
 forth; and the same party cannot afterwards, even 
 in applying for a different kind of divorce, allege 
 the same adultery, cruelty, or desertion. But, of 
 course, facts occurring after the filing of the first bill 
 may be alleged in a subsequent case. But a dismis- 
 sal of the bill "without prejudice" is not conclusive 
 against the complainant; nor is a dismissal before 
 final hearing or in a plea in abatement or a non-suit. 
 If a divorce is granted and a decree is valid, it is con- 
 clusive upon the parties, of all facts found, and of 
 all facts which might have been proved in support 
 of the charges or the defences. Thus, it settles the 
 fact that the parties were duly married. In case of 
 an absolute divorce, the dissolution of marriage is 
 settled and neither of the parties can maintain an- 
 other suit for divorce. But statutes in some states 
 allow one party to obtain a divorce, if the other has 
 obtained a divorce in a different state, and so where 
 the divorce is partially invalid, there may be enough 
 left upon which to base another suit. Where a 
 limited divorce was granted for cruelty, it w^as held 
 conclusive as to cruelty in a subsequent application 
 for an absolute divorce, for cruelty and adultery. 
 
 A decree divorcing the parties wholly or par- 
 tially is conclusive on everyone as to their status. 
 But such a decree is not conclusive upon third per- 
 
 396
 
 DIVORCE 
 
 sons not parties to the suit, as to the marriage of the 
 parties, or as to their respective innocence or guilt. 
 Thus, when a third person sued a husband for neces- 
 saries supplied his wife, a decree of divorce deter- 
 mining that the wife was apart from her husband by 
 her own fault, or that she was or v/as not guilty of 
 adultery was held not conclusive. 
 
 397
 
 CHAPTER XIIL 
 ALIMONY 
 
 In divorce law alimony is the allowance which 
 the husband pays by order of the court to his wife, 
 while living separate, for her maintenance; or it 
 may be a like provision ordered for the sustenance 
 of a woman divorced from the bonds of matrimony 
 out of her late husband's estate, the latter branch 
 of the definition denoting a form of alimony known 
 only to the modern law. It may be for the w^ife's 
 use during the pendency of the suit, called alimony 
 pendente lite, or after its termination known as per- 
 manent alimony. 
 
 Where alimony is granted as an incident of 
 divorce, the court which has jurisdiction to decree 
 the divorce, has also the power to grant alimony, 
 provided it obtains jurisdiction of both parties; but 
 if the divorce was ex parte and the defendant is 
 domiciled in another state and does not appear, no 
 alimony can be granted, unless he has been duly 
 served w^ith process within the jurisdiction of the 
 court or appears and defends. 
 
 When the wife has obtained a divorce in one 
 state with which no alimony was granted, she has, 
 in some cases, been permitted to obtain in the court 
 in the domicile of her husband, a decree for alimony. 
 If after alimony is decreed the husband moves to 
 another jurisdiction the decree can be enforced in 
 the courts of the latter or by the United States 
 courts. 
 
 Without domicile there is usually no jurisdic- 
 
 398
 
 ALIMONY 
 
 tion to decree divorce, much less alimony; the lat- 
 ter being an action in personam. 
 
 The legislature in granting a divorce cannot 
 give alimony, but the jurisdiction to do so has been 
 given by statute, or assumed by the courts in some 
 states. 
 
 Alimony, under the English law, has no in- 
 dependent existence, and could only be granted as 
 an incident to some other legal proceeding, and ho 
 court, not even the ecclesiastical, could grant it if it 
 was the only relief sought. This doctrine was 
 adopted and followed in many states of this coun- 
 try. But in some of these, statutes now^ provide for 
 the wife's maintenance by the husband, where 
 without her fault she is separated from him. This is 
 in the nature of alimony, but is usually termed 
 maintenance. Before the statutes were passed in 
 some states, and in others w^here there is no statu- 
 tory provision, the courts held that it is one of the 
 ordinary equitable powers of a chancellor to grant 
 alimony without a divorce, entertaining it as an 
 original bill. 
 
