(IJnrnf II Slavu ^rljonl Hibtary 
 
Cornell University Library 
 KFP 96.H96 
 
 3 1924 024 706 289 
 
 <i>J^''^-- 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024706289 
 
THE 
 
 LAW OF MARRIED WOMEN 
 
 IN PENNSYLVANIA, 
 
 A VIEW OF THE LAW OF TRUSTS 
 
 IN THAT STATE. 
 
 CLEMENT M. HUSBANDS, Esq., 
 
 OP THE PHILADELPHIA EAR. 
 
 PHILADELPHIA : 
 
 T. & J. W. JOHNSON & CO., 
 
 53 5 Chestnut Street. 
 1878. 
 
Entered according to Act of Congress, in the year 1878, by 
 
 T. & J. W. JOHNSON & CO., 
 in the Office of the Librarian of Congress, at Washington. 
 
 PRESS OF HENRY B. ASHMEAD, 
 1102 & 1104 Sansom Street. 
 
HENEY FLANDERS, Ekq., 
 
 or THE PHILADELPHIA DAK, 
 THE ACCOMPLISHED LAWYER AND AUTHOR, 
 
 ®^is Work 
 
 IS EESPECTFULLY DEDICATKD. 
 
PREFACE. 
 
 The design of the author, in the preparation of this vol- 
 ume, has been to put in a convenient and accessible form 
 for the use of the profession the law relating to married 
 women, in Pennsylvania, in its principal aspects ; and to 
 exhibit a view of the law of trusts as developed, chiefly, 
 by Pennsylvania decisions, embracing therein the rule in 
 Shelley's case; active and passive trusts; trusts for the 
 protection of married women, women in contemplation of 
 marriage, and of cestuis que trust against debts ; together 
 with the eifect of a power of appointment, and some minor 
 topics. If the book shall prove useful to the profession 
 in these respects, the end of the writer will have been 
 attained. 
 
 C. M. H. 
 
 Philadelphia, Hay, 1S7S. 
 
CONTENTS. 
 
 THE LAW OF MAEEIED WOMEl«f. 
 
 CHAPTEK I. 
 
 WHO IS A MARRIED WOMAN, 
 
 PAGE 
 1 
 
 CHAPTEK II. 
 
 VOID AND VOIDABLE MARRIAGES, 
 
 Incestuous marriages, 
 Absence of consent, 
 Blinors under age of consent. 
 Persons of unsound mind, 
 Marriage by force or fraud, 
 A husband or wife living, 
 
 18 
 18 
 21 
 21 
 21 
 21 
 
 CHAPTEK III. 
 
 RECIPROCAL OBLIGATIONS OP HUSBAND AND WIFE, 
 
 21: 
 
 CHAPTEK IV. 
 
 CONTRACTS OP MARRIED WOMEN, 25 
 
 Contracts between parties who afterwards intermarry, . . 25 
 Contracts between husband and wife. Grants and gifts by hus- 
 band to wife, ......... 26 
 
 Gift or loan by wife to husband, .... .32 
 
 Agreements to live separate, ...... 35 
 
 CHAPTER V. 
 
 HOW PAR THE WIPE MAY BIND HER HUSBAND BY HER CONTRACTS, 
 
 While living together, ... .... 
 
 While living apart, . . .... 
 
 CHAPTER VI. 
 
 husband's liability FOR THE TORTS, FRAUDS AND CRIMES OP 
 WIPE, 
 
 37 
 37 
 43 
 
 4(i 
 
VIU CONTENTS. 
 
 CHAPTER VII. 
 
 PAQE 
 
 HOW PAR SHE MAY BIND HERSELF OR HER ESTATE BY HER 
 
 CONTRACTS, . . 47 
 
 Her contract for necessaries, ....... 47 
 
 For repairs and improvements of her separate estate, . . 52 
 
 Mechanics' liens, ......... 54 
 
 Cannot execute writings obligatory or other personal obligations, 56 
 Her capacity to contract for payment of purchase money of real 
 
 estate purchased by her, ....... 59 
 
 Her capacity to mortgage her real estate, . ... 60 
 
 May take property by purchase, . . . . 64 
 
 Her capacity to transfer her personal property, ... 65 
 Her capacity to convey her real estate, . . . . .66 
 
 Her capacity to execute articles of agreement for the sale of her 
 
 real estate, ....... .68 
 
 Acknowledgment of deed, ....... 70 
 
 Husband as wife's agent, ... . 77 
 
 CHAPTER VIII. 
 
 HER RIGHTS OP PROPERTY, .79 
 
 Under the Act of 11th April, 1848, . . .79 
 
 Her title must be clear as against creditors of her husband. . 85 
 Having no separate estate, cannot acquire property upon her per- 
 sonal credit as against her husband's creditors, . . 91 
 jMay acquire property upon the credit of her separate estate, 93 
 Earnings of wife, ......... 95 
 
 Where her title is clear, creditors of husband will be restrained 
 
 from selling her property for his debts, . . . .96 
 
 Reduction of wife's ohoses in action into possession by husband, 97 
 Tenancy by the curtesy, ...... . 105 
 
 Effect of conveyance of real estate to husband and wife, . .112 
 
 CHAPTER IX. 
 
 HER CAPACITY TO SUE AND BE SUED, 114 
 
 Her capacity to sue, . . . . . . .114 
 
 To be sued, .... ..... 118 
 
 CHAPTER X. 
 
 HOW PAR HUSBAND AND WIFE MAY BE WITNESSES FOR OR 
 
 AGAINST EACH OTHER, 120 
 
CONTENTS. IX 
 
 CHAPTER XI. 
 
 PAGE 
 
 FEME SOLE TRADERS, 125 
 
 CHAPTER XII. 
 
 POAVER OP WIPE TO DISPOSE OP HER PROPERTY BY WILL, . . 1.31 
 
 As against her husband, 133 
 
 CHAPTER XIII. 
 
 WIPE DYING INTESTATE, . . 1.35 
 
 CHAPTER XIV. 
 
 HER RIGHTS IN HER HUSBAND's ESTATE, 137 
 
 Dower at common law, , . . . . . . . .137 
 
 Her statutory interest, . . . . . . . .137 
 
 Devise or bequest by husband to wife to be in lieu and bar of 
 
 dower, but she may elect, . . ... 138 
 
 Election by widow by matter in pais, ..... 141 
 
 Proceedings to compel election by widow, . . 143 
 
 Assignment of widow's share in her deceased husband's real estate, 144 
 Nature of widow's share, ........ 148 
 
 Widow's remedy to recover her share, ..... 149 
 
 Share of widow to be in lieu and satisfaction of her dower at 
 
 common law, ......... 152 
 
 Jurisdiction of courts where lands to be divided lie in one or 
 
 more counties, ......... 153 
 
 Action of dower not to abate by reason of death of plaintiif, . 154 
 Some modes by which dower may be barred, . . . 154 
 
 CHAPTER XV. 
 
 WIDOW MAY RETAIN THREE HUNDRED DOLLARS, . 156 
 
 May retain property under the Domestic Attachment Act, . .164 
 CHAPTER XVI. 
 
 CERTAIN ACTS AND FUNCTIONS A MARRIED WOMAN MAY PERFORM, 160 
 
 She may act as trustee, administratrix, &c,, . . . .166 
 She may exercise parental rights to the exclusion of the husband 
 
 in certain cases, ........ 166 
 
 She may appoint a testamentary guardian of her children in 
 
 certain cases, . . . . . . . . .167 
 
X CONTENTS. 
 
 CHAPTER XVII. 
 
 PACK 
 
 IN CASE OF wife's INSANITY, 168 
 
 Illegitimate children, ........ 168 
 
 CHAPTER XVIII. 
 
 SETTLEMENT OF MARRIED WOMEN UNDER THE POOR LAWS, . 170 
 
 CHAPTER XIX. 
 
 DESERTION OF WIPE OR CHILDREN BY HUSBAND, OR OF CHILDREN 
 
 BY THE MOTHER, 172 
 
 CHAPTER XX. 
 
 DIVORCE, 18i 
 
 Divorce from the bond of matrimony. Causes of divorce, . IS-t 
 Naturally impotent or incapable of procreation, . . .185 
 
 Second marriage while first subsisting, .... 186 
 
 Adultery 189 
 
 Desertion, .......... 192 
 
 Cruel and barbarous treatment by the husband of the wife, . 190 
 
 Indignities to the wife's person, ...... 197 
 
 Cruel and barbarous treatment by wife of husband, . . . 199 
 
 Marriages within the degrees of consanguinity or affinity, . 201 
 
 Marriages procured by fraud, force, or coercion, . . . 202 
 
 Conviction of felony, ........ 203 
 
 Where the wife is lunatic, or non compos mentis, . . . 203 
 Absence for two years, and on false rumor of death, the other 
 
 marries again, and absent one returns, .... 204 
 
 CHAPTER XXI. 
 
 WHO ENTITLED TO SUE FOR DIVORCE, 205 
 
 CHAPTER XXII. 
 
 JURISDICTION IN DIVORCE, , 206 
 
 CHAPTER XXIII. 
 
 EVIDENCE IN DIVORCE, 215 
 
CONTENTS. XI 
 
 CHAPTEK XXIV. 
 
 EEDINGS TO OBTAIN A DIVORCE, . 
 
 PACE 
 
 . 217 
 
 The suit, 
 
 . 217 
 
 The proper court, .... 
 
 . 220 
 
 The petition or libel, causes of complaint, . 
 
 . 221 
 
 Service of subpoena, .... 
 
 224 
 
 Testimony, how taken, .... 
 
 224 
 
 An issue, ...... 
 
 . 225 
 
 Proceedings where respondent is in prison. 
 
 . 226 
 
 Discontinuance of libel, .... 
 
 . 226 
 
 CHAPTER XXV. 
 
 EFFECT OP DIVORCE, . . 228 
 
 CHAPTER XXVI. 
 
 husband's LIABILITY FOR ALIMONY AND COSTS PENDENTE LITE, 230 
 
 CHAPTER XXVII. 
 
 APPEAL, ... 232 
 
 CHAPTER XXVIII. 
 
 DIVORCE PROM BED AND BOARD, 233 
 
 Causes of divorce from bed and board, ..... 233 
 Malicious abandonment of his family by the husband, or turning 
 
 his wife out of doors, 235 
 
 Cruel and barbarous treatment, and indignities to person of wife, 236 
 
 Adultery, ... 238 
 
 CHAPTER XXIX. 
 
 ALIMONY, 239 
 
 A YIEW OF THE LAW OF TEUSTS. 
 
 CHAPTER XXX. 
 
 THEIR ORIGIN AND NATURE, 243 
 
 CHAPTER XXXI. 
 
 TRUSTS ARE EITHER SIMPLE OR SPECIAL, 247 
 
XU CONTENTS. 
 
 CHAPTER XXXII. 
 
 PAGE 
 
 252 
 
 CHAPTER XXXIII. 
 
 ACTIVE AND PASSIVE TRUSTS, .... . . 283 
 
 CHAPTER XXXIV. 
 
 TRUSTS FOR MARRIED WOMEN, OR THOSE IN CONTEMPLATION OP 
 
 MARRIAGE, . 310 
 
 For married women, ... .... 310 
 
 In contemplation of marriage, . ..... 314 
 
 CHAPTER XXXV. 
 
 EFFECT OF A POWER OF APPOINTMENT, . . . 319 
 
 CHAPTER XXXVI. 
 
 POWERS OP CESTUI QUE TRUST, BEING MARRIED OR IN CONTEM- 
 PLATION OF JIARRIAGE, 332 
 
 CHAPTER XXXVII. 
 
 TRUST TO CONVEY IS EXECUTED, AND LEGAL TITLE PASSES AVITH- 
 
 OUX CONVETANCB, 335 
 
 Conveyance of legal estate by trustee, . . . . 336 
 
 CHAPTER XXXVIII. 
 
 ESTATE OF THE TRUSTEES GOVERNED BY THE NATURE OP THE 
 
 TRUST, 338 
 
 A trust may be determined by consent of all parties in interest, . 338 
 CHAPTER XXXIX. 
 
 LIMITATION OP PERSONAL ESTATE, 340 
 
 Bequest of personal estate for life, remainder to issue, . 340 
 
 Grift of personal property for life, remainder to executors, admin- 
 istrators, &o., ....... .341 
 
 Trust for life, with power of disposal by will, remainder to legal 
 
 representatives, .,...•.. 341 
 
CONTENTS. Xlii 
 
 APPEI«fDIX. 
 
 PAGE 
 
 ACTS OF ASSEMBLY— SUPPLEMENTAL, 345 
 
 Married women may sell and transfer certain stocks and loans, . 345 
 
 Married women and minors may draw checks, &o., . . . 345 
 
 Married women may be corporators in certain cases, . . . 346 
 
 Jlarried women may insure their husbands' lives, . . . 346 
 
 Married women, who are minors, may unite with the husband in 
 
 conveying his real estate, ....... 846 
 
 Acknowledgment of instrument of writing transferring wife's per- 
 sonal property, ........ 346 
 
 Certain marriages within the degrees of affinity legalized, and 
 
 children to have same rights as if born in lawful wedlock, . 847 
 
 Where real estate is held for the sole and separate use of married 
 women, courts may decree a sale, mortgaging, leasing, or con- 
 veyance upon ground-rent in certain cases, . . . 347 
 
 Under decree of court married women may make and take con- 
 veyances to square and adjust lines, &c., . . . 349 
 
 Where property of a married woman is secured to her, and she 
 
 has no trustee, court may appoint one upon her petition, . 349 
 
 A married woman bequeathed personal property for life, or years, 
 &c., may give security in the Orphans' Court, and bind her 
 separate estate as a, feme sole, upon receiving bequest, . 350 
 
 In partition, if a sum of money be awarded to wife, it shall not 
 
 be paid to husband without security, &c., .... 350 
 
 Where an intestate leaves a wife or husband, and no heirs or 
 known kindred, upon petition of surviving husband or wife, 
 the court may decree balance in administrator's hands to 
 surviving wife or husband, 352 
 
TABLE OF CASES 
 
 THE LAW OF MARRIED WOMEN. 
 
 PAGE 
 
 Abbott «. Mackiuley, ... 41 
 Accounts of Siter, . . . 102 
 Addams v. HefTernan, . . . 103 
 Alexander v. Miller, . . 3Y, 40 
 
 Allen V. Grabam, ... 55 
 
 V. Maclellau, . 229, 232 
 
 Allison V. Allison, . . 225, 226 
 Ammon's Appeal, ... 29 
 
 Anderson's Appeal, . 140, 142, 144 
 Andrews v. Andrews, . . . 232 
 Angier v. Angier, . 192, 193, 194 
 
 Anthony's Appeal, . . . 181 
 Appeal of Elliott's Executors, . 31 
 Shippen, . . . Ill 
 Atkinson v. Rittenhouse, . 115 
 
 Auble V. Mason, .... 86 
 Auman v. Auman, . . 112 
 
 Aurand v. Schaffer, ... 86 
 Ajetsky v. Goery, . . . 130 
 
 B. 
 
 Bachman v. Chrisman, . 80, 148 
 
 V. Killinger, . . 33, 88, 89 
 
 Baer's Estate, .... 48 
 
 Bair's Estate, .... 50 
 
 Baldy's Appeal, . . 158,162,163 
 
 Banes v. Banes, .... 230 
 
 Bank D. Fisher, . . . . 22Y 
 
 V. Macalester, . . . 227 
 
 V. Stauffer, . . .80, 106 
 
 V. Wager, . . . .227 
 
 Baringer v. Stiver, . . 86, 87, 91 
 
 Barncord v. Kuhn, ... 89 
 
 Barnes v. Hart, .... 132 
 
 Barr v. Greenwalt, ... 86 
 
 Barto's Appeal 54 
 
 Bash V. Sommer, .... 116 
 Baskin's Appeal, .... 162 
 Bates V. Seelay, .... 112 
 
 Baxter v. Smith, . 
 
 Bayler v. Commonwealth, . 
 
 Beals V. See, 
 
 Bear's Administrator v. Bear, 
 
 26. 
 
 61 
 40 
 43, 
 
 52, 79, 81, 83 
 Benedict v. Montgomery, . . 104 
 Benford v. Sanner, ... 39 
 Bennett «. Smith, ... 57 
 
 Bentley v. Griffin, ... 40 
 
 Berger v. Clark, ... 48, 49 
 
 Bergey's Appeal, . . 33, 65, 89 
 
 Berlin Beneficial Society v. March, 160 
 
 ~ ' ■ . 5, 15 
 
 . 107 
 
 . 147 
 
 194, 207, 212 
 
 . 127 
 
 . 61 
 
 29, 30, 31, 86 
 
 80 
 
 65,76, 77 
 
 80 
 
 . 151, 153 
 
 61, 65 
 
 . Ill, 137 
 
 . 242 
 
 158 
 
 32, 93 
 
 193, 229 
 
 . 86 
 
 143, 150 
 
 152 
 
 Bicking's Appeal, 
 Bigler v. Cloud, . 
 Bishop's Appeal, 
 Bishop V. Bishop, 
 Black V. Fricker, , 
 
 V. Galway, . 
 
 V. Nease, 
 Blanche v. Bradford 
 Bond V. Bunting, . 
 Boose's Appeal, . 
 Borland v. Nichols, 
 Bortz V. Bortz, 
 Bouslaugh V. Bouslaugh, 
 Bouslough V. Bouslough, 
 Bowermaster v. Bowermaster, 
 Bowser v. Bowser, 
 Boyd's Appeal, 
 Bradford's Appeal, 
 Bradfords v. Kents, 139, 142 
 
 Bratton v. Mitchell, 
 Breinig v. Breinig, 221, 
 
 V. Meitzler, 
 Brentlinger v. Brentlinger, 
 Brice's Estate, 
 Brinckle v. Brinckle, . 
 Brom V. Brom, 
 Bronson v. Bronson, 
 Broom v. Fox, 
 Brown v. Pendleton, 
 
 V 
 
 ,115 
 
 222, 238, 240 
 
 44, 200 
 
 . 232 
 
 5 
 
 . 224 
 
 . 232 
 
 124, 192, 215 
 
 . 227 
 
 86, 93 
 
XVI 
 
 TABLE OP CASES. 
 
 56, 57, 59, 
 
 91, 93, 
 
 Brown's Appeal, 
 
 Brunner's Appeal, 
 
 Buchanan v. Buchanan 
 
 Bucher v. Ream, . 
 
 Buffaloe v. Whitedeer, 
 
 Burk V. Gleason, . 
 
 Burke v. Winkle, 
 
 Burrell Township v. Guardians, . 
 
 Burson's Appeal, 
 
 Butler D. Butler, . . 193, 196 
 
 Butterfield's Appeal, . 
 
 C. 
 
 PAGE 
 
 147 
 
 60 
 
 58 
 
 95 
 
 170 
 
 160 
 
 128 
 
 170 
 
 80 
 
 197 
 
 63 
 
 Caldwell f . Walters, . 
 
 56, 57, 63 
 
 Campbell v. Kent, 
 
 42 
 
 Cany v. Patton, 35, 38, 39 
 
 , 43, 44, 45 
 
 Carl V. Wonder, . 
 
 . 43 
 
 Carnael v. Buckle, 
 
 . 25 
 
 Cattison v. Oattison, . 193, 198, 224 
 
 Cauffman v. Cauffmau, 
 
 . 142 
 
 Cawley v. Wilson, 
 
 121, 122 
 
 Chambers v. Dickson, . 
 
 5 
 
 V. Spencer, . 
 
 . 124 
 
 Cheney v. Arnold, 
 
 2 
 
 Clarke's Appeal, . 
 
 106, 108 
 
 Clark V. Clark, . 184, 233, 242 
 
 V. Seiver, . 
 
 68 
 
 V. Thompson, 
 
 . 67 
 
 Cleaver v. Sheetz, . 44, 127, 129 
 
 Coates V. Gerlach, 26, 27 
 
 , 29, 30, 31 
 
 Cochran v. Garretson, . 
 
 . 129 
 
 V. O'Hern, 
 
 82, 107 
 
 ColTin V. Reed, . 206, 210, 211, 212 
 
 Commonwealth v. Hill, 
 
 . 180 
 
 V. Jones, 
 
 . 182 
 
 V. Keeper, 
 
 . 179 
 
 ■u. Murtagh, 
 
 . 1,8 
 
 V. Nathans, 
 
 173, 180 
 
 
 181, 183 
 
 V. Shafer, 
 
 . 179 
 
 V. Smith, 
 
 . 204 
 
 V. Stump, 
 
 1, 5, 8 
 
 Complier v. Compiler, . 
 
 158, 164 
 
 Conrad v. Shomo, 
 
 86, 94 
 
 Couch V. Sutton, . 
 
 . 68 
 
 Covert V. Hertzog, 
 
 5 
 
 Cowden v. Oyster, 
 
 . 101 
 
 Cowtou V. Wickersham, 
 
 61, 64 
 
 Cox V. Rogers, 
 
 . 143 
 
 Crause's Estate, . 
 
 . 161 
 
 Cumming's Appeal, 
 
 79, 81 
 
 Cummings v. Miller. 
 
 48 
 
 Cunningham v. Irwin, . 
 
 24, 44 
 
 Cunninghams v. Cunninghai 
 
 ns, . 4, 9 
 
 Curry v. Bott, 
 
 86, 110 
 
 D. 
 
 Dalrymple v. Dalrymple, 
 
 
 PAGE 
 
 Dankel v. Hunter, 
 
 . 69 
 
 Davey v. Turner, . 
 
 71 
 
 Davidson v. M'Candlish, 
 
 48, 49 
 
 Davis's Appeal, . 
 
 . 161 
 
 Davis V. Davis, 
 
 . 101 
 
 V. Zimmerman, . 
 
 79, 90 
 
 De Amarelli's Estate, . 
 
 . 5,6 
 
 Dearie v. Martin, . 
 
 55, 56 
 
 Dech's Estate, 
 
 . 161 
 
 Deginther's Appeal, 
 
 . 346 
 
 Dellinger's Appeal, 
 
 99, 121 
 
 Demott V. Commonwealth, 
 
 178, 179, 
 
 
 182 
 
 Derringer v. Derringer, 
 
 . 226 
 
 Detwilers Appeal, 
 
 . 164 
 
 Dickinson v. Dickinson, 
 
 . 136 
 
 Diehl V. Emig, 
 
 122, 123 
 
 Dillinger's Appeal, 
 
 36, 159 
 
 Directors v. Mercer, 
 
 179, 182 
 
 Doanw. Doan, . . 193,198,199 
 
 Donaldson v. llagiunes. 
 
 . 115 
 
 Dorrance v. Scott, 
 
 56, 57, 63 
 
 Dorsey v. Dorsey, 206, 209, 210, 211, 
 
 
 212 
 
 Dougherty v. Snyder, . 
 
 27, 117 
 
 Dubs V. Dubs, 
 
 138 
 
 Duffy V. Ins. Co., . 
 
 27,33, 34 
 
 Dunham v. Wright, 
 
 66 
 
 Durand v. Durand, 
 
 1 
 
 E. 
 
 Earl V. Champion, 
 
 
 86 
 
 EbersoU v. King, . 
 
 
 116 
 
 Eccler v. Bocler, 
 
 
 224 
 
 Edmond's Appeal, 
 
 
 216 
 
 Edwards v. Edwards, . 
 
 196, 200, 
 
 221 
 
 Ege V. Medlar, 
 
 
 1U7 
 
 Elliot V. Gurr, 
 
 
 19 
 
 Enue V. Clark, 
 
 43 
 
 119 
 
 Eschbach v. Eschbach, 
 
 . 196, 
 
 197 
 
 Etherington v. Parrot, . 
 
 
 39 
 
 Evans v. Commonwealth, 
 
 
 1 3 
 
 V. Evans, . 
 
 . 141, 
 
 151 
 
 V. Mylert, . 
 
 
 61 
 
 Ewing t). Ewing, . 
 
 
 223 
 
 Ex parte Bailey, . 
 
 . 178, 
 
 179 
 
 P. 
 
 Fairchild !'. Castelleux, 
 
 . 114 
 
 Fenton v. Reed, . 
 