 In those states in which jurisdiction is given to 
 the courts to decree this maintenance, the statute 
 which grants the power usually defines the circum- 
 stances under which the court may grant it. But 
 in those states in which the courts assume the juris- 
 diction, the circumstances which may exist which 
 entitle the wife are not so clearly defined. Deser- 
 tion, leaving the wife without means, is a sufficient 
 cause, but mere abandonment has been held in- 
 sufficient. Cruelty is another cause, but generally 
 it must be sufficient to entitle the wife to a decree 
 a mensa et thoro. The wife must show rectitude of 
 conduct on her part, if complaining of the ill con- 
 duct of her husband. She need not, however, be en- 
 tirely blameless. 
 
 399
 
 WOMAN UNDER THE LAW 
 
 The court can only decree maintenance •when 
 the same causes exist as were required by the ec- 
 clesiastical courts to grant a divorce a mensa et 
 thoro, or a restitution of conjugal rights. It has 
 been decreed, however, on slighter grounds. As 
 in the case of alimony, the court will not decree 
 maintenance for a wife who has sufficient separate 
 property for her needs. In general, the practice and 
 procedure is analogous to that in suits for alimony 
 with divorce. They must be living apart. The 
 court must decree a periodical allowance, and not 
 specific property, unless authorized by statute. And 
 it has been affirmed in New Jersey and Mississippi 
 and denied in Illinois that alimony pendente lite 
 can be allowed during the suit. Alimony in divorce 
 suits is now regulated in England, and in most of 
 the United States by statute. 
 
 Alimony pendente lite is that alimony decreed 
 to the wife during the pendency of the suit. This 
 is also regulated by statute in most of the states, 
 usually declaratory of the common law. The mere 
 pendency of the suit where the wife has no separate 
 means adequate to her support, and the husband 
 has the means, entitles her, v^hether plaintiff or 
 defendant, to alimony as long as the litigation con- 
 tinues. Alimony pendente lite to the husband un- 
 der special circumstances as well as to the wife is 
 allowed in Iowa, Wisconsin and Georgia. 
 
 As regards the marriage which must exist to 
 entitle the w^ife to a decree of temporary alimony, 
 as the merits are not gone into, the court will be 
 justified in granting the decree if the parties had 
 lived together and adjusted their property rights 
 on the basis of the validity of the marriage. So 
 alimony pendente lite has been allowed in nullity 
 suits, and also where the w^ife alleges and the hus- 
 band denies their marriage, though not where the 
 
 400 
 
 I
 
 ALIMONY 
 
 wife is complainant and asserts or is defendant and 
 admits the invalidity of the marriage. 
 
 A suit must be pending either for a divorce or 
 for separation. If the wife is complainant the hus- 
 band must have been properly brought into court, 
 until which time the court has no jurisdiction, as 
 no suit is pending. 
 
 After the husband is summoned and until the 
 suit has been dismissed, or a final decree has been 
 entered, the wife may at any time apply for and the 
 court decree temporary alimony. After final decree 
 it is too late, so if the suit has been dismissed. 
 
 During the pendency of the suit the wife must 
 be living separate from her husband. If they are 
 living together the allowance would be improper. 
 
 If the wife has means sufficient to maintain her 
 in the rank of life to which she is accustomed, no 
 temporary alimony will be granted her. If the hus- 
 band is destitute and the wife is complainant neither 
 suit-money nor temporary alimony will be decreed; 
 on the other hand if the husband is complainant and 
 destitute, the court may suspend the suit until some 
 provision is made for the wife, and if he cannot give 
 her the means to defend herself, he cannot have a 
 divorce. 
 
 The wife's application for alimony pendente 
 lite must show merits, and should be supported by 
 her own affidavit or that of others. It ought to 
 allege separation, pendency of a suit, her need, and 
 her husband's faculties and abilities. The husband 
 if defendant may present affidavits as to his wife's 
 means and his faculties, but not, it seems, if com- 
 plainant. 
 
 The alimony pendente lite usually is made up 
 of a sum to support the wife; to pay her counsel 
 fees and the expenses of the suit. And this the 
 court will award upon having the necessary facts 
 
 401
 
 WOMAN UNDER THE LAW 
 
 presented to it almost as a matter of course, despite 
 a plea to the merits or even to the jurisdiction. 
 
 The court, however, will not grant alimony 
 pendente lite if it appears that there was no mar- 
 riage, or if the wife admits guilt or is greatly at 
 fault, or does not make out a cause in her bill or is 
 acting in bad faith, or if her husband is insane, and 
 of course, if he does not appear. 
 
 It may be granted by the lower court or by the 
 appellate court pending an appeal and even after 
 verdict against the wife, if the cause has not yet had 
 a final hearing. The award is a matter within the 
 sound judicial discretion of the court. In some 
 states the decree by the lower court, of alimony 
 pendente lite is final, at least as to the amount. In 
 others it is subject to appeal, where it may be an- 
 nulled or altered. So the court which granted it 
 may cimend or revoke it. 
 
 The amount of alimony pendente lite is deter- 
 mined by no fixed rule, being in the discretion of 
 the court in view of the circumstances of each case. 
 The amount of alimony pendente lite is less than 
 that of permanent alimony, and like permanent 
 alimony is determined by considering the joint 
 means, the husband's faculties, facilities and abil- 
 ities, and the wife's property; whence the fortune 
 or property came, whether from the wife or the 
 husband, the ages of the parties, and the expenses 
 to which they are subjected, and the custody and 
 support of the minor children. 
 
 Taking all these circumstances into account, 
 the court will award the wife her just proportion; 
 as for instance, one fourth, one fifth, one eighth, 
 one half, which may in the discretion of the court 
 be increased or diminished as the cause progresses, 
 or may even be revoked. 
 
 As a part of this alimony, or besides this al- 
 
 402
 
 ALIMONY 
 
 lowance, the court will also allow her suit-money 
 and counsel-fees. 
 
 As shown before, alimony pendente lite may 
 begin as soon as the husband is "in court"; and if 
 the court does not annul the decree, it continues as 
 long as the suit is pending, but ceases when the suit 
 is dismissed, or the parties are reconciled, or one of 
 them dies, or a final decree is entered. 
 
 Permanent alimony is that alimony which is 
 granted after the termination of the suit. 
 
 The power to grant permanent alimony and 
 the circumstances under which it may be decreed 
 are regulated largely by statute. Generally it is al- 
 lowed in any case of divorce absolute or limited, 
 provided the marriage was a valid one. 
 
 But by statutes in many states it is allow^ed 
 only when the divorce is for adultery or other fault 
 of the husband, and by others when not for adultery 
 or misconduct of the wife. In other states a certain 
 part of the wife's estate, in the nature of alimony 
 is given to the husband, and in some states no dis- 
 tinction is apparently made between the laws gov- 
 erning alimony to the wife and alimony to the hus- 
 band. 
 
 The court may grant alimony, though not 
 specifically prayed for if the proper facts are before 
 the court. It usually, how^ever, should be specific- 
 ally prayed for either in the original bill, or by a 
 petition or affidavit setting forth the husband's 
 faculties and means. 
 
 It may be prayed for at any time before final 
 decree or after final decree if the divorce is a mensa 
 et thoro; though not, it seems, if a vinculo. The de- 
 fendant should be allowed to answer unless he is in 
 default. It is usually granted in the same judgment 
 with the divorce, but may be in a separate one. 
 
 It may be ordered to begin from the date of 
 
 403
 
 WOMAN UNDER THE LAW 
 
 final decree, or from the beginning of the suit. 
 
 In the absence of statute, the award is usually 
 a sum to be paid periodically, and not either specific 
 property, or a sum in gross. But by statutes in 
 some states, the court may award a specific part of 
 the husband's lands, and in others in the discretion 
 of the court either an allowance or a sum in gross. 
 