 . 15 
 
 Finley v. Finley, . 
 
 226 
 
 Finley's Appeal, . 
 
 55, 56 
 
 Fisher v. Filbert, . 
 
 . 27 
 
 Flick V. Devries, . 
 
 86, 88 
 
 Flory V. Becker, . 
 
 184, 228 
 
 Fogelsonger v. Somerville, 
 
 . 104 
 
 Ford D. Walker, . 
 
 40 
 
TABLE OF CASES. 
 
 XVU 
 
 
 PAGE 
 
 Forney v. Hallacher, 
 
 8 
 
 Forrester v. Preston, 
 
 . 65 
 
 Fowler v. McClurg, 
 
 71, 74 
 
 Franklin v. Rush, 
 
 . 50 
 
 Fransen's Will, 
 
 . 132, 133 
 
 Freeman v. Stokes, 
 
 . 90 
 
 Freno v. Freno, . 
 
 8 
 
 Fry and Wife v. Ray, 
 
 . 91 
 
 G. 
 
 Gackenbach v. Brouse, 
 Galbraith v. Green, 
 Gamber v. Gamber, 
 Gamble's Estate, . 
 Gardner v. McLallen, 
 Garforth v. Bradley, 
 Garrat v. Garrat, . 
 Gault V. Saffin, . 
 Gibson v. Todd, . 
 Gicker's Administrators v 
 
 Gillespie v. Miller, 
 Glass V. Warwick, 
 Glidden v. Strupler, 
 Glyde v. Keister, 43, 51, 
 
 Gochenaur's Estate, 
 Goff V. Nuttall, . 
 Goodyear v. Rumbaugh, 
 Gordon v. Gordon, 
 Gourley v. Kinley, 
 Grabill v. Moyer, 
 Graham v. Long, 
 Grasser v. Eckert, 
 Graves v. Cole, 
 Griflith V. Smith, 
 Grove V. Hodges, 
 Grove's Appeal, . 193 
 Grubb's Appeal, . 
 Guardians v. Nathans, 1 
 
 V. Picard, . 
 
 V. Roberts, . 
 Gygcr's Estate, . 
 
 
 25 
 
 
 151 
 
 86 
 
 ,89 
 
 
 109 
 
 
 123 
 
 
 25 
 
 . 221, 
 
 223 
 
 
 86 
 
 32, 100, 
 
 116 
 
 . Martin, 
 
 101, 
 
 
 105 
 
 
 86 
 
 
 61 
 
 . 47, 56 
 
 , 66 
 
 52, 56, 57 
 
 66, 
 
 67 
 
 , 75 
 
 
 99 
 
 30 
 
 , 92 
 
 . 81, 
 
 116 
 
 196, 200, 
 
 201 
 
 147, 150, 
 
 151 
 
 . 33, 6E 
 
 , 89 
 
 50, 66, 71 
 
 ,72 
 
 
 47 
 
 .' 23*0, 
 
 231 
 
 . 23, 
 
 187 
 
 
 65 
 
 , 230, 235, 
 
 242 
 
 
 169 
 
 , 5,'6, 173, 
 
 180 
 
 
 181 
 
 
 181 
 
 
 166 
 
 H. 
 
 Haifey v. Carey, . 
 Hallowell v. Horter, 
 Hamilton v. Hamilton, 
 Haines v. Ellis, 
 Hammit v. Bull, . 
 Hancock's Appeal, 
 Hanna v. Phillips, 
 Hantz V. Sealy, 
 Harbert v. Miller, 
 Harris v. Harris, . 
 
 V. Insurance Co 
 Harrison v. Burwell, 
 V. Harrison, 
 
 61, 65, 75 
 
 91, 95 
 
 4, 6, 14, 103 
 
 66, &l, 75, 81 
 
 64 
 
 221, 222 
 
 5 
 
 1 
 
 374, 383 
 
 200, 230 
 
 . 110 
 
 19 
 
 23, 187, 188 
 
 Hartman v. Dondel, 
 Hartmann v. Ogborn, . 
 Harvey v. Harvey, 
 Hause v. Gilger, . 
 Haydon v. Gould, 
 Heacock v. Fly, . 
 Headley v. Etting, 
 Heeter v. Glasgow, 
 Heffner v. Heffner, 
 Heise v. Heise, 
 Heiss V. Davidson, 
 Helen v. Bryson, . 
 Helfrich v. Commonwealth, . 
 Hentz 1). Clawson, 
 Heron v. Hoffner, 
 Herr's Appeal, 
 Hertzog v. Hertzog, 
 Hess V. Beates, 
 Hettrick v. Hettrick, 
 Heugh V. Jones, . 
 Hildebraud's Appeal, 
 Hileman v. Bouslaugh, 
 Hill V. Hill, . 
 V. Sewall, 
 Hilt V. Walton, . 
 Hind's Estate, 
 Hinnershits v. 
 
 PAGE 
 
 102 
 
 63 
 
 27 
 
 86 
 
 19 
 
 56, 59, 66 
 
 51 
 
 72 
 
 22, 187 
 
 242 
 
 56 
 
 77, 78 
 
 189 
 
 127 
 
 142 
 
 28, 30 
 
 47, 114 
 
 . 165 
 
 . 160, 370 
 
 . 51, 52, 55 
 
 . 159 
 
 . 64 
 
 158, 160, 191 
 
 . ■ . .38 
 
 . 164 
 
 33, 100 
 
 Bernhard's Ex'rs, 139,. 
 
 141, 152 
 
 33 
 
 148 
 
 Hinney v. Phillips, 
 Hise V. Geigar, 
 Hitner's Appeal, . 
 Hitner v. Ege, 
 Hoar V. Axe, 
 Hoffman v. Hoffman, 
 
 V. Toner, 
 HoUister v. Hollister, 
 Holt V. Brien, 
 
 V. Clarencieux, 
 Hoover v. Samaritan Society, 
 Houck V. Ritter, 
 Housel V. Housel, 
 Hufman's Appeal, 
 Hultz V. Gibbs, 
 Hunter's Appeal, 
 Hurley's Estate, . 
 Hutchinson v. Preston, 
 Button V. Duey, . 
 Hyde v. Hesser, 
 
 I. 
 
 Imhoff V. Brown, 
 IngersoU v. Ingersoll, . 
 Ingham v. Crary 
 In re Gray's Estate, 
 
 Taylor, 
 Insurance Co. v. Foster, 
 
 35, 120 
 
 . 106 
 
 86, 88, 89 
 
 202, 203, 222, 224 
 
 86, 91 
 
 . 192, 207, 237 
 
 40 
 
 21 
 
 33 
 
 66 
 
 80 
 
 161 
 
 44 
 
 97 
 
 163 
 
 55 
 
 26, 27, 35, 159 
 
 . 127 
 
 79 
 
 1, 5, 6. 
 
 J. 
 
 Jackson v. Clow, . 
 
 57 
 . 193 
 . 108 
 . 99 
 11, 17 
 
 82 
 
 16 
 
XVIU 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Jackson v. Winne, . . . 1 
 
 Jacobs V. Peatherstone, . 41, 128 
 
 James v. Everley, ... 66 
 
 V. Lyon, .... 66 
 
 Jamison v. Jamison, . . 61, 11 
 
 Jermon v. Lyon, ... 58 
 
 Jewell V. Jewell, .... 2 
 
 Johnson v. Fullerton, . . . 110 
 
 Johnston v. Johnston, . . 34, 65, 99 
 
 Jones's Appeal, .... 82 
 
 Jones V. Covert, .... 86 
 
 V. Jones, . . . 200, 216 
 
 u. Maflfer, .... 75 
 
 Jourdan v. Jourdan, ... 72 
 
 Juniata B. and L. Ass'n v. Mixell 
 
 and wife, . . . . 61, 62 
 
 K. 
 
 Keen v. City, 
 
 V. Coleman, 
 
 V. Hartman, 
 Keeney v. Good, . 
 Keeper v. Helfricker, . 
 Keichline v. Keiohline, 
 Keil V. Wolf, 
 Keller v. Commonwealth 
 Kelly's Appeal, . 
 Kenley v. Kenley, 
 Kenyon v. Ashbridge, . 
 Kepler v. Davis, . 
 Kilborn v. Field, . 
 Kirk V. Clark, 
 
 V. Dean, 
 Kirkland v. Hepselgefser, 
 Kirkpatrick's Estate, . 
 Kleinert v. Bhlers, 
 Klingenberger v. Klingenberger, 
 Kline V. Kline, 
 Kline's Appeal, . 
 Knoi V. Flack, 
 Kurtz V. Sayler, . . . 132, 133 
 Kurtz's Appeal, 27, 33, 86, 100, 117, 148 
 
 L. 
 
 Lady Arundel v. Phippg, . . 29 
 Lancaster v. Dolan, ... 82 
 Larkin v. McMuUin, ... 28 
 Larrison's Appeal, . . . 163 
 La Rue v. Gilkyson, ... 40 
 Leeds v. Vail, .... 41 
 Lefever );. Witmer, . . 80,110 
 Lehr v. Beaver, ... 32, 35 
 
 Leinaweaver v. Stoever, . 151, 153 
 Lehman v. Dorley, . . 161 
 
 Leland's Appeal, . . 66, 67, 68 
 
 Lewis V. Brewster, . . . 110 
 Light V. Light, 142, 214, 220, 221, 222, 
 
 236 
 
 . 65 
 
 47, 56, 57, 58 
 
 . 46 
 
 86, 87, 89, 116 
 
 . 56 
 
 . 87 
 
 . 27, 28, 88 
 
 178, 179, 182 
 
 30 
 
 22, 187 
 
 . 5, 6 
 
 86, 93, 95, 96 
 
 . 215, 216 
 
 69 
 
 71 
 
 69 
 
 163 
 
 228 
 
 237 
 
 230 
 
 86 
 
 63 
 
 
 
 PAGE 
 
 Lippincott v. Hopkins, 
 
 
 50, 52, 53 
 
 V. Leeds, 
 
 
 52, 53 
 
 Lippincott'a Estate, 
 
 
 . 150 
 
 Little's Estate, 
 
 
 . 117 
 
 Lloyd V. Hibbs, . 
 
 
 55, 56 
 
 V. Taylor, . 
 
 
 . 71 
 
 Londonderry v. Chester, 
 
 
 1 
 
 Louden v. Blythe, 
 
 
 72, 73, 75 
 
 Lower Augustas. Selinsgrove, 182, 183 
 
 Lyman's Administrator v. 
 
 Byam, 161, 
 
 
 
 163, 164 
 
 Lyon V, Roberts, . 
 
 
 . 88 
 
 V. Swayne, . 
 
 
 . 53 
 
 Lyon's Appeal, 
 
 
 . 97 
 
 Lytle's Appeal, . 
 
 
 . 61 
 
 M. 
 M'Aboy V. Johns, 
 
 
 . 68 
 
 M'Bride's Appeal, 
 
 112, 122, 123 
 
 M'Call'a Appeal, . 
 
 
 . 147 
 
 M'Clure v. Douthitt, . 
 
 
 . 46 
 
 McCIurg's Appeal, 193, 
 
 238, 239, 240 
 
 McCollough V. McOollough, 
 
 227 
 
 McConnell v. Carey, 
 
 
 . 70 
 
 McCuUough V. Wilson, 
 
 
 61, 62 
 
 McCurdy v. Canning, . 
 
 
 . 109 
 
 McDermott's Appeal, . 
 
 207, 209, 235 
 
 McElfatrick v. Hicks, . 
 
 
 . 108 
 
 McGlinsey's Appeal, 
 
 65, 105, 124 
 
 Mclntire v. Ward, 
 
 
 . 74 
 
 M'Karracher v. M'Karracher 
 
 . 239 
 
 M'Kennan v. Phillips, . 
 
 27 
 
 , 28, 30, 35 
 
 M' Kinney v. Hamilton, 
 
 
 . 104 
 
 M'Nickle v. Henry, 
 
 149, 151, 152 
 
 Mackinley v. McGregor, 
 
 
 37, 38, 39 
 
 Magaw V. Stevenson, . 
 
 
 61 
 
 Magill's Appeal, . 
 
 
 . 226 
 
 Mahon v. Gormley, 
 
 
 47, 52, 81 
 
 Maier's Estate, 
 
 
 . 162 
 
 Malley v. Dempsey, 
 
 
 . 50 
 
 Manderbach v. Mock, . 
 
 
 89, 91 
 
 Mann's Appeal, . 
 
 
 . 33 
 
 Mansley v. Smith, 
 
 
 . 47 
 
 Manufacturing Co. v. Nee 
 
 , 
 
 29, 30 
 
 Marshall v. Marshall, . 
 
 
 . 26 
 
 Martha Mann's Appeal, 
 
 
 . 80 
 
 Martin v. Jackson, 
 
 
 . 112 
 
 Matchin v. Matchin, 
 
 1? 
 
 6, 190, 216 
 
 May V. May, . 35, 118, 193, 197, 198 
 
 Medlar v. Aulenbach, . . . 148 
 Melizet v. Melizet, . . 230, 241 
 Melizet's Appeal, . 139, 141, 144 
 
 Mellinger's Administrator k. Baus- 
 
 man's Trustee, . . 35, 65, 98, 100 
 Metcalfe v. Shaw, ... 40 
 
 Mifflin Township v. Elizabeth, . 170 
 Miles V. Miles, . . . 200, 201 
 Miller v. Harbert, ... 67 
 
 V. Leidig, . . . .148 
 
TABLE OF CASES. 
 
 XIX 
 
 Miller v. Long, 
 
 PAGE 
 
 . 41 
 
 V. Miller, . 
 
 11, 111, 118, 232 
 
 V. Wentworth, 
 
 . 71, H 
 
 Miltenberger v. Croyle, 
 
 . 69 
 
 Miltimore v. Miltimore, 
 
 . 228 
 
 Miner v. Graham, 
 
 . 64, 67, 75 
 
 Mittimore v. Mittimore 
 
 . 155, 184 
 
 Mohuey v. Evans, 
 
 51 
 
 Montague v. Benedict, 
 
 . 37, 39, 45 
 
 V. Montague, 
 
 . . 4,8 
 
 Moore v. Connell, 
 
 53, 66, 67, 75 
 
 Moore's Estate, 
 
 . 31 
 
 More V. Freeman, 
 
 . 34 
 
 Morris v. Garrison, 
 
 . 115 
 
 V. Zeigler, 
 
 29, 32 
 
 Morr's Appeal, 
 
 . 56 
 
 Moyer's Appeal, . 
 
 . 99 
 
 Mullen V. M'Eelvy, 
 
 . 132 
 
 V. Wilson, 
 
 . 31 
 
 Murphy v. Bright, 
 
 51, 53 
 
 V. Murphy, 
 
 . 227 
 
 Murray v. Keyes, . 
 
 . 48, 49, 50 
 
 Musselman's Appeal, 
 
 . 150 
 
 Musser v. Gardner, 
 
 89, 94, 95, 123 
 
 N. 
 Nagle V. Nagle, 
 
 . 214 
 
 Nathans v. Nathans, 
 
 . 192, 237 
 
 Neely v. M'Oormick, 
 
 . 164 
 
 Neffs Appeal, 
 
 . 158, 161 
 
 Neglee v. IngersoU, 
 
 . 65 
 
 Nerin's Appeal, . 
 
 . 158 
 
 Newhouse v. Commonw 
 
 ealth, . 183 
 
 Nippe's Appeal, . 
 
 . 30 
 
 Nissley v. Heisey, 
 
 . 103 
 
 Notte's Appeal, . 
 
 . 159 
 
 Nutz V. Reutter, . 
 
 114, 118, 119 
 
 0. 
 
 Odiorne's Appeal, . . 159, 160 
 
 Omohundro's Estate, . . . 5, 7 
 Opdyke's Appeal, . . . 169 
 
 Ormsby v. Ormsby, . . 230, 231 
 Overseers of Poor of Williamsport 
 V. Overseers of Poor of Elfred 
 Township, . . . .170 
 
 Overseers v. Smith, . 180, 181, 182 
 
 Paige's Estate, 
 
 82, 83 
 
 Parke v. Kleeber, 
 
 48, 49, 51 
 
 Parker's Appeal, . 
 
 18, 202 
 
 Parvin v. Capewell, 
 
 . 88 
 
 Patterson v. Robinson, 
 
 59,61 
 
 Paul's Executors v. Paul, 
 
 139, 152 
 
 Peaceable v. Keep, 
 
 . 42 
 
 PAGE 
 
 Peek V. Ward, ... 66, 80 
 Peiffer v. Lytle, ... 33, 34 
 Penna. Insurance Oo. v. Poster, 82, 83 
 Pepper's Estate, .... 159 
 Perry v. Boileau, . . . 115, 118 
 Peterman's Appeal, . . . 162 
 Petrie v. Clarke, . . . .102 
 Pettit «. Fretz, . . . 56,66,81 
 Phillips V. Reeder, ... 86 
 Physick's Estate, . . 1, 5, 14 
 
 Pierie v. Pierie, .... 222 
 Piatt's Appeal, . . . 160, 211 
 Pollock V. Hall, . . . .227 
 Power V. Power, . . . 148, 150 
 Pringle v. Gaw, . 137, 147, 149, 150 
 Proctor V. Aitken, ... 48 
 
 Pusey V. Harper, .... 86 
 
 Queen v. Willis, 
 
 Q. 
 
 R. 
 
 Railroad v. Burson, 
 Ramborger v. Ingraham, 
 Rangier v. Hammel, 
 Raybold v. Raybold, 
 Reading v. Cumree, 
 Reakert v. Sanford, 
 Bealf V. Realf, 
 Reed's Estate, 
 Reel V. Elder, 
 Reeves v. Reeves, 
 Reid V. Grey, 
 Reigel v. WoUey, 
 Respublica v. Gelvix, 
 V. Roberts 
 Rhoads' Estate, . 
 Rhoads v. Gordon, 
 Rice V, Rice, 
 Richard v. Brehm, 
 Richards v. McClelland, 
 
 V. Richards 
 Richwine v. Heim, 
 Biddlesberger v. Mentzer, 
 Rigoney v. Neiman, 
 Rishell V. Rishell, 
 Ristine v. Ristine, 
 Bitter v. Ritter, . 
 Robbarts v. Robbarts, 
 Robinson v. Wallace, 
 Robinson v. Zollinger, 
 Rodebaugh v. Sanks, 
 Rogers v. Fales, . . 27. 
 
 V. Smith, . 
 Bosebury v. Stirling, 
 Rose V. Clark, 
 Rosa V. Lynch, 
 
 3,4 
 
 66 
 
 56, 59 
 
 50, 117, 118 
 
 95 
 
 171 
 
 41, 42 
 
 223 
 
 51 
 
 211 
 
 224 
 
 28 
 
 93 
 
 120 
 
 190 
 
 69 
 
 86 
 
 111 
 
 1,2,5,8 
 
 66, 67 
 
 196, 197 
 
 . 102 
 
 151, 153 
 
 . 50 
 
 . 159 
 
 191, 195 
 
 27, 116, 117 
 
 . 239 
 
 91, 95 
 
 . 167 
 
 1 
 
 28, 30, 100 
 
 . 82 
 
 67, 69, 75 
 
 1, 5, 9, 15 
 
 63, 97 
 
XX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Rowley w. M'Hugh, . . 121,123 
 
 Ruch V. Hildebrand, . . .136 
 
 Rumfelt V. Clemens, ... 69 
 
 Rumpffw. Vichestein, . . . 18? 
 
 Runyan's Appeal, . . . 158 
 Rush V. Lewis, .... 249 
 
 V. Tought, . . 86, 93, 94, 95 
 
 139, 
 
 S. 
 
 Sawtelle's Appeal, 
 
 Schlosser's Appeal, 
 
 SchoU's Appeal, . 
 
 SchrifiFer v. Saum, 
 
 Scott V. Crosdale, 
 
 Seeds v. Kahler, . 
 
 Seibert v. M'Heury, 
 
 Seider v. Selder, 
 
 Senser v. Bower, . 
 
 Shaak's Estate, 
 
 Shaffer v. Shaffer, 
 
 Shallcross v. Smith, 
 
 Shallenberger v. Ashworth, 
 
 Shaller v. Brand, . 
 
 Shank v. Brown, . 
 
 Shaupe v. Shaupe, 
 
 Shay V. Shay, 
 
 Sheidle v. Weishlee, 50, 
 
 Sheitz V. Cleaver, 
 
 Shimer v. Jones, . 
 
 Shinn v. Holmes, 
 
 Shoop's Appeal, . 
 
 Shumate v. M'Garity, 
 
 Silven's Executors v. Porter, 93 
 
 Singer Manufacturing Co. t. Rook 
 
 56, 59, 90, 390 
 
 60 
 
 . 149 
 
 55, 56 
 
 . 154 
 
 93 
 
 . 114, 118 
 
 . 150, 151 
 
 8 
 
 . 159 
 
 150, 152 
 
 56 
 
 . 101 
 
 . 1i 
 
 . 85 
 
 . 148, 149 
 
 . 226 
 
 61,64, 116, 118 
 
 50, 129 
 
 7V, Y8 
 
 66, 67, 75, 76 
 
 . 201, 231 
 
 . 160, 161 
 
 94 
 
 and wife, . 
 
 
 . 72 
 
 Sipes V. Mann, 
 
 . 158 
 
 Spier's Appeal, 
 
 . 96 
 
 Smith V. Smith, . 
 
 117, 193, 229, 237 
 
 Soult's Appeal, . 
 
 158, 161, 162, 164 
 
 South V. South, . 
 
 . 231 
 
 Sowers v. Hagner, 
 
 
 . 65 
 
 V. Sowers, 
 
 
 . 235, 236 
 
 Speakman's Appeal, 
 
 
 79, 91, 95, 164 
 
 Spencer's Appeal, 
 
 
 . 159 
 
 Spencer v. Tisue, 
 
 
 38, 43 
 
 Spier's Appeal, . 
 
 
 . 159 
 
 Stahl V. Crouse, . 
 
 
 . 82 
 
 Stall V. Meek, 
 
 
 . 38 
 
 Star V. Peck, 
 
 
 ■ ■ ,2 
 
 Starrett v. Wynn, 
 
 
 96 
 
 Steele v. Thompson, 
 
 
 38, 39 
 
 Steel V. Steel, 
 
 . 223 
 
 Sterling v. Commonwe 
 
 alth, 179, 180, 
 
 Steinman v. Ewing, 
 Steitman v. Huber, 
 Stevenson v. Stevenson, 
 Still V. Ruby, 
 
 181 
 
 56 
 
 80 
 
 124 
 
 166 
 
 Stites V. Jeffries, . 
 Stickney v. Borman, 
 Stoebler v. Knerr, 
 Stoops V. Blackford, 
 Swayne v. Lyon, . 
 
 PAGE 
 
 50 
 
 . 26, 29, 31 
 
 . 113 
 
 66, 67, 75, 78 
 
 49, 58 
 
 T. 
 
 Tate V. Austin, 
 
 Taylor v. Birmingham, 
 
 Terry's Appeal, 
 
 The King v. The Inhabitants 
 Twyning, . 
 
 Thomas v. Folwell, 
 
 V. McCready, . 
 
 V. Simpson, 148, 149, 
 
 Thompson v. Dougherty, 
 V. Loorein, 
 V. Morrow, . 
 V. Thompson, 
 
 Thorndale v. Morrison, 
 
 Tibbin's Estate, . 
 
 Tibbs V. Brown, . 
 
 Tiernan's Estate, . 
 
 TifSn V. Tiffin, 
 
 Todd's Appeal, 
 
 Toomey's Estate, 
 
 Topley V. Topley, 
 
 Towers v. Hagner, 
 
 Townsend v. Maynard, 
 
 Tozer v. Tozer, 
 
 Tripner v. Abrahams, . 
 
 Trimble v. Reis, . 
 
 Trimmer v. Heagy, 
 
 Twitchell v. McMurtrie, 
 
 Ulp V. Campbell, . 
 Unangst v. 'Filler, 
 
 V. 
 
 Valentine v. Ford, 
 Vanartsdalen v. Vanartsdalen, 
 Vance v. Nogle, 
 Vandevort's Appeal, 
 Vanleer v. Vanleer, 
 Van Wert v. Benedict, 
 Vincent's Appeal, 
 
 W. 
 