 In some states this is regulated by statute, but 
 usually like alimony pendente lite it is left to the 
 discretion of the court, w^ho considers the circum- 
 stances of each case, taking into account the hus- 
 band's faculties, the wife's means, the expenses to 
 be borne by each, the support of the children, and 
 the source from which the money came, whether 
 from the husband or the wife ; likewise the ages and 
 abilities of the parties and their conduct, giving 
 more to the w^ife if the husband w^as the offender 
 than if she had contributed to the fault, and a bare 
 maintenance if anything, if she w^ere w^holly wrong. 
 
 The court will also take into account what 
 amount the husband can readily pay without ren- 
 dering him destitute or impairing his business. If 
 the parties have made a fair bona fide agreement, 
 without any fraud, the court will adopt it as its 
 decree. 
 
 And after due consideration of the circum- 
 stances of the case the following amounts have been 
 awarded: one-third, one-half, from one-half to 
 one-third, one-quarter, from one-third to one- 
 quarter, two-fifths, not to exceed one-third his in- 
 come as the maximum. 
 
 A motion or petition may be presented setting 
 forth facts to lead the courts to increase or diminish 
 the amount of alimony decreed. This they usually 
 have the power to do in cases where the alimony 
 was decreed in a divorce a mensa et thoro, or in 
 cases of alimony without divorce. But not, it seems, 
 
 404
 
 ALIMONY 
 
 in cases where the court has no longer jurisdiction 
 of the parties, as in a divorce a vinculo, or where the 
 decree was a final settlement of the property-rights 
 between the parties, unless the court has reserved 
 this right in its decree, or it is given by statute, as it 
 is in many states. The power is only exercised in a 
 case that clearly calls for interposition, generally 
 some marked change in the circumstances of the 
 parties. 
 
 And from the decision of the lower courts, 
 there is usually an appeal. 
 
 In the jurisdiction in which the decree was 
 granted the court which granted it is the proper 
 court to enforce it, and although it has been said 
 that it is not a debt, yet it has been enforced as a 
 judgment, and if parties reside in different states, 
 by the United States courts; and has also been en- 
 forced in the different ways, according to the prac- 
 tice of the various courts, as an ordinary decree, by 
 supplementary proceedings, by execution, by scire 
 facias, by attachment, by sequestration, or by ap- 
 pointing a receiver, or by charging it on the land, or 
 by proceedings for contempt. 
 
 As a general rule, alimony cannot be enforced 
 after the death of either party. 
 
 After the suit has been begun the wife may 
 present a petition or affidavit alleging that the hus- 
 band is about to leave the jurisdiction, and upon 
 this the court may issue a ne exeat republica, which 
 will not be discharged until he gives security. 
 
 She may likewise obtain an injunction prevent- 
 ing the husband from alienating or charging his 
 property. Courts have also charged it on the hus- 
 band's land, appointed a receiver, assigned certain 
 property in trust for the wife, and ordered the hus- 
 band to give security for payment. 
 
 Permanent alimony ceases generally upon the 
 
 405
 
 WOMAN UNDER THE LAW 
 
 death of either party, or after reconciUation or by 
 statute upon the re-marriage of the wife ; and if the 
 alimony was granted with a divorce a mensa et 
 thoro, when they become divorced absolutely. 
 
 By statutes in many of the states, not other- 
 wise, the court has the discretion to aw^ard specific 
 property in place of alimony proper, thus dividing 
 the property between the husband and the w^ife. 
 In so doing they proceed upon the same principles 
 that govern the award of alimony. 
 
 Other statutes provide for the restoration of 
 the wife's property upon divorce, yet if the husband 
 has settled property on the wife, the court may not 
 grant the divorce unless she will execute a recon- 
 veyance of the property. 
 
 The wife's means are what she has or owns; 
 the nature or source are immaterial; it may be her 
 separate property or earnings, or she may be sup- 
 ported by her father, other relatives, or second hus- 
 band. The general rule is that if the wife has 
 sufficient means to support herself in the rank of life 
 to which she belongs, no alimony, temporary or per- 
 manent will be awarded her. 
 