 Wagner v. Ellis, . 
 Waldrou v. Waldron, . 
 Walker v. Coover, 
 V. Reamy, 
 
 
 33 
 
 143, 
 
 150 
 
 161, 
 
 370 
 
 of 
 
 
 
 8 
 
 
 82 
 
 
 183 
 
 150, 
 
 151 
 
 
 31 
 
 
 67 
 
 
 71 
 
 30, 
 
 238 
 
 5, 8, 66 
 
 
 162 
 
 
 118 
 
 
 138 
 
 
 237 
 
 
 82 
 
 142, 
 
 143 
 
 29, 86 
 
 33, 
 
 117 
 
 
 29 
 
 
 159 
 
 86, 88 
 
 
 104 
 
 
 66 
 
 , 
 
 376 
 
 66 
 
 57 
 
 128 
 . 167 
 27, 65 
 
 160 
 . 195 
 
 132 
 5 
 
 222, 
 
 132 
 230 
 . ' 64 
 82, 86 
 
TABLE OF CASES. 
 
 XXI 
 
 Walker v. Simpson, 24, 38, 
 Wallace v. Coston, 
 
 V. Gibbs, 
 Walters' Appeal, 18, 19, 20, 
 
 Watson V. Bailey, 
 V. Mercer, 
 Weaver's Appeal, 
 Webster v. McGinnis, . 
 Weeks v. Haas, 
 Weiler v. Greiner, 
 Welch V. Kline, . 
 West V. West, 
 Wike V. Aurandt, 
 Wilkinson v. Payne, 
 Williams' Appeal, 
 Williams v. Baker, 
 
 V. Coward, ST, 
 
 V. Davis, 
 Willing V. Peters, 
 Wilman v, Anderson, 
 
 PAGE 
 
 
 PAGK 
 
 8, 43, 44, 45 
 
 Winch V. James, . 
 
 29, 64 
 
 . 82 
 
 Winch's Appeal, . 
 
 97 
 
 . 56 
 
 Winter v. Walker, 
 
 86, 87 
 
 21, 22,202, 
 
 V. Winter, 
 
 . 124, 21,j 
 
 220 
 
 Wise V. Rhoades, . 
 
 112 
 
 n, 73 
 
 Withers v. Baird, 
 
 72, 75 
 
 . n, 12, 13 
 
 Witmer's Estate, . 
 
 163 
 
 . 161 
 
 Wood V. Wood, . 
 
 215 
 
 . 31 
 
 Wolbach and wife v. 
 
 Lehigh B. 
 
 . 104 
 
 and L. Association, 
 
 47, 62 
 
 . 128 
 
 Woodward v. Wilson, 
 
 55 
 
 11, 93 
 
 Woolston's Appeal, 
 
 . 31 
 
 ee, 131 
 
 Worrell's Case, . 
 
 . 180, 181 
 
 101 
 
 Wright V. Brown, 
 
 . 81, 82, 83 
 
 . 16 
 
 
 
 . 27 
 
 
 
 . 72 
 
 Y. 
 
 
 38, 47, 114 
 
 
 
 30, 31 
 
 Yardley's Estate, 
 
 5 
 
 66 
 
 Yeager v. Weaver, 
 
 . 121, 122 
 
 . 93, 94, 97 
 
 Young's Estate, . 
 
 33, 89 
 
TABLE OF CASES 
 
 T 
 
 A VIEW OF THE LAW OF TRUSTS. 
 
 PAGE 
 . 340 
 
 . 319, 322 
 
 . 301 
 
 298, 305, 315 
 
 . 247, 326 
 252, 254, 255 
 
 A. 
 
 Amelia Smith's Appeal, 
 Anderson v. Dawson, 
 Ash's Appeal, 
 Ashurst's Appeal, 
 Ashurst V. Given, 
 Auman v. Auman, 
 
 B. 
 
 Bacon's Appeal, 249, 252, 294, 335, 336, 
 
 340 
 Barnett's Appeal, 247, 248, 249, 251, 283, 
 288, 292, 305, 315, 329, 335 
 Bonnett v. King, . . . .252 
 Briggs V. Davis, .... 283 
 Brown v. "Williamson, . . . 247 
 Bush's Appeal, 285, 287, 288, 310, 315 
 
 C. 
 
 Chaffees v. Risk, . 
 
 
 
 247 
 
 Chew's Appeal, . 
 
 253, 
 
 255, 
 
 259 
 
 Claris; v. Baker, . 
 
 
 
 341 
 
 Cochran v. O'Hern, 
 
 , 
 
 249, 
 
 332 
 
 Covert V. Robinson, 
 
 
 
 257 
 
 Cridland's Estate, 
 
 
 
 303 
 
 Criswell's Appeal, 
 
 255, 
 
 256 
 
 260 
 
 Culbertson's Appeal, 
 
 
 336, 
 
 339 
 
 D. 
 
 Deibert's Appeal, . . 304, 305 
 
 Delbert's Appeal, . . 304, 305 
 
 Dodson V. B"all, 247, 248, 251, 254, 268, 
 269, 272, 273, 288, 305, 306, 307, 319, 
 320, 321 
 Dorrance v. Scott, . . 249, 332 
 Dubs V. Dubs, . . . .308 
 
 E. 
 
 Earp's Appeal, 246, 249, 251, 281, 296, 
 
 297, 299, 316 
 
 Eichelberger v. Barnitz, . . 341 
 
 PAGE 
 
 Emma Myer's Appeal, . . . 340 
 Eyrick v. Hetrick, . . 247, 327 
 
 F. 
 
 Fisher i;. Taylor, . . 247,251,326 
 Flintham's Appeal, . . .319 
 Freyvogle J!. Hughes, . . 312,316 
 
 G. 
 
 George v. Morgan, . 252, 259, 260 
 
 Girard Co. u. Chambers, 290, 306, 319, 
 
 322, 324, 325, 326, 343 
 
 Guthrie's Appeal, 252, 253, 255, 258, 
 
 259, 272, 273, 274, 278, 322, 325 
 
 H. 
 
 Hammersley v. Smith, . 
 
 . 
 
 308 
 
 316 
 
 Hanson v. Miller, . 
 
 
 319 
 
 326 
 
 Harkinson v. Bacon, . 
 
 
 
 309 
 
 Harrison v. Brolaskey, 
 
 313, 
 
 315, 
 
 316, 
 
 
 
 322 
 
 324 
 
 Hess V. Hess, 
 
 
 
 319 
 
 Hillman v. Bouslaugh, 
 
 252 
 
 259 
 
 260 
 
 Holdship V. Patterson, 
 
 
 247, 
 
 326 
 
 Hopkins v. Jones, 
 
 
 
 341 
 
 Hornitz v. Norris, 
 
 
 
 329 
 
 House V. Spear, . 
 
 
 . . 
 
 315 
 
 Huber's Appeal, . 
 
 2'79 
 
 282 
 
 330 
 
 Jackson v. Robins, . . . 319 
 
 Jacob T. Williams' Appeal, 261, 269, 
 
 281, 282, 297, 305, 310, 319 
 
 K. 
 
 Kay V. Scales, 249, 252, 285, 286, 288, 
 
 315, 336 
 Keene's Estate, . . . .304 
 Keyser v. Mitchell, . . .329 
 
XXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Koenig's Appeal, . . . 300, 316 
 
 Kuha V. Newman, 245, 246, 283, 287, 
 
 288, 292, 315, 316, 336 
 
 Lancaster v. Dolan, 247, 249, 315, 320, 
 
 332, 333 
 M. 
 
 McBride v. Smith, . . 315, 338 
 
 McKee v. McKinley, 272, 273, 276, 322, 
 
 325 
 Jlegargee w. Naglee, . 247,300,311 
 Mengel's Appeal, . . . 340 
 
 Montmort v. Fidelity Co., . 283 
 
 Uoodj V. Snell, . . 256 
 
 Morris v. Phaler, . 319, 320 
 
 N. 
 
 Naglee's Appeal, 272, 273, 277, 278, 322, 
 
 325 
 Nice's Appeal, 266, 322, 324, 335 
 
 0. 
 
 Ogden's Appeal, . 
 Osborne v. Soley, 
 
 261, 305 
 259, 283 
 
 Paxson V. Lafferts, . 260 
 
 Peebles v. Reading, 337 
 
 Pennock v. Freeman, 337 
 
 Pennock's Estate, 340 
 
 Phillips' Appeal, . . .303 
 
 Physick's Appeal, 261, 264, 322, 324 
 Potts' Appeal, . . 268, 273, 340 
 
 Price V. Taylor, 252, 272. 273, 274, 276, 
 
 322, 325 
 Pullen D. Rianhard, 247, 249, 315 
 
 Ralston v. Wain, . 319, 322, 323, 341 
 
 Rife V. Geyer, 247, 248, 249, 283, 326, 
 
 327, 328, 336, 337 
 
 Rogers v. Smith, 
 Rush V. Lewis, 
 
 PAGE 
 
 332 
 
 285, 335, 336 
 
 Shankland's Appeal, . 290, 326 
 
 Sheet's Estate, . . 291, 340 
 
 Shonk V. Brown, . . . 333 
 
 Silknitter's Appeal, . . .293 
 Smith u. Starr, 308, 315, 316, 319, 320, 
 
 322 
 Springer v. Arnndel, . 316, 317, 321 
 Steacy v. Bice, 246, 252, 277, 308, 310, 
 
 315, 316 
 Stokes' Appeal, . . • 336 
 
 T. 
 
 Thomas v. Folwell, 
 
 Vaux V. Park, 
 
 V. 
 
 W. 
 
 247, 332, 333 
 
 247, 326 
 
 Wallace v. Coston, . . . 332 
 Wells V. McCall, 247, 248, 305, 315, 317, 
 
 318 
 
 Whichcote ti. Lyle, . . 285,311 
 
 Wickham v. Berry, . . . 293 
 
 Williams, Jacob T., 261, 269, 281, 282, 
 
 297, 305, 310, 319 
 
 V. Leech, 272, 273, 274, 277, 
 
 322, 324 
 
 Wright V. Brown, . 247 
 
 Yarnall's Appeal, 268, 271, 273, 305, 325 
 
 Z. 
 
 Zeigler's Appeal, . . 137, 149 
 
 Zimmerman r. Briner, . . 162 
 
THE LAW 
 
 MARRIED WOMEN IN PENNSYLVANIA. 
 
 CHAPTER I. 
 
 WHO IS A MARRIED WOMAN. 
 
 § 1. Marriage in Pennsylvania, as at common law, is 
 purely a civil contract, made by any appropriate words, 
 in the present time, without regard to form, between 
 parties competent to enter into it, and giving their full 
 consent.^ The clause of the Pennsylvania Act of 1701 
 (1 Sm. 22), which provides that "all marriages shall be 
 solemnized by taking each other for husband and wife, before 
 twelve sufficient witnesses," as well as those which require a 
 certificate of the marriage, under the hands of the parties and 
 twelve witnesses, to be registered in the office of the regis- 
 ter of the county, and publication of bans by posting on the 
 church or court-house doors, with other matters fallen into 
 disuse, are but directory, and marriages otherwise solemn- 
 ized are valid.^ At common law, the very foundation and 
 essence of the contract consists in consent freely given, by 
 parties competent to contract.^ And if the contract be made 
 
 ^ Hantz V. Sealy, 6 Binn. 405; Taylor, 9 Paige 611 ; Rose u. Clark, 8 
 
 Guardians of the Poor u. Nathans, 2 Paige 580 ; Com. v. Murtagh, 1 Ashm. 
 
 Brewst. 149 ; Physick's Estate, Ibid. 274 ; Londonderry o. Chester, 2 N. H. 
 
 179 ; Com. V. Stump, 3 P. P. S. 132 ; 268 ; 1 Bl. Com. 437 ; 2 Kent's Com. 
 
 Kichard v. Brehm, 23 P. F. S. 144 ; 86, 87. 
 
 Durand v. Durand, 2 Sweeny 315; ' Rodebaugh ». Sanks, 2 Watts 9. 
 Jackson v. Winne, 7 "Wend. 47 ; In re ^2 Kent's Com. 86. 
 1 
 
THE LAW OF MARRIED WOMEN. 
 
 per verba de prcesenti, and remain without cohabitation, it is 
 a valid marriage.^ 
 
 § 2. If the contract be made per verba de futuro, and be 
 followed by consummation, in Pennsylvania, it amounts to 
 a valid marriage, in the absence of all civil regulations to 
 the contrary.^ In Jewell v. Jewell,® however, which went 
 up to the Supreme Court of the United States on error from 
 the Circuit Court of the District of South Carolina, where 
 such a marriage was held to be valid, the Supreme Court 
 were equally divided upon the question, and, therefore, gave 
 no opinion. But in Cheney v. Arnold,* it was held that in 
 
 ' Richard v. Brehm, 23 P. F. S. 144 ; 
 2 Kent's Com. 87 ; 2 Greenl. Evid. § 
 460. In Dalrymple v. Dalrymple, 2 
 Hag. Con. R. 54, Lord Stowell says, 
 that by the ancient general law of 
 Europe a contract per verba de prce- 
 senti, cum copula, constituted a valid 
 marriage, without the intervention of 
 a priest, till the time of the Council of 
 Trent. 
 
 ' Richard «. Brehm, supra; and see 
 2 Kent's Com. 87. 
 
 2 1 How. U. S. 219. 
 
 ♦ 15 N. Y. Rep. 345. This was an 
 action to recover real estate in right 
 of a wife, and the case turned upon 
 her legitimacy. There had heen a 
 mutual engagement between her pa- 
 rents to marry at some future time, 
 after which she was begotten, but the 
 marriage was not actually celebrated 
 until some months after her birth. 
 Chief Justice Denio delivering the 
 carefully-considered opinion of the 
 Court says : " There was no agree- 
 ment between the parties to become 
 husband and wife in prcesenti, but 
 there was an agreement to be married 
 in futuro, and that was followed by 
 carnal intercourse, and if that consti- 
 
 tutes a marriage by our law, they 
 were married, and the plaintiff is 
 legitimate, otherwise she is not," 
 He then refers to a dictum of Judge 
 Cowen in Star v. Peck, 1 Hill 274, 
 sustaining the doctrine in favor of 
 the plaintiff's legitimacy to the doc- 
 trine as above laid down in the text 
 by Chancellor Kent, and a similar 
 view by Blackstone, and conceding 
 the law of England as it existed at 
 the time of the Revolution, and as 
 it was then administered in the tem- 
 poral courts upon that subject, to be 
 the law of the State of New York, 
 he comes to the conclusion, upon con- 
 sideration of the conilicting authori- 
 ties, that a contract of marriage ^er 
 verba de futuro, followed by carnal 
 intercourse, was a valid marriage by 
 the canon law, but not by the common 
 law, and therefore that doctrine was 
 not the law of the State by virtue of 
 the adoption of the common law of 
 England, and he goes on to say : 
 " Mutual promises to marry in the 
 future are executory, and whatever 
 indiscretions the parties may commit 
 after making such promises, they do 
 not become husband and wife until 
 
WHO IS A MARRIED WOMAN. 
 
 such case there was a valid contract of marriage by the 
 canon law, but not by the common law. 
 
 they have actually given themselves 
 to each other in that relation. That 
 this has heen the sense of the legal 
 profession and of the courts is evident 
 from the rules relating to several ac- 
 tions in common use. If a man seduce 
 a woman under a promise of marriage, 
 we allow an action for the seduction 
 at the suit of the father, and an action 
 for a breach of the promise at the 
 suit of the daughter. According to 
 the plaintiff's argument, both actions 
 would be absurdities, for, the marriage 
 being complete by the act complained 
 of, there would be no seduction and 
 no breach of promise. So in the 
 
 Chief Justice Tindal, offered to the 
 House of Lords, as the unanimous 
 opinion of the judges, " that by the 
 law of England, as it existed at the 
 time, of the passing of , the marriage 
 Act (26 Goo. II., c. 33), a contract of 
 marriage per verba de prcesenti was 
 a contract indissoluble between the 
 parties themselves, affording to either 
 of the contracting parties, by appli- 
 cation to the spiritual court, the 
 power of compelling the solemniza- 
 tion of the actual marriage ; but that 
 such contract never constituted a full 
 and complete marriage in itself, un- 
 less made in the presence and with 
 
 action for a breach of a promise of the intervention of a minister in holy 
 marriage, if it appear that the plain- orders." 
 
 tiff, on the faith of the defendant's 
 promise, has been seduced by him, 
 and has become enceinte, it is con- 
 sidered as a circumstance of great 
 aggravation, and the damages are 
 proportionately increased ; whereas, 
 if the plaintiff's position is sound, the 
 defendant, by the very act, has made 
 all the reparation in his ppwer, and 
 has become the husband of the plain- 
 tiff." As to the English law, he ob- 
 serves : " It is extremely difficult to 
 ascertain what the English matrimo- 
 nial law was prior to this statute" (26 
 Geo. II. c. 33), " and what it now is 
 in cases to which the statute does not 
 extend. Upon the question whether 
 contracts by present words, or by 
 agreement looking to the future for 
 its performance, with carnal inter- 
 course, but without formal cohabita- 
 tion, amounted to a legal marriage, 
 the cases are numerous and con- 
 flicting." 
 
 In The Q.ueen w.' Millis, 10 CI. & 
 Fin. 655 (1844), it was, per Lord 
 
 " That at all times, by the common 
 law of England, it was essential to 
 the constitution of a full and com- 
 plete marriage that there must be 
 some religious solemnity, that both 
 modes of obligation should exist to- 
 gether, the civil and the religious ; 
 that besides the civil contract, that is, 
 the contract per verba de prcesenti, 
 which has always remained the same, 
 there has at all times been also a re- 
 ligious ceremony, which has not al- 
 ways remained the same, but has 
 varied from time to time, according 
 to the variation of the laws of the 
 Church ; with respect to which cere- 
 mony it is to be observed, that what- 
 ever at any time has been held by the 
 law of the Church to be a sufficient 
 religious ceremony of marriage, the 
 same has at all times satisfied the com- 
 mon law of England in that respect." 
 
 This was an indictment for bigamy. 
 The defendant, a member of the Es- 
 tablished Church of England and Ire- 
 land, was married to Hester Graham 
 
THE LAW OF MARRIED WOMEN. 
 
 § 3. That the actual intent to contract marriage should 
 be manifest, and the proof of it be plain, direct, and acces- 
 sible, it is undoubtedly better that the marriage should 
 take place, or, in other words, the contract of marriage be 
 made formally, before witnesses, and if possible, solemnized 
 before a clergyman or magistrate. Nevertheless this is not 
 necessary,"for, being a contract, like every other contract, 
 it is to be proved either by positive evidence of the fact or 
 by other evidence from which the fact may be presumed;^ 
 
 in Ireland, by a Presbyterian minis- 
 ter, according to the rites of the Pres- 
 byterian Church. They cohabited 
 and lived together as man and wife 
 fof two years, when the defendant, in 
 the lifetime ofHester Graham, married 
 another person in England, according 
 to the forms of the Established Church, 
 and the question was, whether the 
 first contract thus entered into was 
 suf&ciently a marriage to support an 
 indictment against the defendant for 
 bigamy. In the Court of Queen's 
 Bench in Ireland, he was adjudged 
 not guilty, and upon error to the 
 House of Lords, the lords were 
 equally divided in opinion, and the 
 rule semper prcesumitur pro negante 
 applying, the judgment given in the 
 Court of Queen's Bench was affirmed. 
 
 An act has since been passed, how- 
 ever (7 & 8 Vict. c. 81), by which 
 marriages between parties, one or 
 both of whom are Presbyterians, may 
 be solemnized in certified Presbyte- 
 rian meeting-houses, and other stat- 
 utes have been enacted, confirming 
 marriages celebrated by Protestant 
 dissenting ministers in Ireland up to 
 the time of their passage. See The 
 Queen v, Millis, supra, 907. 
 
 In Scotland, a valid marriage be- 
 tween parties may be had by their 
 consent per verba de praisenti, such 
 
 parties being respectively above the 
 age of pupilage, without either bans 
 or license, and without the interven- 
 tion of any religious ceremony (Mon- 
 tague V. Montague, 2 Addams' Rep. 
 375 ; Hamilton v. Hamilton, 9 CI. & 
 Pin. 327 ; Cunninghams v. Cunning- 
 hams, 2 Dow's H. L. 510), and such 
 marriage would be obligatory upon the 
 parties, even though one of them did 
 not really intend a marriage, but was 
 practicing a deception upon the 
 other. " It is perfectly clear, I hold 
 it to be past all doubt in Scotland 
 at least," said Lord Brougham in 
 Hamilton v. Hamilton (9 CI. & Fin. 
 347), "that if a man says to a 
 woman, ' I take you for my wife,' and 
 she assents and says, 'I take you for 
 my husband,' she really intending to 
 take him for her husband, though he 
 may, all the while, only intend to de- 
 ceive her, or to deceive the world, or 
 to practice a fraud for any purpose, — 
 it is past all doubt, that she receiving 
 the proposition and assenting to it, he 
 should not be heard to say that he did 
 not mean it. He has contracted a 
 marriage with her as completely as if 
 he had really intended to contract 
 it, and not merely attempted to com- 
 pass a fraud." 
 
 1 Cunninghams v. Cunninghams, 2 
 Dow's H. L. 510. 
 
WHO IS' A MAKRIED WOMAN. 
 
 and in accordance with this, it is the settled law that the 
 fact of marriage may be established not only by proof of the 
 ceremony itself, but in all civil cases other than actions for 
 seduction^ or adultery, or in public prosecutions for bigamy 
 or adultery,^ by presumptive evidence, such as reputation 
 and cohabitation of the parties as husband and wife f by 
 
 ' Kenyon v. Ashbridge, 11 Casey 
 160. 
 
 ^ 2 Kent's Com. 87. 
 
 ' Chambers v. Dickson, 2 S. & R. 
 476 ; Covert v. Hertzog, 4 Barr 145 ; 
 Thorndell v. Morrison, 1 Casey 326 ; 
 Hanna v. Phillips, 1 Grant 256 ; Rose 
 V. Clark, 8 Paige 580 ; Guardians of 
 the Poor v. Nathans, 2 Brews. 149 ; 
 In re Taylor, 9 Paige 611 ; Physiok's 
 Estate, 2 Brews. 179; Bioking's Ap- 
 peal, 2 Brews. 202 ; De Amarelli's 
 Estate, 2 Brews. 239 ; s. c. Vincent's 
 Appeal, 10 P. r. S. 228 ; Yardley's 
 Estate, 25 P. F. S. 207; Com. v. 
 Stump, 3 P. P. S. 132; Brioe's 
 Estate, 32 Leg. Int. 396 ; Richard n. 
 Brehm, 23 P. F. S. 140. See Omo- 
 hundro's Estate, 16 P. P. S. 113 ; s. 
 c, 2 Brews. 298. 
 
 In Physiok's Estate, 4 Am. Law 
 Reg. N. S. 423 ; 2 Brews. 179, the 
 learned auditor, in his report (which 
 was adopted by the Supreme Court as 
 expressing their own views upon the 
 questions raised), thus states the gen- 
 eral doctrine in Pennsylvania upon 
 this subj ect. He say s : 
 
 " In this commonwealth marriage 
 in its legal aspect is emphatically a 
 civil contract and nothing more. The 
 precepts of religion and morality may 
 add to its solemnity, but they have 
 nothing to do with its civil obliga- 
 tion. Even the restrictions arising 
 from consanguinity, or from a prior 
 existing engagement of the same na- 
 ture, or from other incapacities to 
 
 contract, derive their validity from 
 the enactments which follow the dic- 
 tates of religion, and not from those 
 dictates themselves. The essence of 
 the engagement consists in a consent 
 freely given by parties competent at 
 the time to contract. 
 
 " However, therefore, marriage may 
 differ in some particulars from other 
 contracts, as in being valid between 
 infants, or when made on Sunday, or 
 in being dissoluble by legislative 
 enactment and not by consent of par- 
 ties merely, it is still to be proved in 
 civil cases, as all other contracts are, 
 by direct proof of execution, by ad- 
 mission of parties, especially against 
 interest, and by influences from cir- 
 cumstances, peculiarly belonging to 
 the conjugal relation; and it may be 
 proved, as other contracts generally 
 cannot be proved, by public reputa- 
 tion. 
 