 The husband's faculties are what he has or 
 can acquire by labor, mental or physical. From this 
 his debts must be deducted, and if then the husband 
 cannot support his w^ife, no alimony, temporary or 
 permanent will be decreed against him. If he is 
 complainant, however, and cannot give the wife 
 alimony pendente lite the court will not permit him 
 to proceed until he has made some provision for 
 her. 
 
 THE END. 
 
 406
 
 GLOSSARY 
 A 
 
 A fortiori: 
 
 By so much the stronger; all the more. 
 Ab initio: 
 
 From the beginning. 
 Actio personalis moritur cum persona: 
 
 A personal action dies with the person. 
 Ad litem: 
 
 For the suit. 
 A mensa et thoro: 
 
 Divorce from bed and board. 
 Amicus curiae: 
 
 Friend of the court; a stander by, not being a party to, or 
 
 interested in the cause, who informs the court of any decided 
 
 case, statute or other fact, of which it can take judicial 
 
 notice. 
 A vinculo matrimonii: 
 
 Divorce from the bond of matrimony. 
 Ante-nuptial: 
 
 Before marriage. 
 
 C 
 
 Cestui que trust: 
 
 He for whose benefit another person is seised of lands and 
 tenements, or is possessed of personal property. 
 
 Scire facias: 
 
 The name of a writ founded on some public record (Lat. 
 that you make known). 
 
 Contra bonos mores: 
 
 Against sound morals. 
 
 Chose in action: 
 
 A right to receive or recover a debt, the money, the dam- 
 ages for breach of contract; or for a tort connected with 
 contract, but which cannot be enforced without action. 
 
 Consent per verba de future cum copula: 
 
 Sexual intercourse in fulfilment of an agreement to marry. 
 
 G i
 
 WOMAN UNDER THE LAW 
 D 
 
 Devastavit: 
 
 The mismanagement and waste by an executor, adminis- 
 trator, or other trustee of the estate and effects trusted to 
 him as such by which a loss occurs. 
 
 De facto: 
 
 Actually; in fact; indeed. A term used to denote a thing 
 actually done. 
 
 De son tort: 
 
 Of his own wrong. This term is usually applied to a person 
 who, having no right to meddle with the affairs or estate 
 of a deceased person, yet undertakes to do so, by acting as 
 executor of the deceased. 
 
 De jure: 
 
 Rightfully; of right; lawfully; by legal title. Contrasted 
 with de facto. 
 
 Detinue: 
 
 To hold from; to withhold. A form of action which lies 
 for the recovery, in specie, of personal chattels from one 
 who has acquired possession of them lawfully but retains it 
 without right, together with damages for the detention. 
 
 Discovert: 
 
 Not covered; un-married. 
 
 Donatio mortis causa: 
 
 A gift made in prospect of death. 
 
 De novo: 
 
 (Lat.) Anew; afresh. When a judgment upon an issue in 
 part is reversed on error for some mistake made by the 
 court in the course of the trial, and venire de novo is 
 awarded, in order that the case may again be submitted to a 
 jury. 
 
 E 
 
 Emblement: 
 
 The right of a tenant to take and carry away, after his 
 tenancy is ended, such natural products of the land as have 
 resulted from his own care and labor. The term is also 
 applied to the crops themselves. 
 
 Entirety : 
 
 This word denotes the whole, in contra-distinction to moiety, 
 which denotes the half part. A husband and wife, when 
 seised of land, are seised by entireties and not as joint 
 tenants. 
 
 G 11
 
 GLOSSARY 
 
 Estoppel: 
 
 The preclusion of a person from asserting a fact, by previous 
 conduct inconsistent therewith, on his own part or the part 
 of those under whom he claims, or by an adjudication upon 
 his rights which he cannot be allowed to call in question. A 
 plea which neither admits nor denies the facts alleged by 
 the plaintiff, but denies his right to allege them. 
 Estovers: 
 
 (Estouviers, necessaries; from estofier, to furnish). The 
 right or privilege which a tenant has to furnish himself with 
 so much wood from the demised premises as may be 
 sufficient or necessary for his fuel, fences, and other agricul- 
 tural operations. 
 