 " It is familiar law, that reputation 
 and cohabitation are sufficient evi- 
 dence of marriage in Pennsylvania 
 for all civil purposes. The declara- 
 tions and admissions of the parties 
 are at least of equal force ; and this 
 is the case even in some actions of a 
 criminal nature. 
 
 " The admissions of parties, in this 
 instance, as in all others, come within 
 the class of direct proofs. If once 
 established, they are of great weight, 
 especially when made under circum- 
 stances which are against the interest, 
 or may be turned to the disadvantage, 
 
6 
 
 THE LAW OF MAREIED WOMEN. 
 
 their acknowledgments or admissions, oral or written ; and 
 by their conduct.^ Even the rule that strict proof of sol- 
 
 of the party by whom they are made. 
 Like other direct proof, they can only 
 he repelled by superior proof of the 
 same nature, amounting to a contra- 
 diction. 
 
 " The proof from circumstances, 
 such as reputation, conduct, and co- 
 habitation, is presumptive and infer- 
 ential. As with other presumptions, 
 it may be rebutted by showing incon- 
 sistent circumstances, or such as lead 
 to a contrary presumption.'' See Clay- 
 ton V. Warden, 4 Comst. 230. 
 
 1 Hill V. Hill's Adm'r, 8 Casey 511 ; 
 Kenyon v. Ashbridge, 11 Casey 160 ; 
 Guardians of the Poor v. Nathans, 2 
 Brews. 149 ; In re Taylor, 9 Paige 
 611. 
 
 De Amarelli's Estate, 2 Brews. 
 239, was a peculiar case, in some re- 
 spects resembling that of Hamilton v. 
 Hamilton, 9 CI. & Fin. 327, and both 
 illustrations of the force of admis- 
 sions. Vincent de Amarelli, a for- 
 eigner, was a gentleman of education 
 and culture, a professor of the Italian 
 language and literature in the Univer- 
 sity of Pennsylvania, mingling in the 
 best society as a single man, and hav- 
 ing his regular places of board, where 
 he constantly slept and took his meals, 
 and where, too, he was known only 
 as a single man. For a servant girl 
 who had been employed at a house 
 at which he boarded, he took board 
 in a more obscure part of the city, as 
 his wife, under the name of Vincent, 
 and continued to find board for her, 
 as his wife, under the same name, at 
 different places down to the time of 
 his death. At none of these places 
 did he engage board for himself, but 
 at all of them made some kind of 
 arrangement to pay for his meals 
 
 when he should take them ; and to 
 none of the persons with whom Mrs. 
 Vincent boarded waS' he known by 
 his real name, but was known only by 
 the assumed name of Vincent. His 
 death took place at his own boarding- 
 house, whence he was buried without 
 the knowledge of Mrs. Vincent as to 
 either event. He had by her three 
 children, one of whom died in his life- 
 time, and all of whom, in his commu- 
 nications with her, he recognized as 
 their oifspring, and seemed to take an 
 interest in and love them as a father, 
 while his letters to her when abroad 
 manifested devotion and love for her, 
 and deep interest in her welfare. In the 
 early part of the connection between 
 them, in response to a request of the 
 landlady with whom Mrs. Vincent 
 boarded, for what she called " satis- 
 faction as to the marriage," he pro- 
 mised to satisfy her either by wit- 
 nesses or by the marriage certificate, 
 and the next time he went to the 
 house carried what purported to be a 
 certificate of marriage, wholly in 
 Latin, written in his own handwriting, 
 both text and signatures, and pur- 
 porting to be signed by "J. Borres, 
 D.D.," of whose existence no evidence 
 was produced, and purporting to be 
 witnessed by three gentlemen, two 
 of whom, or who were supposed to 
 be the persons whose names were 
 attached to the certificate, were called 
 as witnesses, and both testified that 
 no such marriage had ever taken 
 place in their presence, and that the 
 signatures attached to the certificate, 
 if intended for their names, were for- 
 geries. De Amarelli endorsed upon 
 this certificate, in his own hand- 
 writing, that it was the certificate of 
 
WHO IS A MARRIED WOMAN. 
 
 eranization of marriage is necessary in bigamy, and in 
 actions for criminal conversation, has been so far relaxed in 
 
 their marriage. There was no posi- 
 tive evidence that the original con- 
 nection vras illicit ; while there was 
 some evidence of reputed marriage 
 among her acquaintances. By his 
 will he gave her a legacy of five hun- 
 dred dollars, and subsequently, after 
 the birth of his second child, he be- 
 queathed her three thousand dollars, 
 and sundry articles committed to her. 
 
 The Orphans' Court for the City 
 and County of Philadelphia, confirm- 
 ing the report of the auditor, held 
 that there was no marriage between 
 these parties ; but upon appeal to the 
 Supreme Court, their decree was re- 
 versed, the Court decreeing that there 
 was sufficient proof of a marriage, 
 and the children legitimate, upon the 
 ground that the endorsement made 
 by De Amarelli upon the false cer- 
 tificate of marriage, coupled with the 
 preexisting evidence tending to show 
 marriage, was an admission of the 
 marriage. And the Court say : 
 
 " Upon the whole evidence, we are 
 clearly of opinion in this case, that 
 the proof of marriage was sufficient, 
 and that the circumstances relied on 
 as disproving this presumption are 
 too weak and inconclusive, in view of 
 the explanation furnished by the cir- 
 cumstances themselves. Marriage, 
 followed by the birth of issue, lies at 
 the very base of the social fabric and 
 of all good morals, and looking at the 
 consequences to society, we feel un- 
 willing to suffer an acknowledged 
 marriage and parentage of children to 
 be overthrown by weak and inconclu- 
 sive reasons drawn from the difference 
 of position in life, and from conduct 
 readily explained by the circumstances 
 of the parties. Mystery may surround 
 
 its origin, suspicion may linger in its 
 circumstances, and slight doubt dis- 
 turb its clearness, but the policy of 
 the State demands that this relation 
 should not be lightly discredited, and 
 the issue bastardized. This is neces- 
 sary in a country where marriage is a 
 civil contract and often unattended by 
 ceremony, or performed by a single 
 officiating witness." 
 
 As an instance where admissions 
 were held insufficient evidence of a 
 marriage, Omohundro's case, 16 P. 
 F. S. 113 ; s. c, 2 Brews. 298, may be 
 cited. Silas Omohundro had resided 
 for many years in Richmond, Vir- 
 ginia, and died there about July 1, 
 1864, leaving certain real estate in 
 Philadelphia and Lancaster, Penn- 
 sylvania. Accompanied by Corinna 
 Omohundro, his slave, by whom he 
 had five children, he visited Philadel- 
 phia and Lancaster on two or more 
 occasions, in the years 1857 to 1859, 
 remaining for a week or ten days, and 
 on these occasions called her his wife, 
 and introduced her as such. By his 
 will, proven at Richmond, July 4, 
 1864, he emancipates and forever sets 
 free from all manner of servitude his 
 "woman Corinna Omohundro," and 
 her five children, naming them, and 
 whom he declares also to be his own 
 children, and he then devised certain 
 real estate to the said Corinna Omo- 
 hundro for life, and directed the whole 
 of his real and personal estate to be 
 sold by his executors, and the pro- 
 ceeds to be divided between the said 
 Corinna and her five children. It was 
 held that there was no sufficient evi- 
 dence of marriage in the case. In 
 the view of the Court, the declarations 
 of the alleged husband, and the evi- 
 
8 THE LAW OF MARRIED WOMEN. 
 
 Pennsylvania as to permit the admissions and acknowledg- 
 ments of the defendant in a case of crim. con. to he given in 
 evidence to prove marriage.-^ 
 
 § 4. Both cohabitation and reputation are necessary to 
 establish a presumption of marriage where there is no proof 
 of actual marriage.^ But public cohabitation of parties, as 
 husband and wife, is, nevertheless, presumptive proof of a 
 valid marriage, and becomes conclusive evidence of such 
 marriage when not distinctly proved that the parties did not 
 intend to contract matrimony.^ For cohabitation is presumed 
 to be lawful till the contrary appears, and in questions of 
 marriage, and of legitimacy where children are concerned, 
 the presumption of law is in favor of innocence.* In the 
 case of equal conflicting presumptions, the one in favor of 
 innocence must prevail. And so, the same proof that is 
 sufficient to raise a presumption of innocence may be inad- 
 equate to raise a presumption of guilt.* 
 
 denoe of cohabitation and reputation marriage does not consist of cohab- 
 in Pennsylvania, are overcome by the itation and reputation merely, but 
 fact that the alleged wife and her there is strong circumstantial evi- 
 children claim under the will of the dence of the very fact of marriage, 
 alleged husband, which, in its terms, such evidence, where the object is 
 contradicts and negatives all idea of a to bastardize the issue in a civil con- 
 marriage ; that there was no proof of test for property, is not contradicted 
 cohabitation and reputation at the by evidence that later in life, and 
 place of residence of the parties, but long after the birth of the issue in- 
 only in Pennsylvania, during two tended to be bastardized by it, the 
 short visits, and that the relation of sla- father and mother had separated, and 
 very of the woman to the man created the mother, in the father's lifetime, 
 a presumption against a marriage. had united herself to another man, 
 
 ' Com. V. Murtagh, 1 Ash. 274 ; calling him husband ; and therefore, 
 
 Forney v. Hallacher, 8 S. & R. 158 ; in such case, the latter evidence 
 
 Thorndell v. Morrison, 1 Casey 327. would be inadmissible. Did the case 
 
 ^ Com. V. Stump, 3 P. F. S. 132 ; depend on proof of cohabitation and 
 
 Richard v. Brehm, 23 P. F. S. 144. repute only, the interruption of the 
 
 ' Montague v. Montague, 2 Addams cohabitation, and cohabitation with 
 
 375. another man, might be rebutting : 
 
 * Senser v. Bower, 1 Penna. 450 ; Freno v. Freno, 1 Weekly Notes 165. 
 The King v. The Inhabitants of ' Senser v. Bower, supra ; 2 Stark. 
 
 Twyning, 2 B. & Aid. 385 ; 2 Greenl. Bv. 686. 
 Ev. I 462. Where the evidence of 
 
WHO IS A MARRIED WOMAN. 
 
 the connection between the 
 been illicit in its origin, and 
 
 § 5. Where, however, 
 parties is shown to have 
 criminal in its nature, the law raises no presumption of 
 marriage.^ In Rose v. Clark, 8 Paige 582, the Court say : 
 " The mere fact of a man and woman living together and 
 carrying on an illicit intercourse is wholly insufficient to 
 raise a legal presumption of marriage, as it too often happens 
 that such cohabitation takes place when the intercourse 
 between the parties is clearly meretricious. The presump- 
 tion of marriage only arises from matrimonial cohabitation, 
 where the parties not only live together as husband and 
 wife, but hold themselves out to the world as sustaining 
 that honorable relation to each other." " The repute of 
 marriage," says Lord Redesdale,^ " must be general. The 
 conduct of the parties must be such as to make almost 
 every one infer that they were married."^ But where this 
 
 ^ Cunninghams v. Cunninghams, 2 
 Dow's H. L. 482. 
 
 ^ Cunninghams v. Cunninghams, 
 supra, 514. 
 
 ' The following charge to the jury 
 by Mr, Justice Biddle in Brinckle v. 
 Brinckle (34 Leg. Int. 428), Com. 
 Pleas, No. 1, Philadelphia Co., is 
 so appropriate and seems to set forth 
 the law upon this subject so clearly, 
 that we give it entire : 
 
 " Gentlemen of the Jurt : — There 
 are two questions for your decision 
 in the present case : 
 
 " Was the plaintiff married to the 
 defendant ? 
 
 " If so, did he desert her? 
 
 " There is no pretence that there was 
 any marriage under the sanction of a 
 religious ceremony or before any 
 officer of the law. 
 
 " This is not necessary, however, in 
 Pennsylvania to constitute a valid 
 marriage. 
 
 " We look upon it here, in its legal 
 
 aspect, as a civil contract. It can be 
 proved, as all other contracts, by 
 direct proof of its being executed by 
 the parties, or it can be inferred from 
 circumstances, such as reputation, 
 conduct and cohabitation. 
 
 "While, however, we treat it as a 
 civil contract, and not as a religious 
 sacrament, it is not to be assumed 
 that it is thereby intended to lessen 
 in any degree the supreme import- 
 ance of it. It is recognized here, as 
 it is in all civilized countries, as the 
 most solemn and important engage- 
 ment into whiol| two human beings 
 can enter. Those, therefore, who 
 flippantly speak of it as a ' mere' 
 contract, intending thereby to reduce 
 it to the level of an ordinary mercan- 
 tile transaction, involving the right 
 to a few dollars, do great injustice 
 to our law and to the civilization of 
 our age. 
 
 " When, then, it is attempted to be 
 established without the formalities 
 
10 
 
 THE LAW OF MARRIED WOMEN. 
 
 is the case, even if an Ulicit connection had originally ex- 
 isted between the parties, an actual marriage would be 
 
 usually attending the formation of 
 such contracts, we should examine 
 it with great scrutiny, and be entirely 
 satisfied that this most solemn con- 
 tract has been entered into by the 
 voluntary assent of both parties. 
 
 " In the artificial life existing in 
 great cities, men and women volun- 
 tarily form sexual relations to each 
 other not having the sanction of law. 
 
 " Men are induced to form these 
 relations through an infatuation fos- 
 tered by designing women, quite as 
 often as women are enticed into them 
 by the unscrupulous of our sex. It 
 is, therefore, absolutely necessary, in 
 all cases where marriage is a matter 
 of inference, to be careful that it 
 should not be drawn from facts 
 which indicate a, very diiferent con- 
 nection. 
 
 " The plaintiif claims to have estab- 
 lished that a matrimonial contract 
 existed between her and the defend- 
 ant — • 
 
 " 1. By an actual ceremony of mar- 
 riage. 
 
 "2. By admissions of the defendant. 
 
 " 3. By inferences arising from the 
 cohabitation of the parties, and their 
 general reputation as man and wife. 
 
 " It is alleged, first, that a marriage 
 ceremony actually took place ; that 
 the contract was actually executed 
 on a Saturday in January, 1857, by 
 Mr. Brinokle taking the plaintiif, in the 
 presence of a witness, as his wife, and 
 giving her a ring ; that she assented, 
 took him as her husband, and that this 
 was followed by cohabitation. 
 
 " If you believe this to have taken 
 place as described by her, it would 
 constitute a legal marriage. It stands, 
 however, as a simple assertion of the 
 
 plaintiff, supported by nothing, and 
 most positively denied by the defend- 
 ant. The witness is not produced to 
 affirm it, and it is contended by the 
 defendant that the various accounts 
 given of it show that the story was 
 an entire fabrication ; that, in fact, 
 it was a recent invention, forced upon 
 the plaintiff by the necessities of her 
 case. 
 
 " The other grounds of cohabita- 
 tion, reputation and admissions, are 
 circumstances from which marriage 
 may be inferred, and in some cases 
 they are of the most conclusive 
 character. 
 
 " In cases where the fact is in dis- 
 pute between the parties themselves, 
 the proof of this kind must be very 
 much greater than where it is set up 
 by innocent third parties. As in the 
 case of partnership, very little will 
 make persons partners to those who 
 deal with them on the faith of it, but 
 it will take a great deal to establish 
 it as between the parties themselves. 
 The furniture dealer or grocer who 
 should have supplied the plaintiff 
 with goods, could make the defend- 
 ant responsible upon a very slight 
 admission. This would, however, be 
 on a different principle, the ground 
 of public policy, which makes every 
 man responsible for what he holds 
 himself out to be to those who are 
 deceived by it. 
 
 " Where the admission was intended 
 by the parties themselves to conceal 
 their true relation to each other, it 
 would be a great injustice to permit 
 either of them to appeal to it as evi- 
 dence of their true relation. The mean- 
 ing and extent of the acknowledgment 
 must depend upon all the circumstan- 
 
WHO IS A MARRIED WOMAN. 
 
 11 
 
 presumed.^ In re Taylor, it appeared that Taylor,' about a 
 year subsequent to the death of his first wife, introduced 
 
 ^ In re Taylor, 9 Paige 611, per Walworth, Chancellor. 
 
 ces taken together. For instance, a man 
 and woman go to a hotel, and to get a 
 room together they agree to pass 
 themselves off as man and wife. The 
 landlord could, of course, make the 
 man pay the woman's board, whether 
 she was really his wife or not ; 
 having represented her as such, it is 
 conclusive of the fact, as far as the 
 landlord is concerned. But when the 
 woman claims that this trick to de- 
 ceive the landlord is an admission to 
 her that the man has taken her for 
 his wife, it would be very far from 
 conclusive of the fact. 
 
 " In the twelfth chapter of Genesis 
 we read that when Abram took his 
 wife Sarai into Egypt, he said to 
 her : ' Say, I pray thee, thou art my 
 sister ; that it may be well with me 
 for thy sake : and my soul shall live 
 because of thee.' 
 
 " This declaration might deceive 
 those to whom it was made, but it 
 surely could not be argued that it 
 deceived either of the parties who 
 agreed to make it. 
 
 " Admissions and declarations, if 
 made to subserve a mere temporary 
 purpose for the interest of both par- 
 ties — as to induce servants to live 
 with them, to quell the suspicions of 
 keepers of lodging-houses, or to 
 secure respectful treatment in public 
 conveyances, or to satisfy the too-, 
 prying curiosity of strangers — would 
 have infinitely less importance than 
 if made to the family circle or to tKe 
 friends of the family, whose charac- 
 ters demanded the highest good faith 
 and the greatest respect. 
 
 " In one case it would be a mere 
 
 sham and pretence, knowingly kept 
 up by both parties for their own con- 
 venience or comfort ; while in the 
 other it could be attributed to no 
 other cause than a desire to make an 
 existing fact known to those whose 
 right it was to be informed of it. 
 
 " Cohabitation does not mean mere- 
 ly living together ; it means living 
 together as husband and wife. The 
 mere fact of a man and woman living 
 together, and carrying on an illicit 
 intercourse, is wholly insufficient to 
 raise a legal presumption of marri- 
 age, as it too often happens that such 
 cohabitation takes place where the 
 intercourse of the parties is clearly 
 meretricious. The presumption only 
 arises from matrimonial cohabitation, 
 where the parties not only live 
 together as husband and wife, but 
 hold themselves out to the world as 
 sustaining that honorable relation to 
 each other. 
 
 " The cause of morality itself re- 
 quires this distinction to be observed, 
 otherwise women would be tempted 
 into illicit intercourse, by the hope 
 that they could make it legal, if they 
 only made it shameless. 
 
 " Marital cohabitation is generally 
 evinced by the parties being received 
 into the society of their friends as 
 man and wife — being entertained by 
 them as such — being visited by re- 
 spectable families in their neighbor- 
 hood, and by their attending church 
 together and demeaning themselves 
 in public, and addressing each other 
 as persons actually married, and 
 bearing openly the same name. 
 
 " Cohabitation, with none of these 
 
12 
 
 THE LAW OP MARRIED WOMEN. 
 
 a young woman, who then resided in his family, to some of 
 his friends as Mrs. Taylor ; that, at about the ordinary 
 
 attendant oiroumstanoes, when par- 
 ties have resided many years in the 
 same place, is naturally a subject of 
 grave suspicion, and evinces no such 
 relation as the law recognizes. 
 
 " The purpose of our law is to pre- 
 vent people who have lived openly 
 before the world as man and wife 
 from subsequently denying their re- 
 lationship, because no actual cere- 
 mony has taken place. Where the 
 only additional thing wanting to es- 
 tablish it is a mere form, the law 
 says the absence alone of that form 
 shall not vitiate the contract. It 
 never was intended to entrap people 
 into a relation they never contem- 
 plated, because they unadvisedly, in 
 the course of their intercourse, have 
 said or done something before some- 
 body, from which, disconnected from 
 all other circumstances, a marriage 
 might be inferred. 
 
 "Reputation is another incident 
 from which, being joined with cohab- 
 itation, the married relation may be 
 inferred. It is essential, however, 
 that the reputation of marriage must 
 be general. The conduct of the par- 
 ties must be such as to make almost 
 every one infer that they were mar- 
 ried. It is the reputation arising 
 from their holding themselves out to 
 the world as occupying that relation 
 to which the law refers. It is not 
 enough that an opinion may exist 
 that they ought to be married from 
 their great intimacy, but it is the 
 belief that they are married which 
 constitutes the reputation of it. 
 
 by their relatives, neighbors, friends 
 and acquaintances. 
 
 " If it were sufficient to show that 
 a dozen people thought they had 
 reason to believe it, another woman 
 who did not happen to know these 
 dozen people might marry the same 
 man, and subsequently find her mar- 
 riage declared void and her children 
 made bastards. 
 
 " The proof from circumstances, 
 such as reputation, conduct, and co- 
 habitation, is presumptive and infer- 
 ential. As with other presumptions, 
 it may be rebutted by showing incon- 
 sistent circumstances, or such as lead 
 to a contrary conclusion. Where a 
 woman claims the sacred name of 
 wife, her conduct must correspond to 
 that honored position. If she ad- 
 mits other men to her embraces, or 
 plays the part of a wanton in the 
 public streets, she cannot expect to be 
 credited when she makes such a 
 claim. Giving difiereut accounts of 
 the mode in which she was married, 
 calling herself and executing instru- 
 ments of writing in her maiden name, 
 unless satisfactorily explained, are 
 strong evidences of the falseness of 
 her claim. 
 
 " The credibility of the witnesses is 
 for you alone to judge of, and when the 
 plaintiff is flatly contradicted in nu- 
 merous assertions and details, you 
 must determine who is most entitled to 
 credit, and whether her credit is so 
 impeached as to discredit all her 
 assertions. 
 
 "In the present case almost every 
 
 Their acts should be inconsistent important allegation of the plaintiff 
 
 with any other inference than that of is denied by the defendant, 
 marriage to justify the repute of it, "He claims that their cohabitation 
 
 and this repute should be credited was neither marital nor continuous. 
 
WHO IS A MARRIED WOMAN. 
 
 13 
 
 period of gestation thereafter, her first child was born, and 
 that for the period of eleven years subsequent to that 
 
 and the repute of their marriage, so 
 far from being general and notorious, 
 never existed at all ; on the contrary, 
 that every one who knew him — every 
 friend, every neighbor, 'every ac- 
 quaintance — knew that it was illicit, 
 and that it was the scheme of the 
 plaintiff's life, by all the arts famil- 
 iar to the abandoned and shameless 
 woman, to make it appear otherwise. 
 
 " Of these matters you are the 
 judges. The evidence of the case 
 has been presented to you by able 
 counsel on both sides. If I should 
 undertake to go over it again I 
 should have to go over it all, in jus- 
 tice to both parties. I shall not 
 weary you by doing so, as I feel con- 
 fident that, having given you the 
 principles of law involved in the 
 case, you will have no difficulty in 
 applying to them the facts. 
 
 " There are cases reported in our 
 books, where young, innocent and 
 inexperienced girls have been tempted 
 into illicit intercourse ; where the 
 parties have lived together, and have 
 had children born to them, and 
 where, on the opening of the man's 
 will, it has been found that, taking 
 advantage of the fact that no mar- 
 riage ceremony has taken place, he 
 has attempted to leave most of his 
 fortune to collateral heirs, and to 
 bastardize his issue. In those cases, 
 courts and juries, with natural indig- 
 nation, have been glad to take ad- 
 vantage of every admission in favor 
 of youth and innocence. They have 
 presumed from these facts that the 
 woman has been misled from her 
 confidence in the man ; that she has 
 herself thought that the marriage 
 relation existed, and she has con- 
 
 sequently been put in the place of 
 an innocent third party, to whom, as 
 I have before said, very slight evi- 
 dence is held to be conclusive against 
 him who makes the representation. 
 
 " There can be no pretext of any 
 such state of affairs here. Whatever 
 the character of the plaintiff may be, 
 she has certainly had sufficient ex- 
 perience of life to put her out of the 
 category of the young, simple and 
 inexperienced. There is no reason 
 here to mislead your judgments to 
 give to the circumstances of the case 
 any more force than actually belongs 
 to them. 
 
 "The question of desertion has 
 been but slightly alluded to, but the 
 ground set up by the defendant in 
 denying the marriage and refusing 
 to live with the plaintiff would be 
 sufficient evidence on that point, if 
 you should believe that there ever 
 was any marriage. 
 
 " If you believe that there was no 
 marriage, then, of course, there could 
 be no desertion, and your verdict on 
 both issues should be for the defend- 
 ant. 
 
 " I have endeavored to lay down to 
 you, as briefiy as I could, the princi- 
 ples of law to which you are to apply 
 the facts in this case. 
 
 " That the plaintiff was either the 
 mistress or the wife of the defendant 
 admits of no doubt. Are the facts 
 which have been proved to you more 
 consistent with the theory that she 
 was his mistress or his wife? Was 
 his conduct such as to indicate to the 
 world that he had entered into a con- 
 tract which St. Paul tells us is ' hon- 
 orable among all men '? 
 
 " Was her conduct that of an 
 
14 THE LAW OF MARRIED WOMEN. 
 
 event lie continued to cohabit with her as his wife, and to 
 hold her out to the world as such, and the Court held that 
 these facts were sufficient to authorize the presumption of 
 an actual marriage between the parties by a contract in 
 prcesenti, at a period about a year from the death of the first 
 wife, and that the intercourse with him of the alleged 
 second wife was connubial and not meretricious subsequent 
 to that period, even if there was reason to believe that an 
 illicit connection had before existed between them. And 
 so ^here, per verba de prcesenti, the alleged husband 
 acknowledges the woman to be his wife, and she assents to 
 it, coupled with cohabitation and having children, this 
 would be a marriage by the law of Scotland, and, doubtless, 
 by our own, though the connection had been originally 
 illicit, and the parties were not reputed to be husband and 
 wife.^ In Physick's Estate,^ the original connection 
 between the parties had been illicit, and during that time 
 a son was born, who was subsequently legitimatized by 
 Act of Assembly. Afterwards the parties cohabited together 
 as man and wife. The lady was recognized by Mr. Physick 
 as his wife, introduced and spoken of to( others as such, 
 subsequently went abroad and returned with him as his 
 wife, after which they continued to "cohabit together as 
 
 honored and virtuous wife, who, for- should not relieve the defendant from 
 
 saking all others, kept only unto one, the consequences of his acts, if by 
 
 on whom she had centred her love, them he has misled the plaintiff and 
 
 her honor and her duty ? the public, yet, at the same time, you 
 
 "Both relations are of a very inti- should not make him a victim to his 
 
 mate character, but the difference is foolish or immoral practices if you 
 
 very marked. It is one of those think he has done neither. Or if 
 
 matters in which it is difficult, if not you believe from the evidence that 
 
 impossible, to lay down a rule to this is a base scheme, concocted by 
 
 which each case can be applied, yet, an abandoned woman, to levy black- 
 
 at the same time, there is a distinc- mail upon the defendant, you should, 
 
 tion between the relations which is by your verdict, place upon it the 
 
 easily understood and universally re- seal of your reprobation." 
 
 cognized. ' Hamilton v. Hamilton, 9 CI. & 
 
 " Your effort in this case must be Fin. 327. 
 
 not to confound them. While you * 2 Brews. 179. 
 
WHO IS A MARKIED WOMAN. 15 
 
 man and wife, and were reputed to be such down to the 
 time of his death. While abroad a daughter was born, who 
 was held to have been born in lawful wedlock, and to be 
 legitimate. Bicking's AppeaF was a similar case, the connec- 
 tion between the parties having been originally illicit, but 
 there had been cohabitation and reputation as husband and 
 wife for a number of years, and repeated admissions of the 
 husband. During this time a daughter was born, who took 
 his name, and was acknowledged by him to be his daughter. 
 He finally became insane, and died a few months after- 
 wards ; and the Court sustained the claim of the wife to a 
 share in his estate as widow, and that of the child to parti- 
 cipate therein equally with the children of a former mar- 
 
 § 6. So a subsequent marriage may be inferred from acts 
 of recognition, continued matrimonial cohabitation, and 
 general reputation, when the parties originally came 
 together under a void contract of marriage} Thus in Rose 
 V. Clark,^ Abigail Rose had been married several times. 
 Her first and second husbands had deserted her ; and the 
 first husband, Prink, survived untU after her final marriage 
 with Rose. After the death of Frink there was no proof of 
 a re-marriage, but Rose cohabited with her, acknowledged 
 her as his wife, and she was recognized as such by the 
 children of Rose, and as their step-mother, down to the 
 time of his death. It was held that the marriage of 
 Rose during the life of Frink was void, but that the facts 
 and circumstances proved were sufficient to warrant the in- 
 ference of an actual marriage subsequent to the death of 
 Frink. In Fenton v. Reed,* Elizabeth Guest was the law- 
 ful wife of John Guest in 1785. Some time in that year 
 Guest left the state for foreign parts, continued absent 
 
 1 2 Brews. 202. ^ Supra. 
 
 2 Rose V. Clark, 8 Paige 574. * 4 Johns. 52. 
 
16 THE LAW OF MARRIED WOMEN. 
 
 until some time in the year 1792, and it was reported and 
 generally believed that he had died abroad. In 1792 Mrs. 
 Guest married Reed, and subsequently, in that year. Guest 
 returned to the state and continued to reside there until 
 June, 1800, when he died. After his death, Reed and his 
 wife continued to cohabit together as husband and wife, 
 under the reputation and understanding that they were 
 such, until Reed's death in 1806, she sustaining a good 
 reputation in society ; but no solemnization of marriage was 
 proved to have taken place between them subsequently to 
 the death of Guest. It was held that though the original 
 marriage with Reed was void, because the first husband 
 was then living, yet the cohabitation and reputation after 
 he died were sufficient to warrant the jury in inferring a 
 subsequent marriage. So in Jackson v. Clow,^ Hannah 
 Van Bushkirk was married to John A. Van Bushkirk while 
 a former reputed wife of the latter was supposed to be 
 living. They cohabited together as man and wife, and 
 were reputed to be such, bearing a good character in 
 society, for a number of years after the presumed death 
 (from seven years absence) of the former wife ; and the 
 Court, upon the authority of Fenton v. Reed, held there 
 was sufiicient proof of an actual marriage after the pre- 
 sumed death of the first wife. In Wilkinson v. Payne,^ 
 a marriage in England was illegal from the infancy of 
 the husband. When he came of age his wife was on her 
 death-bed, lying in extremis, and died in three weeks after- 
 wards ; and, on the ground of cohabitation and treatment as 
 man and wife, the jury presumed a marriage subsequent to 
 the arrival of the husband at full age, and the Court sus- 
 tained the verdict. 
 
 § 7. Repute and admissions, in order to render them ad- 
 missible in evidence, must be part of the res gestce, and, as 
 
 ' 8 Johns. 346. M T. R. 468. 
 
WHO IS A MARRIED WOMAN. 17 
 
 such, contemporaneous with the fact which they are in- 
 tended to support. Thus, say the Court In re Taylor, 
 supra, " If a man and woman are cohabiting together, and 
 the question to be decided on is whether the character of 
 her intercourse with him is matrimonial or meretricious, the 
 declarations of the parties during the existence of such 
 intercourse, the fact of their appearing in public with each 
 other as husband and wife, of their visiting in respectable 
 families, and of their being treated by their acquaintances 
 and spoken of by them as sustaining that relation to each 
 other, constitute a part of the res gestce, showing the char- 
 acter of that intercourse to be matrimonial and virtuous. 
 And contemporaneous declarations and attending circum- 
 stances of a different character would be legal evidence 
 from which the conclusion might legitimately be drawn that 
 the intercourse between the parties was illicit and dis- 
 honorable." 
 
18 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER II. 
 
 VOID AND VOIDABLE MARRIAGES. 
 
 Incestuous Marriages. 
 
 § 8. "At common law," says Sharswood, J./ "there 
 were two kinds of disabilities affecting the validity of the 
 marriage relation. The jBrst were termed canonical, de- 
 pending on the law of the church, and enforced in the 
 ecclesiastical court. Among these were consanguinity and 
 affinity. These causes rendered marriage voidable only, 
 and it was necessary that the nuUity should be declared 
 during the lifetime of the parties, otherwise they were and 
 continued valid for all civil purposes. The second kind 
 were civil disabilities, such as a prior marriage, infancy, 
 idiocy, lunacy, fraud or force. These made the contract 
 void ah initio, and the union meretricious. In such cases no 
 sentence of nullity or decree of divorce was required, but 
 at all times, whether during the lifetime of the parties or 
 afterwards, the marriage might be considered and treated as 
 null and void. In this State there are no merely canonical 
 disabilities, for the canons of no church are of any binding 
 force, nor are there any ecclesiastical courts to pass sen- 
 tence upon offenders pro salute animarum. Consanguinity 
 and affinity within the prohibited degrees are civil disabili- 
 ties by force of express statute, and make the marriage nuU 
 and void without decree of divorce, except as otherwise pro- 
 vided. That this is so whenever a marriage is declared 
 null and void by the express provision of some statute, is 
 abundantly clear from the text writers and cases. Thus 
 a failure to comply with the provisions of the English 
 Marriage Acts was always held to avoid the marriage in 
 
 1 Walter's Appeal, 20 P. F. S. 393 ; and see Parker's Appeal, 8 Wr. 310. 
 
VOID AND VOIDABLE MARRIAGES. 19 
 
 toto and ah initio. Want of consent of parents or guardians, 
 want of celebration in some church or chapel, or by a priest 
 in orders, are enumerated by Sir William Blackstone among 
 civil disabilities. A remarkable case, instar omnium, is 
 Haydon v. Gould, 1 Salk. 119, decided in the Court of 
 Delegates, where a marriage by the minister of a dissenting 
 congregation of Sabbatarians was held to be no marriage at 
 all, and after the death of the woman, the man claiming on 
 this ground to be her husband was not allowed .admin- 
 istration on her estate."-^ 
 
 § 9. In Pennsylvania, by the Act of 1705,^ all marriages 
 made within the degrees of consanguinity or affinity accord- 
 ing to the following table are declared to be void, and the 
 governor authorized to grant a divorce from the bonds of 
 matrimony,^ to wit : 
 
 A man may not marry his mother. 
 
 A man may not marry his father's sister. 
 
 A man may not marry his mother's sister. 
 
 A man may not marry his sister. 
 
 A man may not marry his daughter. 
 
 A man may not marry the daughter of his son or daugh- 
 ter. 
 
 A man may not marry his father's wife. 
 
 A man may not marry his son's Wife. 
 
 A man may not marry his son's daughter. 
 
 A man may not marry his wife's daughter. 
 
 ' See 5 Co. 98 b ; Elliot v. Gurr, 2 diction on the Supreme Court to 
 
 Phill. 16, 1 Bl. Com. 434, 435, 2 decree divorce, did not embrace the 
 
 Kent's Com. 82, 95 ; Harrison v. Bur- case of incestuous marriages. It 
 
 well, Vaugh. 206, 2 Vent. 9, s. c. would seem, then, that no power ex- 
 
 ^ 1 Sm. 26. isted in any court to grant divorces 
 
 ' This power of the governor was for such cause until by the Act of 13th 
 
 either repealed or fell with the March, 1815, P. L. 150 (6 Sm. 286), it 
 
 adoption of the Constitution of 1796. was conferred on the Courts of Com- 
 
 The Act of September 19, 1785 (2 mon Pleas: Walter's Appeal, 20 P. 
 
 Smith 343), which conferred juris- F. S. 394, per Sharswood, J. 
 
20 THE LAW OF MARRIED WOMEN. 
 
 A man may not marry the daughter of his wife's son or 
 daughter. 
 
 A woman may not marry her father. 
 
 A woman may not marry her father's brother. 
 
 A woman may not marry her mother's brother. 
 
 A woman may not marry her brother. 
 
 A woman may not marry her son. 
 
 A woman may not marry the son of her son or daughter. 
 
 A woman may not marry her mother's husband. 
 
 A woman may not marry her daughter's husband. 
 
 A woman may not marry her husband's son. 
 
 A woman may not marry the son of her husband's son or 
 daughter. 
 
 This table of degrees is reenacted by the Act of March 
 31, 1860, section 39 (P. L. 393) ; and intermarriages 
 within those degrees are made punishable by fine and im- 
 prisonment, and declared void. By the Act of March 1 3, 
 1815, section 5 (6 Sm. 288),^ all marriages within the degrees 
 of consanguinity or aflBnity according to the table established 
 by law are declared void to all intents and purposes, and 
 the Courts of Common Pleas of the Commonwealth are em- 
 powered to grant divorces from the bonds of matrimony in 
 such cases, and the parties are made liable to the same 
 penalties as are contained in the Act against incest ; but if 
 any such marriage be tiot dissolved in the lifetime of the 
 parties, it cannot be inquired into after the death of either. 
 And this latter provision is not repealed by the thirty-ninth 
 section of the Act of March 31, 1860.^ 
 
 ' The section enacts that, " All mar- parties shall be subject to the like 
 
 riages within the degrees of oonsan- penalties as are contained in the Act 
 
 guinity or affinity, according to the against incest ; but when any of the 
 
 table established by law, are hereby said marriages shall not have been 
 
 declared void to all intents and pur- dissolved during the lifetime of 
 
 poses, and it shall and may be lawful the parties, the unlawfulness of the 
 
 for the Courts of Common Pleas of same shall not be inquired into after 
 
 this Commonwealth, or any of them, the death of either the husband or 
 
 to grant divorces from the bonds of wife." 
 
 matrimony in such cases ; and the ^ Walter's Appeal, 20 P. F. S. 392. 
 
VOID AND VOIDABLE MARRIAGES. 21 
 
 Absence of Consent. 
 
 § 10. Minors under the Age of Consent. — We have seen 
 that the basis of the marriage contract is consent. No per- 
 sons, therefore, are capable of binding themselves in mar- 
 riage until they have arrived at the age of consent; and 
 this, by the common law, is fixed at fourteen in males and 
 twelve in females. The law presumes that at that age the 
 parties have sufficient discretion for such a contract, and 
 they can then bind themselves irrevocably. Marriage 
 before that age is voidable at the election of either party, 
 on arriving at the age of consent, if either of the parties be 
 under that age when the contract is made.^ But, it is said, 
 this rule of reciprocity does not apply to other contracts 
 made by a competent party with an infant, nor even to a 
 promise of marriage per verba de future with an infant, 
 under the age of discretion, the person of full age being 
 absolutely bound, while the contract is voidable at the elec- 
 tion of the infant.^ If either party is under the age of 
 seven years, the marriage is absolutely void.^ 
 
 § 11. Persons of Unsound Mind. — So all persons who 
 have not sufficient use of their understanding to deal with 
 discretion in the common affairs of life, as idiots, and luna- 
 tics (except in their lucid intervals), are incapable of con- 
 sent, and therefore incapable of entering into the marriage 
 contract.* Such marriages are void ab initio.^ 
 
 § 12. Marriage by Force or Fraud. — Upon the same 
 principle, a marriage procured by force or fraud is void ab 
 initio, and may be so treated by every court in which its 
 validity may be incidentally drawn in question. Free 
 
 1 2 Kent's Com. 78 ; Co. Lit. 33 a, M Shars. Bl. Com. 436, note 9. 
 79 b. * 2 Kent's Com. 74. 
 
 2 Kent's Com. 78 ; Holt v. Claren- " Walter's Appeal, 20 P. F. S. 
 cieux, 2 Str. 937. 393. 
 
22 THE LAW OP MARRIED WOMEN. 
 
 assent to the contract is wanting, and the force or fraud 
 which occasions it vitiates this as it does every other con- 
 tract into which it enters.^ And in this State, where a 
 marriage has been procured by fraud, force, or coercion, 
 which has not been subsequently confirmed by the acts of 
 the injured party, a divorce by express statute may be ob- 
 tained.^ 
 
 § 13. ^ Husband or Wife Living. — A person having a 
 husband or wife living cannot marry. The second marriage 
 is, by the common law, absolutely null and void.' By 
 statute in Pennsylvania,* it is not only declared void, but 
 made a misdemeanor punishable by fine and imprisonment, 
 by separate and solitary confinement at labor (a fine not 
 exceeding one thousand dollars, and imprisonment not ex- 
 ceeding two years) . But it is provided, " that if any hus- 
 band or wife, upon any false rumor, in appearance well 
 founded, of the death of the other (when such other has 
 been absent for two whole years), hath married or shall 
 marry again, he or she shall not be liable to the penalties of 
 fine and imprisonment imposed by this Act." By the same 
 Act,^ it is made punishable by fine and imprisonment for an 
 unmarried man or woman to knowingly marry the husband or 
 wife of another person. By the Act of 13th March, 1815, 
 section 1 (6 Sm. 286), it is made a cause of divorce from 
 the bond of matrimony that either a husband or wife has 
 "knowingly entered into a second marriage, in violation of the 
 
 ' 2 Kent's Com. 76; Walter's Ap- man or woman, being unmarried, 
 
 peal, 20. P. F. S. 393. shall knowingly marry the husband 
 
 ^ Act 3d May, 1854, § 1, P. L. or wife of another person, such man 
 
 644. or woman shall, on conviction, be 
 
 ^ 2 Kent's Com. 79 ; Kenley u. Ken- sentenced to pay a fine not exceeding 
 
 ley, 2 Y. 207 ; Heffner v. Heffner, 11 five hundred dollars, and undergo an 
 
 H. 104. imprisonment, by separate and soli- 
 
 * Act 31st March, 1860, \ 34, P. L. tary confinement at labor, not es- 
 
 392. ceeding two years.'' 
 
 ' 2 35, which enacts that " if any 
 
VOID AND VOIDABLE MARRIAGES. 23 
 
 previous vow he or she made to the former wife or husband, 
 whose marriage is still subsisting." And by the Act of 14th 
 April,1859, section 1 (P.L.647),the Courts of Common Pleas 
 are given power to decree such marriage null and void, upon 
 the application of the innocent or injured party. Though 
 such man'iages are declared to be absolutely null and void, 
 it is expedient that their nullity should be ascertained and 
 declared by the decree of a court of competent jurisdiction, 
 in order that all doubts and difficulties as to the facts may 
 be legally determined and conclusively set at rest.^ And, 
 indeed, it would appear to be necessary, for in the case of a 
 second marriage, living the first wife, it seems that the 
 second wife, in a civil proceeding against her husband, in 
 fact, cannot treat her marriage as a nullity, but must first 
 establish this by a civU proceeding.^ It is sufficient, how- 
 ever, to establish the nullity of the second marriage that 
 the party injured shall have prosecuted the offender to con- 
 viction for bigamy.^ 
 
 ' See 2 Kent's Com. 75-77. ^ Harrison v. Harrison, 1 Piiila. 
 
 ^ Griffith V. Smith, 3 P. L. J. 151. 389. 
 
24 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER III. 
 
 RECIPROCAL OBLIGATIONS OF HUSBAND AND WIFE. 
 
 § 14. The husband is bound to receive his wife at his 
 house, and furnish her with all the necessaries and con- 
 veniences which are suitable to his rank and estate, and the 
 condition of the parties in life.^ He is required to fulfil 
 towards her his marital promise of fidelity, and can, there- 
 fore, have no carnal intercourse with any other woman 
 without a violation of his obligations.^ So, on the other 
 hand, the wife is bound to be faithful to her husband, do 
 aU in her power to promote their common interest, and per- 
 form towards him all the marital duties.^ He is the head 
 of the family, and is bound to govern his house properly, 
 and is liable for its misgovernment. He has a right to take 
 up his residence wherever he chooses, without control from 
 his wife, and manage his affairs in his own way ; and the 
 wife is bound to follow him wherever he may think proper 
 to establish himself within the United States, unless by 
 acts of injustice, or such as are contrary to his marital 
 duties, he renders her life or happiness insecure.* 
 
 '1 Bouv. Inst. 115; Cunningham '^ 1 Bouv. Inst. 115. 
 V. Irwin, 7 S. & R. 260 ; Walker v. ' Ibid. 116. 
 Simpson, 7 W. & S. 88. * Ibid. 116. 
 
CONTRACTS OF MARRIED WOMEN. 25 
 
 CHAPTER IV. 
 
 CONTRACTS OF MARRIED WOMEN. 
 
 Contracts hetween Parties who afterwards Intermarry. 
 
 § 15. As a general rule, a contract made between parties 
 who subsequently intermarry is, both at law and in equity, 
 extinguished by the marriage.-' But when articles are 
 entered into, or a settlement executed before marriage, to 
 take effect by the marriage, by which the wife is to have a 
 certain provision in lieu of her fortune, the husband virtu- 
 ally becomes a purchaser of her fortune, and she becomes 
 entitled to her provision, although there may be no inter- 
 vention of trustees, and the contract will be enforced in 
 equity.^ Upon the same principle, where a woman, before 
 marriage, gave a bond to her intended husband, that in case 
 a marriage took effect she would convey to him her estate 
 in fee, and the parties afterwards married, the contract was 
 enforced in equity.^ In an action at law, an ante-nuptial 
 parol agreement that the personal estate of the wife should 
 remain hers after the marriage was held good and binding 
 at the expiration of the coverture, the consideration of 
 marriage being a valuable one.* And it may be laid down 
 as a general rule that when the agreement is such that it 
 cannot create a debt, or raise a demand during coverture, 
 the marriage will not extinguish the agreement.^ 
 
 1 1 Bl. Com. 442. < Gackenbach ». Brouse, 4 W. & S. 
 
 2 Garforth v. Bradley, 2 Ves. Sen. 546. 
 
 675, 677; 4 Bouv. Inst. 270. M Bouv. Inst. 270; Brightly Eq. 
 
 3 Carmel u. Buckle, 2 P. Wms. 243, Jur. I 462. 
 2 Eden 252. 
 
26 THE LAW OF MARRIED WOMEN. 
 
 Contracts between Husband and Wife. Grants and Gifts by 
 Husband to Wife. 
 
 § 16. In the eye of the law husband and wife, for most 
 civil purposes, are but one person.-' During the marriage 
 her legal existence is merged in his.^ Under his protection 
 and cover she acts, and is therefore called, in law-French, 
 a feme covert, and her condition is termed her coverture. 
 Upon this doctrine of a unity of person in husband and 
 wife depend almost all the legal rights, duties, and disa- 
 bilities that either of them acquires by the marriage.^ At 
 law no contract can be made between them without the 
 intervention of trustees. She is considered sub potestate 
 viri, and incapable of contracting with him.* And the Mar- 
 ried Woman's Act of April 11, 1848 (P. L. 536), does not 
 confer such power upon her, nor authorize suits between 
 them.^ Nor does any other act authorize a suit by a hus- 
 band, or his personal representatives, against the wife, upon 
 any contract of hers with him during coverture.® Even a 
 conveyance by the husband to his wife, without the inter- 
 vention of a trustee, is void at law!' Nor can a wife sue 
 her husband, unless authorized by Act of Assembly, even 
 upon an agreement under seal for her separate maintenance.* 
 
 § 17. In courts of equity, although husband and wife 
 are regarded as one person in proper cases, yet in England, 
 and in Pennsylvania (where there are no courts of equity 
 regularly organized as such), courts of law, for many pur- 
 poses, treat the husband and wife as distinct persons, 
 
 1 1 Bl. Com. 442-3 ; Co. Litt. 112. ' Bear's Admr. v. Bear, 9 C. 525. 
 
 ^ Stickney v. Borman, 2 Barr 67 ; ' Bear's Admr. v. Bear, supra. 
 Herr's Appeal, 5 W. & S. 498. ' Lehr v. Beaver, 8 W. & S. 104; 
 
 ' 1 Bl. Com. 442. Stickney v. Borman, 2 Barr 68 ; 
 
 * Button V. Duey, 3 Barr. 105. A Coates v. Gerlach, 8 Wr. 45. 
 married woman may act as agent for * Marshall v. Marshall, 1 Weekly 
 
 another in a contract with her hus- Notes 388. 
 band : Story on Agency, i 7. 
 