 Facie ecclesiae: 
 
 In face of the church. 
 Feme covert: 
 
 Married woman. 
 Feme sole: 
 
 A single woman, including those who have been married 
 
 but whose marriage has been dissolved by death or divorce, 
 
 and those women who are judicially separated from their 
 
 husbands. 
 Fktione juris: 
 
 Judged to be false. 
 Flagrante delicto: 
 
 In the very act of committing the crime. 
 
 Garnishee : 
 
 A person who has money or property in his possession 
 belonging to a defendant, which money or property has 
 been attached in his hands, with notice to him of such attach- 
 ment; is so-called because he has had warning or notice of 
 the attachment. 
 
 H 
 
 Habeas corpus: 
 
 (Lat. that you have the body). A writ directed to the 
 person detaining another and commanding him to produce 
 the body of the prisoner at a certain time and place with 
 G iii
 
 WOMAN UNDER THE LAW 
 
 the cause of his caption and detention, to do, submit to, 
 and receive whatsoever the court or judge awarding the writ 
 shall consider in that behalf. This is the most famous writ 
 in the law; and having for many centuries been employed 
 to remove illegal restraint on personal liberty, no matter by 
 what power imposed, it is often called the great writ of 
 liberty. 
 
 Ignorantia legis neminem excusat: 
 
 Ignorance of the law excuses no man. 
 
 In pais: 
 
 This phrase, as applied to a legal transaction, primarily 
 means that it has taken place without legal formalities or 
 proceedings. Thus a widow was said to make a request in 
 pais for her dower when she simply applied to the heir 
 without issuing a writ; so conveyances are divided into 
 those by matter of record and those by matter in pais. In 
 some cases, however, matters in pais are opposed not only 
 to matters of record, but also to matters in writing, i. e. 
 deeds, as where estoppel in deed is distinguished from 
 estoppel in pais. 
 
 Inter sese: 
 
 Among themselves. 
 
 Inter vivos: 
 
 Between living persons; as a gift inter vivos, which is a 
 gift made by one living person to another. It is a rule that 
 a fee cannot pass by grant or transfer inter vivos without 
 appropriate words of inheritance. 
 
 In rem: 
 
 (Lat.) A technical term used to designate proceedings or 
 actions instituted against the thing, in contra-distinction to 
 personal actions which are said to be in personam. 
 
 In personam: 
 
 (Lat.) A remedy where the proceedings are against the 
 person, in contra-distinction to those which are against 
 specific things, or in rem. 
 
 Jure uxoris: 
 
 By right of a wife. 
 Jus disponendi: 
 
 (Lat.) The right to dispose of a thing. 
 
 G iv
 
 GLOSSARY 
 L 
 
 Laches 
 
 Unreasonable delay; neglect to do a thing, or to seek or 
 enforce a right at a proper time. 
 Locus standi: 
 
 A right to be heard. A right of appearance in a court of 
 justice, or before a legislative body on a given question. 
 
 M 
 
 Malum in se: 
 
 Evil in itself; a crime by reason of its inherent character. 
 
 Matrimonia debent esse libera: 
 Marriage ought to be free. 
 
 N 
 
 Ne exeat republica: 
 
 A high prerogative writ, issuing out of a court of chancery 
 to prevent a defendant debtor from going away and evading 
 the jurisdiction. 
 
 Nisi: 
 
 Conditional. 
 
 Non compos mentis: 
 
 Not of sound mind, memory, or understanding. A generic 
 term, including all the species of madness, whether it arises 
 from idiocy, sickness, lunacy, or drunkenness. 
 
 Nunc pro tunc: 
 
 (Lat. now for then). A phrase used to express that a thing 
 is done at one time which ought to have been performed at 
 another. 
 
 Pari passu: 
 
 (Lat.) By the same gradation. Used especially of creditors, 
 who, in marshalling assets, are entitled to receive out of the 
 same fund without any precedence over each other. 
 Particeps criminis: 
 
 A partner in crime. 
 