CONTRACTS OF MARRIED WOMEN. 27 
 
 capable, in a limited sense, of contracting with each other, 
 of suing each other, and of having separate estates, debts, 
 and interests.^ And in general, post-nuptial contracts, as 
 between the husband and wife themselves, are obligatory in 
 equity.^ Thus before the Act of 1848, if the husband, after 
 marriage, for good reasons contracted with his wife that she 
 should separately possess and enjoy property bequeathed to 
 her, the contract would be upheld in a court of equity.' 
 So, before that Act a wife might acquire separate property 
 from her husband, in equity, by an agreement with him, and 
 without the intervention of trustees.* Indeed, the general 
 principle is recognized in Pennsylvania, without reference 
 to the Act of 1848, that a married woman may acquire 
 separate property in money or chattels, either by gift of a 
 stranger, or her husband, if not made at the expense of 
 creditors.^ And a bond made by a husband to his wife, or 
 to a trustee for her, would be sustained.^ So a contract of 
 indebtedness by a husband to his wife, valid by the laws of 
 the place where made, will be enforced here, upon the death 
 of the husband ; for, though a wife cannot, as a general rule, 
 sue her husband,'' yet she can sue his executors.^ And 
 where a resident of Missouri transferred to a trustee for his 
 wife, under the law of that State, all his household furni- 
 ture, which passed the title to her, and shortly afterwards 
 removed to this State, and contracted debts, in a contest 
 with his creditors, it was held, that as the wife owned the 
 property in Missouri, she would stUl own it after removing 
 
 ' Duffy V. Ins. Co., 8 "W. & S. 432 ; = Rogers v. Fales, 5 Barr 157 ; Keil 
 
 Hutton V. Duey, 3 Barr 105; Coates v. Wolf, 7 Barr 427"; Kutz's Appeal, 
 
 V. Gerlach, 8 Wr. 45 ; William's Ap- 4 Wr. 95. 
 
 peal, 11 Wr. 307 ; Vance v. Nogle, 20 -« Fisher v. Filbert, 6 Barr 66. 
 
 P. F.S. 176; Kutz's Appeal, 4 Wr. 95. 'See Bitter v. Bitter, 7 C. 396; 
 
 '' 4 Bouv. Inst. 270. Kutz's Appeal, 4 Wr. 90 ; Miller v. 
 
 ' Harvey v. Harvey, 1 P. "Wms. 125 ; Miller, 8 Wr. 170. 
 
 Duffy V. Ins. Co., 8 W. & S. 433. « Dougherty v. Snyder, 15 S. & R. 
 
 * M'Kennan v. Phillips, 6 Wh. 571 . 91. 
 See Vance v. Nogle, 20 P. F. S. 176. 
 
28 THE LAW OF MARRIED WOMEN. 
 
 into Pennsylvania, and that creditors could aA^oid her title 
 only by showing that the transaction was a fraud upon 
 them.^ 
 
 § 18. In reference to a gift of money from husband to 
 wife, Gibson, C. J., says : " Such a gift as this would cer- 
 tainly be void at law, for not only is the wife's capacity to 
 contract with her husband extinguished by the merger of 
 her legal existence in his, but as her possession is, in con- 
 templation of law, his possession, she is incapable of receiv- 
 ing from him that delivery and transfer of it which is 
 essential to this species of contract. But where a gift to 
 the wife is reasonable, and not in fraud of creditors, equity 
 sustains it as a provision for her, to which the interposition 
 of a trustee is not indispensable ; yet in consideration of the 
 facility with which evidence of it may be fabricated, rest- 
 ing, as it usually does, on the testimony of witnesses domes- 
 ticated in the family, and tinctured with the prejudices and 
 partialities of its members, a chancellor exacts clear and 
 convincing proof of the act of donation and delivery, followed 
 by the same custody that a wife has of her wardrobe, or 
 the ornaments that belong to her person ; in fine, distinct 
 proof of what would constitute a gift to any one else."^ As 
 respects exclusive possession on the part of the wife, how- 
 ever. Woodward, C. J., in Larkin v. McMullin,^ speaking in 
 regard to a post-nuptial settlement made by the husband 
 to a trustee for the wife of certain furniture and household 
 goods, observes : " That if such settlements cannot be sup- 
 ported without exclusive possession in the wife,' they can- 
 not, in most cases, be supported at all, for it is the very 
 first doctrine of this Court that the wife's possession of 
 
 > Reid V. Grey, 1 Wr. 508. "Wolf, 7 Barr 427 ; Larkin v. McMul- 
 
 2 Herr's Appeal, 5 W. & S. 498. See lin, 13 Wr. 29. 
 
 McKennan v. Phillips, 6 Whart. 571 ; ' 13 Wr. 34. 
 Rogers v. Fales, 5 Barr 157 ; Keil v. 
 
CONTRACTS OF MARRIED WOMEN. 29 
 
 money or goods is that of her husband.^ It must be so, for 
 whilst the marriage relation endures, husband and wife are 
 expected to live together, he as the head of the family, and 
 she as possessed by him ; and he, holding her, necessarily 
 holds her possessions. If exclusive possession of household 
 furniture in the wife be indispensable to support a post-nup- 
 tial settlement of it upon her, it would be a virtual divorce 
 of the parties, and that which was intended for the benefit 
 of the relation would sever and destroy it. A change of 
 possession ordinarily attends a transfer of the title of chat- 
 tels, and therefore the law looks with jealousy upon a trans- 
 fer of title without a corresponding change of possession 
 where such change is possible ; but as between husband and 
 wife, separate possession in the wife is not ordinarily possi- 
 ble, and is not therefore to be expected or required." 
 
 § 19. A court of chancery will lend its aid to sustain a 
 grant from husband to wife, against third parties, where the 
 grant is nothing more than a reasonable provision for her, 
 taking the circumstances of the husband at the time into 
 consideration; or where the transfer to her is hondfide, and 
 for a valuable consideration.^ But either party asking the 
 aid of a court of equity in such case must come into court 
 with clean hands, or equity will refuse to lend assistance to 
 such a grant, or to any agreement between the parties.^ Thus 
 equity will not assist a wife to impoverish her husband ; and 
 it is, accordingly, held that a conveyance to a wife of all or 
 the greater part of a husband's estate is an unreasonable 
 provision, which, if voluntary, a court of equity will not 
 sustain.* Says Strong, J., in Coates v. Gerlach, 8 Wr. 45 : 
 
 1 Topley B. Topley, 7 C. 328 ; Black send v. Maynard, 9 Wr. 198 ; Manuf. 
 V. Nease, 1 Wr. 439. Co. v. Neel, 4 P. F. S. 17. 
 
 '' Stickney v. Borman, 2 Barr 68- 
 Lady Arundel v. Phipps, 10 Ves. 146 
 Morris v. Zeigler, 21 P. F. S. 450 
 Coates V. Gerlach, 8 Wr. 45 : Town- 
 
 ' Stickney v. Borman, supra. 
 * Amnion's Appeal, 13 P. F. S. 289. 
 See Winch v. James, 18 P. F. S. 297. 
 
30 THE LAW OF MARRIED WOMEN. 
 
 " That a deed from a husband directly to his wife is a nul- 
 lity at common law is a doctrine as old as the law itself 
 It results inevitably from the principle that the husband 
 and wife are one, and of course are incapable of contracting 
 with each other. But while all conveyances from a husband 
 to the wife, without the intervention of a trustee, are void 
 at law, and some even when the transfer is made to a 
 ti'ustee for her, it is certain that contracts, even directly 
 between them, will be sustained in equity if they are reason- 
 able, and not prejudicial to creditors. A husband may make 
 a gift to his wife, or a settlement upon her, without the in- 
 tervention of a trustee, and equity will hold it good if it be 
 no more than a reasonable provision for her, be proportioned 
 to his circumstances, and not hurtful to his creditors."^ 
 The mere fact that the husband was indebted at the time of 
 the conveyance to his wife does not of itself render the 
 conveyance fraudulent.^ And the unpaid purchase-money 
 secured by a mortgage on the property conveyed to the wife 
 is not such a debt as would render the conveyance void as 
 to subsequent creditors.^ Where, too, land was conveyed 
 to a married woman whose husband at the time owed no 
 debts, and it did not appear that he was about to enter into 
 any hazardous business, or to contract fresh obligations, and 
 who did no act indicating an intention to defraud creditors, it 
 was held competent for him to settle the land in question upon 
 his wife ; and the fact that he borrowed a sum of money to 
 pay on account of the purchase-money, the lender knowing 
 that the deed was to be executed to the wife, would not 
 render the land liable to pay the debt thus incurred by the 
 husband.* But if an indebtedness to any amount, at the 
 
 1 See Black v. Nease, 1 Wr. 437; 6 Wli. 571 ; Coates v. Gerlach, 8 Wr. 
 
 Herr's Appeal, 5 W. & S.494 ; Rogers 43. 
 
 V. Pales, 5 Barr 154 ; Go£f v. Nuttall, ■n<;elly's Appeal, 26 P. F. S. 232. 
 8 Wr. 78 ; Nippe's Appeal, 25 ^ Williams v. Davis, 19 P. F. S. 27, 
 P.P. S. 472; Manuf. Co. v. Neel, * Thompson u. Thompson, 1 Norris 
 
 4 P. F. S. 17 ; McKennan v. Phillips, 378. 
 
CONTRACTS OF MARRIED WOMEN. 31 
 
 time of the voluntary settlement, be established, it imposes 
 upon those claiming under it the duty of showing solvency 
 of a sufficiency to rebut the presumption that the settle- 
 ment was covinous.-' For if the settlement be made in fraud 
 of creditors, on the eve of a new business, and with a view 
 of providing against its contingencies, it is unavailing against 
 both the new and old creditors, and money so disposed of 
 will be treated as his property and not the wife's.^ 
 
 § 20. A judgment admitted to be unobjectionable in point 
 of honesty, given by a husband to his wife in 1854, to 
 secure her separate estate, would not, in a question of distri- 
 bution, be treated as void in law or equity, because of the 
 legal unity of the parties.^ But there must be some merit- 
 orious or valuable consideration, either before or after mar- 
 riage, to induce the Court to lend its aid to a defective and 
 void conveyance. And it will never lend its aid where the 
 applicant claims through the medium of a fraud.* 
 
 § 21. The assignment of policies of insurance by a debtor 
 who was insolvent when insured, and at the time of assign- 
 ment, in trust for his wife, is fraudulent and void as against 
 creditors ; but it is otherwise as to policies effected without 
 fraud, directly and on their face, for the benefit of the wife, 
 and payable to her. Such policies are not fraudulent as to 
 creditors.^ 
 
 § 22. Where a husband conveyed land to his wife, and a 
 
 judgment was afterwards recovered against him, and assigned 
 
 . to a third person, before the deed was recorded, and there 
 
 ' Woolston's Appeal, 1 P. F. S. Appeal, 1 P. P. S. 452. See Williams 
 
 455. See Thompson v. Dougherty, v. Davis, 19 P. F. S. 29. 
 
 12 S. & R. 455; Black v. Nease, 1 ' William's Appeal. Moore's Estate, 
 
 Wr. 438 ; Coates v. Gerlach, 8 Wr. 11 Wr. 307. 
 
 45. * Stiokney v. Borman, 2 Barr 68. 
 
 2 Black V. Nease, 1 Wr. 438 ; Mul- * Appeal of Elliott's Executors, 14 
 
 len V. Wilson, 8 Wr. 416 ; Woolston's Wr. 75. 
 
32 THE LAW OF MARRIED WOMEN. 
 
 was no fraud in the conveyance, it was held that her title 
 would prevail against the judgment. That, as against 
 creditors of her husband, she was not hound to record her 
 deed, and was, therefore, not estopped from setting up the 
 conveyance to her, by not recording it.-' 
 
 § 23. When a husband takes a joint obligation to himself 
 and wife, for a debt due to himself alone, it is a gift to the 
 wife, who takes as a joint purchaser, and by survivorship, 
 and in her .own right, unless the proceeds should be wanted 
 on a deficiency of assets, for the payment of creditors 
 or perhaps legatees. The remedy is in chancery, which 
 grants relief, because otherwise the husband, by joining 
 his wife in the security, might defraud his creditors.^ So 
 a purchase of real estate at sheriff's- sale by a husband 
 in the name of his wife does not constitute the wife a 
 trustee for the husband where the rights of creditors are 
 not concerned; but the presumption from purchasing in 
 her name is that it was a gift to her by the husband.^ 
 A wife may take anything under the will of her husband, 
 for this cannot take effect untU the coverture is removed by 
 his death.* 
 
 Gift or Loan by Wife to Husband. 
 
 § 24. By the Act of 15th AprU, 1851, section 22, P. L. 
 675,^ married women may loan to their husbands moneys 
 
 ^ Morris v. Zeigler, 21 P. F. S. 450. against the estate of the husband in 
 
 ' Gibson V. Todd, 1 R. 454, per the name of a third person, who shall 
 
 Rogers, J. act as trustee for such married 
 
 ' Bowser v. Bowser, 2 Weekly woman ; and that any such security 
 
 Notes 624. theretofore or thereafter taken, bond 
 
 '■ 1 BI. Com. 442 ; Co. Litt. | 168 ; Jide, to secure such loan, or moneys 
 
 Lehr v. Beaver, 8 W. & S. 104. received by the husband from the pro- 
 
 ' The section provides as follows : ceeds of the real or personal estate of 
 " That it shall and may be lawful for the wife, shall be as good and valid 
 married women to loan to their bus- in law against the estate of the hus- 
 bands moneys being of the separate band as though the same had been 
 estate of the wife, and to take as secu- invested by a trustee appointed by 
 rity therefor a judgment or mortgage the Court." 
 
CONTRACTS OF MARRIED WOMEN. 33 
 
 belonging to their separate estate, and take as security there- 
 for a judgment or mortgage against the husband's estate, in 
 the name of a third person as trustee for the wife ; and if 
 taken bond fide to secure the loan, it is declared to be as 
 good and valid in law against the husband's estate as if in- 
 vested by a trustee appointed by the Court. 
 
 § 25. Prior to the Act of 15th April, 1851, a married 
 woman having separate property secured to her before mar- 
 riage, by marriage settlement, could dispose of the income 
 as she pleased, either by gift or loan, as well to her husband 
 as to a stranger, and if she loaned the money to her hus- 
 band, he was as much bound to repay her as was the stran- 
 ger.^ And so, since as well as before the Act of 1848, she 
 may dispose of her estate by gift or loan, to her husband 
 or to a stranger.^ She may become his creditor by acts and 
 contracts during marriage, and her rights as such will be 
 enforced against him and his representatives. As, for in- 
 stance, if a wife unite with her husband to pledge her 
 estate, or otherwise raise money out of it to pay his debts, 
 or meet any other occasion for his accommodation, whatever 
 may be the mode or form adopted to carry the purpose into 
 effect, the transaction will, in equity, be treated according 
 to the true intent of the parties.^ And where, by a deed of 
 trust, a married woman was given power to mortgage the 
 trust estate for any sums of money she might choose to bor- 
 row on it, "for her own separate use and disposal," she 
 could, in execution of the power, borrow money on mort- 
 gage of the estate for the use of her husband.* And a hus- 
 
 ' Towers v. Hagner, 3 Wh. 56 ; Mann's Appeal, 14 Wr. 375 ; Peiffer 
 
 Hinds' Estate, 5 Wh. 138 ; Kutz's v. Lytle, 8 P. F. S. 386. 
 
 Appeal, 4 Wr. 90 ; Bachman v. Kil- ' See Tate v. Austin, 1 P. Wms. 
 
 linger, 5 P. F. S. 414 ; Sergey's Ap- 264 ; Dufiy v. Ins. Co., 8 W. & S. 
 
 peal, 10 P. F. S. 408; Young's 433. 
 
 Estate, 15 P. F. S. 101. * Hoover v. Samaritan Society, 4 
 
 2 Hinney v. Phillips, 14 Wr. 385 ; Wh. 453. 
 and see Gabrill v. Moyer, 9 Wr. 530 ; 
 3 
 
34 THE LAW OF MAREIED WOMEN. 
 
 band, owning land, and owing his wife money, may convey 
 his land in trust to secure her.-' So if a wife, having a 
 separate estate, enter into a contract with her husband to 
 make him a certain allowance out of the income of such 
 separate estate, for a reasonable consideration, the contract, 
 though void at law, would be enforced in equity.^ 
 
 § 26. Where a husband received part of a sum of money 
 due to his wife from her father's estate, before the passage 
 of the Act of 1848, and the remainder after its passage, 
 appropriating the former to his own use, and the latter, at 
 the instance of his wife, to the fitting up and repair of a 
 house for her benefit and comfort, and that of her family, a 
 subsequent promise by him to repay to her the whole sum 
 could not be enforced against him or his estate after his 
 death. As to the portion received prior to the Act of 1848, 
 the promise would be void for want of parties as well as 
 want of consideration. The money having become his the 
 moment he received it for his own use, there was no con- 
 sideration for the promise ; and there was a want of parties, 
 because before the Act of 1848, he could not have made a 
 contract of the kind with his wife ; and as to the portion 
 received after the passage of the Act, having spent the 
 money for her comfort and benefit, and that of her family, 
 at her request, there was no consideration to support the 
 promise, and it was therefore void as to this portion. Had 
 there been a promise at the time the money was received to 
 repay it, the case would have been different, because, as to 
 the part received prior to the Act of 1848, the promise 
 would have been evidence that the husband did not intend 
 to convert it to his own use, but hold it for his wife ; and 
 as to that received after the passage of the Act, the law 
 presumed that he received the money for her, and the 
 transaction might have been treated as a loan.* 
 
 , ' Peiffer v. Lytle, 8 P. F. S. 386. ^ Johnston v. Johnston, 7 C. 452 ; 
 
 ' More V. Freeman, Bunb. 205 ; s. c, 1 Gr. 469. 
 Duffy V. Ins. Co., 8 W. & S. 433. 
 
CONTRACTS OF MARRIED WOMEN. 35 
 
 § 5?7. Since the Act of 1848, when the husband uses his 
 wife's money with her consent for the benefit of the family, 
 without any agreement on his part to pay interest, he will 
 not, as a general rule', be liable therefor. But if he receives 
 the money for her use, and appropriates it to his own, with- 
 out her permission, in such a case he is liable for interest.'- 
 A wife who has separated herself from her husband without 
 reasonable cause cannot maintain an action against him for 
 her separate property under the Act of 11th April, 1856, 
 section 3 (P. L. 315).' 
 
 Agreements to Live Separate. 
 
 § 28. " It seems to be settled," says Gibson, C. J., " that 
 chancery will not execute an agreement between husband 
 and wife to live separate, because that woxild impair the 
 marital rights of the husband at. the common law, by giving 
 the wife a degree of personal independence which would 
 be inconsistent with her conjugal duties."^ But the rule 
 is now otherwise in Pennsylvania. Such agreements are 
 held to be valid and effectual both at law and in equity, 
 provided their object be actual and immediate, and not a 
 contingent or future separation ; and this though the deed 
 be made between the parties without the intervention of 
 trustees.* And where husband and wife agree to live sepa- 
 rate and apart, the husband covenanting to give a certain 
 portion of his property to a trustee for the use of his wife, 
 and the wife and her trustee covenanting, in consideration 
 thereof, that she would not, at any time thereafter, claim 
 any jointure, dower, or thirds out of his estate, and the 
 husband performed his part of the contract, and the wife in 
 
 1 May V. May, 12 P. P. S. 213 ; < See Cany v. Patton, 2 Ash. 142; 
 
 Mellinger's Adm'r v. Bausman's Lehr v. Beaver, 8 W. & S. 105, per 
 
 Trustee, 9 Wr. 529. Kennedy, J. ; Hutton v. Duey, 3 
 
 ^ May V. May, supra. Barr 104 ; Hitner's Appeal, 4 P. F. 
 
 8 M'Kennan v. Phillips, 6 Wh. 576. S. 114. 
 
36 THE LAW OF MARRIED WOMEN. 
 
 his lifetime contracted a second marriage, it was held that 
 the articles of separation were binding on the wife in 
 equity, and that on the husband's death she was not en- 
 titled to any portion of his estate.^ 
 
 ' Dillinger's Appeal, 11 C. 357. 
 
HOW FAR THE WIFE MAY BIND HER HUSBAND. 37 
 
 CHAPTER V. 
 
 HOW FAR THE WIFE MAY BIND HER HUSBAND BY HER CONTRACTS. 
 
 While Living Together. 
 
 § 29. As a rule the wife can make no contract to bind 
 her husband, whUe they cohabit, without his authority, 
 express or implied.^ To this rule, however, there would 
 seem to be one exception, and that is, where the husband, 
 without the fault of his wife, refuses to provide her with 
 necessaries, or the means of obtaining them, according to 
 his degree and estate. In such case, inasmuch as he is 
 bound by law to provide her with such necessaries, or the 
 means of obtaining them, while she performs her marital 
 duties to him, or does not violate them by adultery or 
 elopement, upon his refusal so to provide, the law holds 
 him liable for his wife's contracts against his express dis- 
 sent, and notice thereof to the party furnishing them.^ His 
 liability in this case is said to arise from an authority or 
 agency implied in law? But it is rather to be regarded as 
 the requirement of the law arising from the marital relation, 
 and the husband's obligation to provide his wife with 
 necessaries, or the means of procuring them.* Before the 
 Act of 11th April, 1848, if the wife contracted for neces- 
 saries, or for goods that went to the use of her husband, 
 the law presumed her to be his agent, and treated the con- 
 tract as his exclusively, and the suit must have been 
 against him alone.^ But by the 8th section of that Act, her 
 separate property, secured to her by section 1st of the Act, 
 
 ' Webster v. M'Ginnis, 5 Binn. 236, 635, per Bayley, J. ; 2 Kent's Com. 
 
 per Yates, J. ; Alexander v. Miller, 146; 2 Smith's L. C, 6th Am. ed. 500. 
 
 4 H. 219 ; Maokinley v. McGregor, ' 2 Smith's L. C, 6th Am. ed. 500. 
 
 8 Wh. 393. * See Ibid. 502. 
 
 2 Montague v. Benedict, 3 B. & C. = Williams v. Coward, 1 Gr. 22. 
 
38 THE LAW OF MARRIED WOMEN. 
 
 is made liable for debts contracted by her for necessaries 
 for the support and maintenance of the family, if, upon ex- 
 ecution against the husband, no property of his be found.-^ 
 While by the Act of 11th April, 1856 (P. L. 315), it is 
 enacted, in reference to the Act of 1848, that "nothing in 
 said Act contained shall be construed to authorize any 
 n\arried woman to contract any debt or liability, so as to 
 make liable her husband or his estate, further than she 
 might have done before the passage of said Act." 
 
 § 30. It is plain that a wife may bind her husband by 
 her contracts, whenever she has his express authority to do 
 so. The questions which arise, therefore, as to his liability 
 upon her contracts, usually relate to her implied authority 
 to contract for him. The law presumes his authority for 
 her contracts, during cohabitation, in many instances : and 
 this presumption arises, in these cases, from the law regarding 
 her as his agent in reference to them, and not from the marital 
 relation merely.^ In such cases he is liable upon her contracts 
 to the extent of her presumed agency. Thus, if the wife be 
 allowed by the husband, as is generally the case, to be house- 
 keeper, and to buy for him, or buy necessary apparel for her- 
 self and family, or goods to carry on a trade conducted by her 
 during her cohabitation with him, his consent is presumed, 
 and in all such cases the contract is with him through the 
 agency of the wife.' But if his dissent be previously made 
 known to the party contracting with the wife, the pre- 
 sumption of consent is rebutted, and consequently, in such 
 
 ' See jposi, p. 47, note 2. books. See 2 Kent's Com. 146, 
 
 ^ Cany v. Patton, 2 Ash. 143, per note («). 
 
 King, P. J.; see 2 Smith's L. C, ' ' Mackinley v. McGregor, 3 Wh. 
 
 6th Am. ed. 500. Mr. Wallace, one 392 ; Spencer v. Tisiie, Add. 319 ; 
 
 of the learned editors of the Amer- Steele v. Thompson, 3 Penna. R. 
 
 ican edition of Smith's Leading 39 : Williams v. Coward, 1 Gr. 21 ; 
 
 Cases, in Law Library, N. S., Vol. Hill v. Sewald, 3 P. P. S. 271 ; Stall 
 
 XXV., says that this case of Cany v. Meek, 20 P. F. S. 182 ; 2 Kent's 
 
 V. Patton is the ablest case on the Com. 146 ; 1 Bl. Com. 442. See Walker 
 
 subject to be found in the American v. Simpson, 7 W. & S. 87. 
 
HOW TAR THE WIFE MAY BIND HER HUSBAND. 39 
 
 case, he would not be liable.-' Cohabitation is presumptive 
 evidence of his assent.^ But when circumstances exist 
 which render his assent irreconcilable with truth or reason, 
 as where the articles furnished as necessaries are altogether 
 extravagant, and beyond the husband's circumstances and 
 degree in life, the law will not infer his assent.^ If, how- 
 ever, the husband, knowing of the contracts of his wife, 
 does not expressly dissent, he is chargeable with her agree- 
 ment ; or if a contract be made by the wife, of which he is 
 afterwards informed, and he acquiesces in it by using the 
 goods, and treating them as his own, he is liable. If he 
 wishes to avoid responsibility, it is his duty expressly to 
 dissent, and, if the goods come into his possession, with a 
 knowledge of the contract, to take the earliest opportunity 
 to return them to the vendor.* If a wife takes up silks and 
 pawns them, before they are made into clothes, the hus- 
 band is not liable for the silks, because they never came to 
 his use ; but it is otherwise if they were made into clothes, 
 and worn by the wife, and then pawned by her.* 
 
 § 31. By universal custom, the wife is the representative 
 of her husband so far as to answer the calls of those who 
 have transactions with him, and to convey to him the nature 
 of their business, or inform them where he may be found ; 
 her declarations, therefore, on such occasions, are competent 
 evidence against him. By analogy, he is to be affected 
 by all acts done or declarations made by her, within the 
 scope of this customary authority ; and in a matter pertain- 
 ing to the domestic economy, he is chargeable with her 
 acts on a presumption, from the very nature of her functions, 
 that she has acted by his authority and with his assent.® 
 
 ' Mackinley v. McGregor, 3 Wh. ■« Mackinleyt). McGregor, 3 Wh. 393. 
 
 392. ° Etherington v. Parrot, 2 Ld. 
 
 2 Montague v. Benedict, 3 B. & C. Raym. 1006, per Holt, C. J. 
 
 635, per Bayley, J. ° Steele v. Tliompson, 3 Penna. R. 
 
 » Cany v. Patton, 2 Ash. 143. 39. See Benford v. Sanner, 4 Wr. 19. 
 
40 THE LAW OF MARRIED WOMEN. 
 
 § 32. An insane man is liable on Ms executed contracts 
 for necessaries, and for merchandise innocently furnished 
 him.^ In such case, or wherever a lunatic is competent to 
 make a contract, his wife, as his agent, is as competent to 
 make it for him ; where, therefore, the wife purchased goods 
 which were not necessaries, but part for resale and part for 
 use in a business which she carried on, it was held that she 
 was acting as her husband's agent, and competent, as such, 
 to contract for him; and if the vendor was ignorant of 
 the husband's insanity, the contract was binding upon the 
 husband.^ But an agreement by the wife of an insane 
 husband for the sale of a crop of wheat belonging to him 
 will not bind him ; while it is true that sudden exigencies 
 may arise which would justify a sale of part of his property 
 for the immediate use of the family. It ought, however, to 
 be a clear case of necessity.'' But a commission of lunacy, 
 and the appointment of a committee to take care of the per- 
 son and estate of the husband, is the proper course.* 
 
 § 33. If a husband makes a sufficient allowance to his 
 wife for necessaries for herself and famUy during his tempo- 
 rary absence, and a tradesman, with notice of this, supplies 
 her with goods upon credit, the husband is not liable, unless 
 the tradesman can show that the allowance was not regu- 
 larly supplied.* And if a tradesman gives credit to the 
 wife for dresses furnished her, the husband is not liable, 
 though the wife lives with him, and he sees her in posses- 
 sion of some of the goods.® But if a husband, knowing that 
 his wife carries on a trade, resides with her and receives 
 the profits, he gives room for a legal presumption that she 
 
 ' Beala v. See, 10 Barr 60 ; La Rue ' Holt v. Brien, 4 Barnw. & Aid. 
 
 V. GilkysoD, 4 Barr 375. 252 ; 2 Kent's Com. 146. 
 
 ^ Ford V. Walker, 1 PMla. 29. See « Bentley v. Griffin, 5 Taunt 356 ; 
 
 2 Smith's L. C, 6tli Am. ed. 501. Metcalfe v. Shaw, 3 Camph. 22 ; 2 
 
 » Alexander v. Miller, 4 H. 218. Kent's Com. 146. 
 
 * Alexander v. Miller, supra. 
 
HOW FAR THE WIFE MAY BIND HEE HUSBAND. 41 
 
 conducts the business as his agent, and he is liable for arti- 
 cles furnished in the course of it ; and payment of money, 
 borrowed by the wife to carry on a business with his con- 
 sent, would be decreed against him. But presumption of 
 his consent will not arise from occasional and stealthy co- 
 habitation.-"^ 
 
 § 34. The husband may be liable, upon a promissory note 
 given by the wife, in her own name, in the course of a busi- 
 ness carried on by her in her own name, with his knowledge 
 and assent, for goods sold to her, if she was, by his implied 
 authority, conducting the business as his agent, under her 
 name, as his business name, and by his implied authority 
 gave the note.^ But where a wife signed a note in her own 
 name, at the husband's request, he promising to see it paid, 
 though expressly refusing to sign it, it was held not to be 
 his note, and that he was not liable for it.^ 
 
 § 35. To render the husband liable for the payment of a 
 note given or endorsed by the wife in the hands of even 
 bond fide endorsees and holders, it should be first shown 
 that it was so given or endorsed with his approbation, or 
 under his authority ; and though the note be given for goods 
 purchased by the wife for the purpose of carrying on her 
 trade or business, it is not sufficient, in order to render him 
 liable upon the note, to show that the wife was engaged in 
 trade, and that she bought the goods on credit for the pur- 
 pose of carrying on her business, with the knowledge of 
 her husband, without any objection to her doing so on his 
 part, or did so even with his express approbation.* " For," 
 says Kennedy, J., as a reason for this, " a husband may be 
 perfectly willing to be answerable for the prices of goods 
 
 1 Jacobs V. Featherstone, 6 W. & S. ' Miller v. Long, 9 Wr. 352. 
 
 349. ' Keakert ii. Sanford, 5 W. & S. 164 ; 
 
 2 Abbott V. Mackinley, 2 Miles 220. Leeds v. Vail, 3 H. 185. 
 
42 THE LAW OP MAERIED WOMEN. 
 
 purchased on credit by his wife, for the purpose of carrying 
 on the business in which she is engaged, as long as it is 
 done in such manner as that he, if she be defrauded or im- 
 posed on in the purchase of the goods, shall not be precluded 
 from showing the fact as a defence against the payment of 
 them. But if he agrees that she shall buy goods on credit 
 and give negotiable bills or notes for the payment of them, 
 he thereby gives up that security or protection which other- 
 wise he could be entitled to claim against frauds that may 
 be practiced on his wife in buying goods, to his great preju- 
 dice. For, the moment that such paper, given by the wife, 
 with his approbation, for the payment of the goods, comes 
 into the hands of bond fide purchasers, in the ordinary course 
 of business, for valuable consideration, the husband becomes 
 absolutely bound for the payment of it at maturity, however 
 fraudulent the transaction may be for or on account of which 
 the paper was given. In a matter, then, of such vast im- 
 portance to the interest of the husband, it never can be pre- 
 sumed, and indeed it never ought to be inferred, on slight 
 grounds, that he has parted with his right to full protection 
 against frauds committed on his wife, that may affect or 
 prejudice his interest."^ 
 
 § 36. A judgment confessed by an attorney-at-law, by 
 authority of a warrant from the wife of an absent debtor, is 
 void as to subsequent judgment-creditors, even though the 
 judgment were ratified and confirmed by the debtor after 
 other judgments were entered against him.^ But a release 
 at bar to husband and wife, to enable the wife to testify, in 
 the absence of the husband may be accepted by the wife.® 
 
 § 37. On the ground of implied agency, a wife may re- 
 ceive payment of a debt due to the husband, unless the 
 
 1 Reakert v. Sanford, 5 W. & S. 168. ' Peaceable v. Keep, 1 Y. 576. 
 
 2 Campbell v. Kent, 3 Pa. R. 72. 
 
HOW FAR THE WIFE MAY BIND HER HUSBAND. 43 
 
 payment be made for the purpose of depriving him of the 
 management of his estate, for then it would be a fraud upon 
 him, and no payment.^ 
 
 § 38. At common law the husband is liable for the debts 
 of his wife contracted before marriage, provided they are 
 recovered from him during their joint lives.^ But by the 
 Act of 11th April, 1848, section 6 (P. L. 536), it is pro- 
 vided that the husband shall not be liable for such debts ; 
 and in Pennsylvania he is no longer bound for them.' 
 
 While Living Apart. 
 
 § 39. Though the husband is bound to provide for his 
 wife in his family, yet, while he is not guilty of any cruelty, 
 and is willing to provide her a home and all reasonable 
 necessaries there according to his degree and estate, he is 
 not bound to furnish them elsewhere. The duties of the 
 wife while cohabiting with her husband form the consider- 
 ation of his liability. All persons supplying the food, lodg- 
 ing and raiment of a married woman living separate from 
 her husband are bound to make inquiries, and they give 
 credit at their peril.* A husband, therefore, is not liable 
 for debts contracted by his wife when they live apart, under 
 a mutual agreement, by which an adequate allowance is 
 made for the separate maintenance of the wife, and the 
 allowance is paid according to the terms of the articles of 
 separation f nor where the articles furnished as necessaries 
 are altogether extravagant and beyond the husband's cir- 
 cumstances and degree in life ; nor where they are furnished 
 
 1 Spencer v. Tisue, Add. 319 ; Wal- = See Glyde v. Keister, 8 C. 88 ; 
 ker V. Simpaon, 7 W. & S. 87. Bear v. Bear, 9 C. 525. 
 
 2 Bout. Inst. 116 ; 1 Bl. Com. 443. * 2 Kent's Com. 147 ; Cany v. Pat 
 See Carl v. Wonder, 5 Watts 97 ; ton, 2 Ash. 140. 
 
 Bneu V. Clark, 2 Barr 236. ' Cany v. Patton, supra. 
 
44 THE LAW OF MARRIED WOMEN. 
 
 after a willful, wicked and unjustifiable separation by the 
 wife from the society of her husband.^ 
 
 § 40. But he is liable for necessaries furnished her 
 during her separation from him, even if the separation be 
 voluntary on both sides, if she offer to return, and he refuses 
 to receive her, and has furnished no means for her subsists 
 ence ; and no agreement of hers would discharge the husband 
 from the expense of supporting her.^ If he abandons her, 
 or turns her away without reasonable or just cause, and 
 without any provision for her maintenance, he becomes 
 liable for her necessaries, and sends credit with her to that 
 extent.^ But the necessaries must be such as are agreeable 
 to the rank and condition of the husband.* He is liable not 
 merely for the difference between the sum earned by her 
 labor and the amount of the expenses necessary for her 
 support, but he must support her himself, or pay those who 
 do support her in a reasonable manner.^ To justify a re- 
 covery against him for goods sold and delivered to his wife 
 while living apart from him, it is necessary to show that the 
 goods were necessaries, and that she had separated from him 
 for good cause.® For anything besides necessaries the hus- 
 band is not liable ; and even for these he is not bound if the 
 wife elopes and lives with another man, at least, where the 
 person furnishing them is aware of her elopementJ So, 
 although the person with whom she elopes is not an adul- 
 terer. The very fact of the elopement and separation is 
 sufficient to put persons on inquiry, and whoever gives the 
 wife credit afterwards, gives it at his peril, and the husband 
 
 • Cany w. Patton, 2 Ash. 143. ■'Cunningham v. Irwin, supra; 
 
 '' Cunningham v. Irwin, 7 S. & R. Breinig v. Meitzler, 11 H. 156; Wal- 
 259. ker v. Simpson, 7 W. & S. 88. 
 
 ■ Walker v. Simpson, 7 W. & S. 
 
 Hultz V. Gibbs, 16 P. F. S. 360 
 
 Cleaver v. Sheetz, 20 P. F. S. 498 
 
 ^ Cunningham v. Irwin, supra. 
 « Breinig v. Meitzler, 11 H. 159. 
 See Cany v. Patton, 2 Ash. 140. 
 
 Cany v. Patton, 2 Ash. 143. ' 1 Bl. Com. 442. 
 
HOW FAR THE WIFE MAY BIND HER HUSBAND. 45 
 
 is not liable unless he receives the wife back again.^ He is 
 not liable for money lent to his wife unless it be done at his 
 request, which request must be averred and shown.^ But 
 where the money lent or advanced has been applied to the 
 payment of necessaries furnished to her, equity will put the 
 party lending or advancing the money in the place of the 
 party who supplied the necessaries.^ 
 
 § 41. The presumptive agency of the wife to contract for 
 necessaries in the name of her husband arises from the 
 marital relation and cohabitation. Where, therefore, they 
 live separate, her presumed authority to charge him, as a 
 general rule, does not exist.* But when a tradesman has 
 given credit to a wife before separation, and the husband 
 has discharged the debt, he continues liable for her engage- 
 ments with that tradesman, after separation, although an 
 adequate settlement has been made upon her by her hus- 
 band, until notice of the separation is given to such trades- 
 man. Her agency in such case is express, and must be 
 held to continue for the same purposes until expressly re- 
 voked.^ 
 
 ' 2 Kent's Com. 147. * See Montague v. Benedict, 3 Barn. 
 
 ^ 2 Kent's Com. 146 ; Walker v. & Cress. 635, per Bayley, J. ; Cany 
 
 Simpson, 7 W. & S. 88. v. Patton, 2 Ash. 145. 
 
 ' Walker v. Simpson, sxipra. ' Cany v. Patton, supra. 
 
46 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER VI. 
 
 husband's liability for the torts, frauds and crimes of 
 
 WIFE. 
 
 § 42. The husband is liable for the torts and frauds of his 
 wife committed during coverture. If committed in his 
 presence, or by his order, he alone is liable. If not, they 
 are jointly liable, and the wife must be joined in the suit 
 with her husband. Where the remedy for the tort is only 
 damages by suit, or a fine, the husband is liable with his 
 wife ; but if the remedy be by imprisonment, on execution, 
 the husband alone is liable to the imprisonment.^ She is 
 not liable for a trespass, or punishable for a crime (except 
 the higher felonies) committed in the presence and with the 
 concurrence of her husband.^ But generally, she is respon- 
 sible for criminal acts.'* And though it is a general pria- 
 ciple, that for the fraud or other tort of a married woman 
 an action lies against her and her husband, yet this is appli- 
 cable only to actions brought for wrongs done by the wife, 
 which are what are sometimes denominated " torts simpli- 
 citer" or torts, the substantial basis of which is not the 
 wife's contract.* The Act of 1848, section 6 (P. L. 5o6), 
 expressly provides that nothing in the Act contained shall 
 be construed to protect the property of a married woman 
 " from levy and execution on any judgment that may be 
 recovered against a husband for the torts of the wife, and in 
 such cases execution shall be first had agaiust the property 
 of the wife." 
 
 ' 2 Kent's Com. 149 ; I Bouv. Inst. » 1 Bouv. Inst. 117 ; 2 Kent's Com. 
 
 116. 149. 
 
 ' M'Clure v. Douthitt, 6 Barr 416 ; < Keen v. Hartman, 12 Wr. 499. 
 1 Bouv. Inst. 117 ; 2 Kent's Com. 149. 
 
HOW FAR SHE MAY BIND HERSELF. 
 
 47 
 
 CHAPTER VII. 
 
 HOW FAR SHE MAT BIND HERSELF OR HER ESTATE BY HER 
 
 CONTRACTS. 
 
 Her Contracts for Necessaries. 
 
 § 43. In general a married woman cannot bind herself by 
 contract. This is a well-established elementary principle. 
 She is incapable, therefore, as a general thing, of contract- 
 ing debts. Her capacity and liability are exceptional 
 cases.^ By the 8th section of the Act of 1848 (P. L. 
 536),^ she is made liable for debts contracted by herself for 
 articles necessary for the support of the family of her hus- 
 band and herself. For these debts suit may be brought 
 against the husband and wife, but after judgment, execution 
 must first issue against the husband alone, and if no property 
 
 iMahon v. Gormley, 12 H. 80; 
 Keene v. Coleman, 3 Wr. 301 ; Wil- 
 liams V. Coward, 1 Gr. 21 ; Grasser v. 
 Eokert, 1 Binn. 575. See also Hert- 
 zog V. Hertzog, 5 C. 465 ; Glidden v. 
 Strupler, 2 P. F. S. 400; Wolbach 
 and ■vrife v. Lehigh B. & L. Associa- 
 tion, 34 Leg. Int. 265. Although a 
 married woman is not personally lia- 
 ble on her covenants and contracts 
 made during coverture, the other 
 party is not, therefore, absolved ; and 
 in such case, vrhere there has been a 
 breach by the other party, ^he hus- 
 band and wife may maintain an ac- 
 tion for the breach : Mansley v. Smith, 
 6 Phila. 223. 
 
 * The section is as follows : " In all 
 cases where debts may be contracted 
 for necessaries for the support and 
 maintenance of the family of any 
 married woman, it shall be lawful for 
 
 the creditor, in such case, to institute 
 suit against the husband and wife for 
 the price of such necessaries, and after 
 obtaining judgment, have an execu- 
 tion against the husband alone ; and 
 if no property of the said husband be 
 found, the officer executing the said 
 writ shall so return, and thereupon 
 an alias execution may be issued, and 
 may be levied upon and satisfied out 
 of the separate property of the wife, 
 secured to her under the provisions of 
 the first section of this Act. Pro- 
 vided, that judgment shall not be ren- 
 dered against the wife, in such joint 
 action, unless it shall have been 
 proved that the debt sued for in such 
 action was contracted by the wife, or 
 incurred for articles necessary for the 
 support of the family of said husband 
 and wife.'' 
 
48 THE LAW OF MARRIED WOMEN. 
 
 of his be found, then an alias execution may be issued, 
 levied and satisfied out of the separate property of the wife 
 secured to her under the first section of the Act. 
 
 § 44. By the proviso in this section it is provided that 
 judgment shall not be rendered against the wife unless it be 
 proved that the debt sued for was " contracted by the wife, 
 or incurred for articles necessary for the support of the 
 family of said husband and wife." But it has been held that 
 the word " or," as here used, is to be read " and," so that 
 before judgment can be recovered against the wife, and 
 levied of her estate, it must be proved that the debt was 
 contracted by her, and incurred for articles necessary for the 
 support of the family.^ And this must be pleaded as well 
 as proved.^ She being herself a member of the family, 
 necessaries for her, of course, will be included.^ It is not 
 sufficient that the debt was contracted by her and her hus- 
 band jointly, but to render her liable it is indispensable 
 that she contract the debt.* But, although the plaintiff 
 must aver and prove that the debt was contracted by the 
 wife alone, it must be under circumstances which render the 
 husband liable also upon the implied assumpsit which arises 
 from his legal obligation to support his family ; and this 
 because the Act requires him to be joined as a substantial 
 party ; and no action will lie against her alone, even for 
 necessaries for their famUy, inasmuch as, upon judgment re- 
 covered, the execution is to be first against him alone, and 
 only against her in case no property of the husband to 
 satisfy the judgment can be found.* She must contract in 
 
 ' Murray v. Keyes, 11 C. 384 ; Miller, 3 Gr. 146 ; Berger v. Clark, 
 
 Parke v. Kleeber, 1 Wr. 251 ; Baer's supra. 
 
 Estate, 10 P. F. S. 430 ; Davidson v. » Davidson v. M'Candlish, 19 P. F. 
 
 M'Candlish, 19 P. F. S. 169 ; Berger S. 172. 
 V. Clark, 29 P. F. S. 340. * Cummings v. Miller, 3 Gr. 146. 
 
 * Murray w. Keyes, supra; Parke ^ Proctor v. Aitken, 6 Phila. 580 ; 
 
 w. Kleeber, 1 Wr. 251 ; Cummings v. Berger v. Clark, 29 P. F. S. 340. 
 
HOW FAR SHE MAY BIND HERSELF. 49 
 
 her own behalf, and the evidence must as clearly prove this 
 as the pleading must aver it.^ The very essence of the 
 transaction is that the creditor furnished the necessaries on 
 her credit ; and if not furnished on her credit there can be 
 no contract on her part to pay for them.^ And every judg- 
 ment against a married woman which does not show on its 
 face her liability is a void judgment.^ In all actions 
 against husband and wife, brought with a view of charging 
 the wife's separate estate, the plaintiff must set forth in his 
 pleadings such facts as bring the case within some of the 
 exceptions contained in the Act ; or otherwise the plea of 
 coverture is a good defence for the wife.* 
 
 § 45. The presumption, when a wife takes up neces- 
 saries for the family of her husband and herself, is, that she 
 is acting as his agent, for on him lies the primary duty 
 of furnishing and paying for them ; and this presumption 
 the evidence must overcome in order to bind her separate 
 estate.^ But she cannot be made liable for necessaries by 
 her subsequent declarations alone. There must be primary 
 evidence of facts tending to raise a contract in her own 
 behalf, in order to bind her separate estate. Her subse- 
 quent declarations may be corroborative, but cannot stand 
 for full proof. This would take away the protection in- 
 tended, not only by the entire spirit of the Act, but 
 of the proviso, where it requires proof that the debt 
 was actually contracted by the wife in her own behalf. 
 This proof, and not a mere acknowledgment, is the criterion 
 of her liability.® 
 
 § 46. It is not necessary, in the action, to prove the 
 husband's insolvency as a condition precedent to recovery. 
 
 ^ Berger u. Clark, sitpra. * Murray v. Keyes, 11 C. 384; 
 
 2 Berger v. Clark, supra. Parke v. Kleeber, 1 Wr. 251. 
 
 ' Swayne ». Lyon, l7 P. F. S. ' Berger v. Clark, supra. 
 441. ' Berger v. Clark, supra. 
 
 4 
 
50 THE LAW OF MAREIED WOMEN. 
 
 This question arises afterwards upon the execution. It is 
 sufficient to support the action, in the first instance, if the con- 
 tract of the wife be declared upon and proA^ed, and that it was 
 for necessaries for the support and maintenance of the family.'^ 
 But in case of recoA^ery the husband's property must be first 
 exhausted, before recourse can be had to that of the wife.^ 
 They must, therefore, not only be sued jointly, but the 
 husband served with the writ, and a judgment against the 
 wife alone would be fruitless and void.^ An attachment 
 execution is an execution within the meaning of this Act, 
 and in a suit against husband and wife, cannot issue against 
 the wife until after an execution against the husband has 
 been returned nulla bona} And where a husband neglects 
 or refuses to provide for his wife, or deserts her, and she 
 has by the Act of 4th May, 1855 (P. L. 430), conferred 
 upon her the rights and privileges secured to a feme sole 
 trader under the Act of 22d February, 1718 (1 Sm. 99), 
 where the debt is contracted by her for necessaries, the 
 execution must first issue against the husband alone, and 
 not against the wife until the execution against him has 
 been returned nulla honaJ' 
 
 § 47. What are family necessaries, is generally a ques- 
 tion for the jury under the circumstances of each particular 
 case ; though, doubtless, the Court may in many cases 
 
 ' Davidson v. MoCandlish, 19 P. F. estate, she is the substantial party 
 
 S. 169; Rigouey v. Neiman, 23 P. P. defendant, and may appeal from an 
 
 S. 332 ; see Bair's Estate, 10 P. P. S. award of arbitrators, without her 
 
 430. husband joining in the appeal: 
 
 ^ Malley v. Dempsey, 3 Leg. Gaz. Murray v. Keyes, 11 Casey 384; see 
 
 225 ; Stites v. Jeffries, 3 Leg. Gaz. 344 ; Sheidle v. Weishlee, 4 H. 134 ; Rang- 
 
 and see Shirtz v. Cleaver, 8 Phila. 3. ler v. Hummel, 1 Wr. 130; Lippin- 
 
 ' Stites V. Jeffries, supra. Where cott v. Hopkins, 7 P. F. S. 328. 
 
 a joint action is brought against hus- * Franklin v. Rush, ] Phila. 571 ; 
 
 band and wife, under the Act of 1848, and see Stites v. Jeffries, supra. 
 
 with a view of charging her separate " Sheitz v. Cleaver, 8 Phila. 3. 
 