 Pendente lite: 
 
 (Lat.) Pending the continuance of an action; while liti- 
 gation continues. An administrator is appointed pendente 
 lite when a will is contested. 
 
 G V
 
 WOMAN UNDER THE LAW 
 
 Per se: 
 
 Taken alone, in itself, by itself. 
 
 Per verba de praesenti: 
 
 By words of the present; a promise. 
 
 Post-nuptial: 
 
 Something which takes place after marriage; as a post- 
 nuptial settlement, which is a conveyance made generally by 
 the husband for the benefit of the wife. 
 
 Power: 
 
 The right, ability or faculty of doing something. 
 The distinction between "power" and "right," whatever may 
 be its value in ethics, in law is very shadowy and un- 
 substantial. He who has legal power to do anything has 
 the legal right. 
 
 Technically an authority by which one person enables 
 another to do some act for him. 
 
 Pro tanto: 
 
 (Lat. for so much). 
 
 Per autre vie: 
 
 An estate for the life of another. 
 
 Quia timet: 
 
 (Lat. because he fears). A term applied to preventive or 
 
 anticipatory remedies. 
 
 R 
 
 Res: 
 
 (Lat. things). The terms res, bona, biens, used by jurists, 
 who have written in the Latin and French languages, are 
 intended to include movable or personal property, as well 
 as immovable and real property. 
 
 Res gestae: 
 
 (Lat.) Transaction; thing done; the subject matter. 
 Those circumstances which are the automatic and un- 
 designed incidents of a particular litigated act, and which 
 are admissible in evidence when illustrative of such act. 
 
 Res judicata: 
 
 A point already judicially decided. 
 
 Sub mode: 
 
 (Lat.) Under a qualification. A legacy may be given sub 
 modo, that is, subject to a condition or qualification. 
 
 G vi
 
 GLOSSARY 
 
 Sui juris: 
 
 (Lat. of his own right). Possessing all the rights to which a 
 free man is entitled; not being under the power of another, 
 as a slave, a minor, and the like. 
 
 Sui generis: 
 
 Of its own kind or class. 
 
 Civiliter mortuus: 
 
 In a state of civil death. In New York one sentenced to life 
 imprisonment in State Prison is civiliter mortuus. 
 
 Seisin : 
 
 The completion of the feudal investiture, by which the 
 
 tenant was admitted into the feud, and performed rights of 
 
 homage and fealty. 
 
 Seisin in fact is possible with intent on the part of him who 
 
 holds it to claim a freehold interest. 
 
 Seisin in law is a right of immediate possession, according 
 
 to the nature of the estate. 
 
 Statute of limitations: 
 
 In 1623 by sta. 21 Jac. 1. c. 16, entitled. "An Act for Limit- 
 ation of Actions, and for avoiding of Suits in Law," known 
 and celebrated ever since as the Statute of Limitations, the 
 law upon this subject was comprehensively declared sub- 
 stantially as it exists at the present day in England, whence 
 our ancestors brought it with them to this country; and it 
 has passed, with some modifications, into the statute-books 
 of every state in the Union except Louisiana, whose laws of 
 limitation are essentially the prescriptions of the civil law, 
 drawn from the Partidas, or Spanish Code. 
 
 U 
 
 Ultra vires: 
 
 The modern technical designation, in the law of corpora- 
 tions, of acts beyond the scope of their powers, as defined by 
 their charters or acts of incorporation. 
 
 User: 
 
 The enjoyment of a thing. 
 
 Usufruct : 
 
 (In civil law). The right of enjoying a thing, the property 
 of which is vested in another, and to draw from the same 
 all the profit, utility, and advantage which it may produce, 
 provided it be without altering the substance of the thing. 
 
 G vii
 
 WOMAN UNDER THE LAW 
 V 
 
 Vel non: 
 
 He dies intestate who either has made no will, or who has 
 not made one legally, or whose will has been annulled or of 
 whom there is no living heir. 
 
 G viii
 
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