HOW FAR SHE MAY BIND HERSELF. 51 
 
 pronounce authoritatively on the question, and withhold it 
 from the jury.'' It is impossible to give a comprehensive 
 definition of them. Thus, in some circumstances, a piano 
 would be necessary for the support of a family ; as where 
 the wife should teach music for a livelihood, or a daughter 
 was to be educated, for education may fairly be included in 
 the word support.^ And there can be no doubt that 
 board and education of children, suitable to their situation 
 in life, are necessaries.' 
 
 § 48. The Act of 1848 is not retrospective as respects 
 the wife's liability for debts contracted by her after mar- 
 riage, and before its passage ; such debts, therefore, cannot 
 be recovered from her. The rights of the parties are to be 
 determined by the law as it stood when the debt was con- 
 tracted.* And the proviso of the sixth section of the Act, 
 which declares that nothing in the Act shall be construed to 
 protecttheproperty of a married woman from liability for debts 
 contracted by herself or in her name, by any person authorized 
 to do so, refers only to debts contracted by her before mar- 
 riage, or afterwards as feme sole trader ; debts for necessaries 
 after her husband has deserted her, or neglected or refused 
 to support her ; and debts contracted for the improvement 
 of her separate estate, where the money has been so ap- 
 plied.^ 
 
 § 49. By the Act of 29th February, 1872, section 1 
 
 (P. L. 21), "All contracts made by married women in the 
 
 purchase of sewing machines for their own use shall be 
 
 valid and binding, without the necessity of the husband 
 
 joining in the same." 
 
 ' Mohney v. Evans, 1 P. F. S. 83 ; * Headley w. Etting, 1 Phila. 39. 
 Parke v. Kleeber, 1 Wr. 251. = Glyde v. Keister, 8 C. 88 ; see 
 
 ' Parke v. Kleeber, 1 Wr. 253. Heugh v. Jones, lb. 433 ; Murphy v. 
 
 5 Reed's Estate, 4 Phila. 375. Bright, 2 Gr. 296. 
 
52 
 
 THE LAW OF MAEEIED WOMEN. 
 
 Dehts Contracted for Repairs and Improvements of her Sepa- 
 rate Estate. 
 § 50. Since the passage of the Act of 1848, a married 
 woman is liable for repairs to her separate estate, made at 
 her request, and necessary for its preservation and enjoy- 
 ment.-^ There is no express statutory provision to this 
 effect, but the liability is the necessary result of the 
 rights of the wife and disabilities of the husband conferred 
 by that Act.^ To what extent she can improve her 
 property, or make extensive and expensive repairs by 
 contracts binding on her, is matter of doubt, but it appears 
 to be settled that she may charge her estates for proper 
 and really necessary repairs.^ And, it seems, may con- 
 
 ' Lippiucott and Wife v. Hopkins, 
 7 P. F. S. 328 ; Lippincott v. Leeds, 
 27 P. F. S. 422. 
 
 ' Lippincott u. Leeds, supra. 
 
 ' Lippincott v. Leeds, supra. 
 
 The capacity of a married woman 
 to contract debts for the improvement 
 of her real estate, or for repairs to it, 
 under the Act of 11th April, 1848, 
 has been the source of considerable 
 discussion, and, seemingly, of much 
 doubt. The Act contains a proviso to 
 f 6, "that nothing in the Act shall be 
 construed to protect the property of 
 any such married woman from lia- 
 bility for debts contracted by herself, 
 or in her name, by any person author- 
 ized so to do, or from levy and execu- 
 tion on any judgment that may be 
 recovered against the husband for the 
 torts of the wife ; and in such cases, 
 execution shall be first had against 
 the property of the wife." In Mahon 
 V. Gormley (12 H. 80), it was said 
 that this provision of the Act applied 
 only to her debts contracted before 
 marriage, to liabilities necessarily in- 
 curi-ed in the management of her 
 estate, for necessaries for the support 
 
 and maintenance of the family, and 
 to her torts. " For these," says 
 Lewis, J., in this case, " her estate is 
 made chargeable either by the terms 
 of the Act; or by necessary implica- 
 tion arising from the rights conferred 
 by it. But beyond these liabilities 
 she stands under the protection of the 
 common law." In Glyde v. Kester 
 (8 Casey 85), Strong, J., says the 
 liability for debts contracted by her- 
 self, mentioned in the proviso, " has 
 reference only to debts contracted by 
 her before marriage, — from liability 
 for which the husband, by the same 
 Act, is exempted, — -and debts con- 
 tracted for necessaries for the support 
 and maintenance of her family." In 
 Heugh V. Jones (8 Casey 432), the 
 Court (Woodward, J.) say of the 
 debts in question, they include "pos- 
 sibly debts contracted for the im- 
 provement of her separate estate, 
 where the money is so applied." But 
 the point was not ruled. In Bear's 
 Adm'r v. Bear (9 Casey 525), it was 
 held (per Strong, J.) that where a 
 husband, at the request of his wife, 
 advanced money towards paying for 
 
HOW FAR SHE MAY BIND HERSELF. 
 
 53 
 
 tract, by her husband, for the erection of buildings on 
 her land.^ 
 
 » Murphy i>. Bright, 3 Gv. 269. 
 
 the erection of houses contracted for 
 by the wife, upon the land of the 
 wife, slie was incompetent to contract 
 with him for its repayment, and was 
 not liable therefor. And the reason- 
 ing of the Court substantially is, that 
 while the Act provides that the pro- 
 perty which shall accrue to any mar- 
 ried woman during coverture, whether 
 by will, descent, deed of conveyance, 
 or otherwise, shall be owned, used, 
 and enjoyed by such married woman 
 as her own separate property ; the 
 ownership, use, and enjoyment spo- 
 ken of, is such as to protect the pro- 
 perty from her husband's creditors, 
 and this by protecting it against him. 
 The Legislature has not .said she 
 shall own it as a feme sole, or use it 
 as a, feme sole, but as her own separate 
 property. She is to own, use, and 
 enjoy it as a married woman, as if the 
 property had been settled to her sole 
 and separate use during her cover- 
 ture. And as before the Act of 1848 
 a married woman having property 
 settled to her separate use was not a 
 feme sole in regard to it, so that 
 she might enter into contracts re- 
 specting it with strangers, or with 
 her husband, which would be ob- 
 ligatory upon her, and enable them 
 to levy upon and sell her separate 
 property, so since that Act she is 
 not a feme sole as to her property, 
 and cannot enter into such contracts 
 so as to be obligatory upon her. In 
 Murphy v. Bright (3 Gr. 296), where 
 the wife, through her husband, had 
 contracted for the erection of build- 
 ings on her lot of ground, and no ex- 
 ception to her liability upon the con- 
 
 tract was taken in the court below, 
 it was held too late to raise the ques- 
 tion in the court above, and a judg- 
 ment against her was affirmed. In 
 Lippiucottu. Hopkins (7 P. P. S. 328), 
 however, it was held that she was 
 liable for a debt contracted by her- 
 self for necessary repairs to her real 
 estate. And this decision was fol- 
 lowed in the District Court for the 
 City and County of Philadelphia, in 
 Lyon u. Swayne (7 Phila. 154). 
 While in Moore v. Connell (18 P. F. 
 S. 320), Sharswood, J., delivering the 
 opinion of the Court, says : "Indeed, 
 the great object of the Act of 1848 
 was to secure the property of a mar- 
 ried woman against her husband and 
 his creditors. It did not confer upon 
 her any power or capacity she did not 
 possess before, except that of making 
 a will, and binding her estate by a 
 contract for necessaries, or, per- 
 haps, — though this, for one, I doubt, — 
 a contract for the repair or improve- 
 ment of her real estate." But in 
 Lippincott v. Leeds (27 P. F. S. 422), 
 the Court say : " It has been held in 
 several cases that a married woman 
 is liable for repairs to her separate 
 estate, made at her request, and 
 necessary for its preservation and 
 enjoyment. The last case is Lippin- 
 cott V. Hopkins (7 P. F. S. 328), and 
 the point is there directly ruled. 
 There is no express statutory provi- 
 sion covering the case ; but this lia- 
 bility is the necessary result of the 
 rights of the wife and disabilities of 
 the husband conferred by the Act of 
 nth April, 1848. Vain would be its 
 enactment, that the property of a 
 
54 THE LAW OF MARRIED WOMEN. 
 
 § 51. But the real estate of a married woman cannot be 
 charged with the debt of her husband on the ground that 
 he had expended a larger sum of his means in improving 
 her real estate, against her will and consent. If it were the 
 very debt incurred in making the improvements, the fact 
 that they were made against her consent would be a suffi- 
 cient defence ; for if a married woman's real estate is to be 
 charged for improvements, they must be such as she author- 
 izes and consents to, and not such as her husband, or any 
 other volunteer, may make against her consent.^ 
 
 Mechanics Liens. 
 
 § 52. A mechanic's lien filed against the husband alone, 
 as owner or reputed owner, for materials furnished in the 
 erection of buildings on a lot described as belonging to him, 
 but which, in point of fact, belonged to his wife, is no lien 
 against the wife's estate ; and under a judgment obtained 
 upon a scire facias upon such lien, nothing can be sold but 
 an estate of the husband's, held in his own right, and upon 
 his own independent title. Even the curtesy interest of 
 the husband in her estate cannot be levied and sold upon 
 the levari facias since the Act of April 1, 1863, section 1 
 (P. L. 212), declaring it to be the true meaning of the Mar- 
 ried Women's Act that no judgment obtained against the 
 husband, before or during marriage, shall bind or be a lien 
 upon her real estate, or upon any interest he may be entitled 
 to therein as tenant by the curtesy. And so before this Act, 
 the curtesy interest of the husband was not liable to sale 
 during the lifetime of the wife, by the Act of April 22, 
 1850, section 20 (P. L. 553), which declares it to be the 
 true meaning of the same Act that the real estate of a mar- 
 married woman shall be owned and manner transferred or enoumbered 
 enjoyed by her as her own separate by him, if she have no power to take 
 property, and shall not be subject to care of it and preserve it from ruin." 
 the debts of her husband, or in any • Barto's Appeal, 5 P. F. S. 392. 
 
HOW FAR SHE MAY BIND HERSELF. 55 
 
 ried woman shall not be subject to execution for any debt 
 against her husband, on account of any interest he may have 
 therein as tenant by the curtesy ; but the same shall be ex- 
 empt from levy or sale for such debt during the life of the 
 wife.-^ 
 
 § 53. If, however, the husband builds upon his wife's 
 land, with her consent, though he contracts for the erection 
 of the building in his own name, the land and premises will 
 be bound by a mechanic's lien, the husband being regarded 
 in law as the agent of the wife for the erection of the build- 
 ing." But she should be named as owner in a lien in order 
 to bind her estate, for if filed against the husband alone, 
 as owner and contractor, without referring to the wife, or 
 making her a party to the record, it is not a lien against 
 her estate.^ It must be filed against her and her husband, 
 and indicate that he is her husband, or that she is his wife, 
 by setting forth the fact of coverture ; and must also set 
 forth that the work and materials were done and furnished 
 for and about the improvement of her separate estate,'' as 
 it must appear affirmatively that the debt was contracted, 
 not only with the intent to apply the proceeds thereof to 
 such improvement, but that they were actually so applied ; 
 and that the work was done, and the material furnished, at 
 the request, or on the contract, or upon the authority, and 
 with the consent, of the wife f for it is clear that the wife's 
 property is not subject to a lien for work done and materials 
 furnished in its improvement or repair, upon a contract with 
 the husband, unless it is made with her authority. The 
 husband cannot, by any act of his, encumber the wife's pro- 
 
 ' Woodward v. Wilson, 18 P. F. S. * SohrifFer v. Saum, 31 P. F. S. 385 ; 
 
 210. Dearie v. Martin, 28 P. F. S. 56; 
 
 2 Forrester v. Preston, 2 Pitts. 298. Heugh v. Jones, 8 C. 432. 
 
 » Finley's Appeal, 17 P. F. S. 453. '■ Lloyd v. Hibbs, 31 P. F. S. 306 ; 
 
 See Forrester v. Preston, 2 Pitts. 298 ; Dearie v. Martin, 28 P. F. S. 56. See 
 
 Hutchinson v. Preston, Ibid. 303. Allen v. Graham, 34 Leg. Int. 58. 
 
56 THE LAW OF MARRIED WOMEN. 
 
 perty without her consent, even for the purpose of making 
 necessary repairs.^ The claim itself must show that the pro- 
 perty is the wife's, and that the repairs were done by her 
 authority ; in fine, it must appear from the record that the 
 debt charged is within the letter or spirit of some one of 
 the exceptions of the Act of 1848 f and if it does not, the 
 defect cannot be remedied by the pleadings,^ nor by the 
 proof.* Nor can the claim be amended after the statutory 
 period for filing it has elapsed f but it may be before." 
 
 Cannot Execute Writings Obligatory, or other Personal 
 Ohligations. 
 
 § 54. A married woman is incompetent to execute a 
 writing obligatory, or other personal obligation, that will 
 bind herself or her representatives. And in Pennsylvania 
 this rule has not been relaxed in relation to such w^ritings or 
 obligations executed for the payment of money, or the per- 
 formance of any other act.' A bond and warrant of attorney 
 to confess judgment thereon, executed by a married woman, 
 even though her husband join therein, are, therefore, not 
 merely voidable, as to her, as a personal obligation, but 
 absolutely void in law ;* so completely so, that a sale of her 
 real estate under a judgment entered by virtue of the war- 
 
 ' Dearie v. Martin, 28 P. F. S. 57. * Dorrance v. Scott, 3 Wh. 309 ; 
 
 ^ Schriffer u. Saum, 31 P. F. S. 388. Caldwell v. Walters, supra ; Glyde v. 
 
 ' Dearie v. Martin, supra. Keister, supra; Keen v. Coleman 
 
 ' Lloyd V. Hibbs, 31 P. F. S. 309. supra; Keeper v. Helfricker, 6 Wr.' 
 
 ' Dearie w. Martin, supra. 325 ; .Steinman v. Swing, 7 Wr. 63 ; 
 
 « SehriiTer v. Saum, 31 P. F. S. 385. Graham v. Long, 15 P. F. S. 383 ; 
 
 ' Caldwell n. Walters, 6 H. 79 ; Kamborger «. Ingraham, 2 Wr. 146 ; 
 
 Glyde v. Keister, 8 C. 85 ; s. c, 1 Gr. Heacook v. Fly, 2 H. 540 ; Finley's 
 
 465; Keen v. Coleman, 3 Wr. 301; Appeal, 17 P. F. S. 454; Shallcross 
 
 Pettit V. Fretz, 9 C. 118; Brunner's v. Smith, 31 P. F. S. 132; Sawtelle's 
 
 Appeal, 11 Wr. 67; Gliddon u. Strup- Appeal, 34 Leg. Int. 349. But the 
 
 ler, 2 P. F. S. 400 ; Morr's Appeal, bond and warrant are valid as against 
 
 30 P. F. S. 427 ; Heiss v. Davidson, the husband : Shallcross v. Smith, 
 
 1 Weekly Notes 221 ; Wallace v. supra. 
 Gibbs, I Weekly Notes 446. 
 
HOW FAR SHE MAY BIND HERSELF. 57 
 
 rant of attorney upon the bond would not divest her title.^ 
 And such judgment-bond is void though given for a debt 
 contracted for the improvement of her real estate.^ And 
 so a judgment recovered in a scire facias upon a judgment 
 entered upon such a bond and warrant would be void as to 
 her, and no lien upon her lands.^ Neither can she enter 
 into a valid recognizance as bail for her husband.* And in 
 an action against a married woman on a promissory note, it is 
 sufficient to allege, in the affidavit of defence, the coverture, 
 and that the note was not given for necessaries.^ When, 
 therefore, one goes on a note or bond, either as principal or 
 surety, with a married woman, he is the only party bound, 
 and her name may be stricken out." 
 
 § 55. While a debt incurred by a married woman for 
 necessaries for the support and maintenance of her family, 
 and those contracted before marriage, are valid, yet her 
 bond given in satisfaction of such a debt is not.' By 
 statute, however, a married woman may give refunding bonds, 
 and other necessary instruments, on receiving a legacy or 
 distributive share of an estate, it being provided by the Act 
 of April 11, 1866, section 4 (P. L. 315), that " whenever any 
 married woman of lawful age shall be entitled to a legacy, 
 or to a distributive share of the personal estate, or of the 
 proceeds of the real estate of a deceased person, it shall be 
 competent for her, either in person or by attorney, to sign, 
 seal and deliver a refunding bond, in pursuance of the Act 
 of Assembly in such case made and provided, and also to 
 execute all such other instruments, and to perform all such 
 other acts, as may by law be necessary to be done, or may 
 
 ' Caldwell v. Walters, 6 H. 79. See * Bennet v. Smith, 3 Am. L. J. 138. 
 
 also Keen v. Coleman, 3 Wr. 301. = ImhofPi). Brown, 6 C. 506. 
 
 ' Brunner's Appeal, 11 Wr. 67. ' Unangst v. Fitler, 34 Leg. Int. 
 
 '^ Dorranoe v. Soott, 3 Wh. 309. See 331. 
 
 Glyde v. Keister, 8 C. 85 ; s. c, 1 Gr. ' Glyde v. Keister, 8 C. 85 ; s. c, 1 
 
 465. Gr. 465. 
 
58 THE LAW OF MARRIED WOMEN. 
 
 be lawfully req^uired by the executor or administrator, upon 
 the payment to her of the moneys to be distributed as afore- 
 said, with the same effect, for the intent and purpose of 
 binding her separate estate, as if she were sole and unmar- 
 ried." But this Act does not enable a married woman to 
 execute an assignment of her share in a decedent's personal 
 estate to the administrators and next of kin, with cove- 
 nants.^ 
 
 § 56. A married woman having no legal power to execute 
 a judgment bond, should she, nevertheless, actually execute 
 one, it would not be made good by the fact that she repre- 
 sented at the time she gave it that she was single, whereby 
 she obtained the consideration for which it was given ; nor 
 would she be estopped by her representations from setting 
 up her coA-erture as a defence to the bond.^ So, wherever 
 her contract is absolutely void, her confession of judgment 
 in open court, or elsewhere, upon it, cannot give it validity.^ 
 But if the record shows a proceeding against her on a con- 
 tract for the improvement and repair of her separate estate, 
 it may be that she would be concluded, by such confession, 
 because she could not contradict the record, but only be- 
 cause of that rule of evidence.* In Jermon v. Lyon,^ an 
 action was brought against husband and wife for work done 
 and materials furnished in the improvement of her separate 
 estate ; the first count charging that she was indebted ; and 
 the remaining counts that both were indebted and assumed 
 to pay. Judgment was confessed in open court in favor of 
 the plaintiff, the wife's land sold under this judgment, and 
 it was held that while the judgment was erroneous, and 
 might have been reversed upon a writ of error, this would 
 not destroy the sheriff's sale made under the judgment 
 while standing in full force and unreversed. 
 
 ' Buchanan v. Buchanan, 10 Wr. ' Swayne v. Lyon, 17 P. F. S. ■442. 
 186, * Swayne u. Lyon, supra. 
 
 2 Keen v. Coleman, 3 Wr. 299. ^ 31 p_ j, g, io7. 
 
HOW FAR SHE MAY BIND HERSELF. 59 
 
 Her Capacity to Contract for Payment of the Purchase-3Ioney 
 of Real Estate Purchased by her. 
 
 § 57. The power of a married woman to purchase gives 
 to her, necessarily, a right to contract for the payment of 
 the consideration-money, so far as to charge the land with 
 such incumbrances as may be agreed upon to secure its 
 payment ; and her own judgment bond given for this pur- 
 pose is, therefore, not void on the ground of coverture, and 
 a judgment entered upon it will bind the property pur- 
 chased, though invalid as a personal obligation.-^ The 
 validity of a married woman's judgment bond in this excep- 
 tional case is not dependent upon anything contained in the 
 Act of 1848. That Act gave her no power to purchase 
 land which she had not before, and consequently made no 
 provision for securing the purchase-money. It is settled, 
 however, that she has power to confess a valid judgment in 
 this one case." Where, however, prior to the Act of 1848, 
 a conveyance of land was executed to a trustee for the sole 
 and separate use of a married woman, and she alone exe- 
 cuted a bond and mortgage of the premises for a balance of 
 the purchase-money, both parties supposing the mortgage 
 to be a lien, it was held that the bond and mortgage were 
 void, that equity would rescind the whole contract, and the 
 vendor might recover the land on repaying to the married 
 woman the pai't of the purchase-money paid by her.^ 
 
 § 58. Where real estate, against which there was a judg- 
 ment lien in favor of a third party, was sold and conveyed 
 to a married woman, and as part of the transaction, the third 
 party took a judgment note of the married woman in satis- 
 faction of the judgment lien, it was held that the judgment 
 
 1 Patterson v. Robinson, 1 C. 81 ; Fly, 2 H. 542 ; Sawtelle's Appeal, 34 
 
 Eamborger's Admr. v. Ingraham, 2 Leg. Inst. 349. 
 
 Wr. 146 ; Brunner's Appeal, 11 Wr. ^ Brunner's Appeal, supra. 
 
 73, per Strong, J. See Ileacook v. ' Heacock v. Ply, 2 H. 540. 
 
60 THE LAW OF MARRIED WOMEN. 
 
 note was invalid, as being a new security given by a married 
 woman, in lieu of the existing one ; in other words, that the 
 third party loaned her the money to pay off the existing 
 encumbrance, and took a new security. Had the security 
 been given to the vendor in pursuance of a condition of the 
 contract of sale, the law would have been otherwise.-^ But 
 an agreement of a married woman and her husband for the 
 revival of a judgment entered on her bond and warrant of 
 attorney to confess judgment given before her marriage, but 
 entered afterwards, is good. This is not the creation of a 
 new liability, and is, therefore, unlike an agreement to con- 
 fess an original judgment. While she cannot confess an 
 original judgment, say the Court, she can acknowledge a 
 revival of one already in existence.^ But the cases in 
 which married women are permitted to bind their separate 
 property are exceptions to the general rule of sound policy, 
 and ought to be strictly confined within the limits pre- 
 scribed.^ 
 
 Her Capacity to Sell and Convey on Mortgage her Real 
 
 Estate. 
 
 § 59. Whenever the law permits a married woman to act 
 in relation to her estate, she acts as proprietor and may ex- 
 ercise the rights of one. She has a right by law to sell 
 her estate, with the consent of her husband, provided there 
 is no coercion. To secure the one, and at the same time to 
 guard against the other, she is required to unite with him 
 in the execution of the conveyance, and to separate from 
 him in the acknowledgment of it. If she exercises, in this 
 form, her right to sell, she may dispose of her estate upon 
 such terms and conditions as she deems most advisable. 
 She may, therefore, sell or mortgage it for her husband's 
 
 'Sohlosser's Appeal, 8P. F. S.494. » Schlosser's Appeal, 8 P. F. S. 
 ' Brunner's Appeal, 11 Wr. 75. 495. 
 
HOW FAR SHE MAY BIND HERSELF. 61 
 
 debts, for a mortgage is but a sale on condition.-^ So she 
 may mortgage it to secure his future as well as his present 
 indebtedness.^ And for the same reason, she may prescribe 
 such terms and waive such privileges as she thinks proper 
 to prescribe or waive, so long as her acts are essentially a 
 part of the contract of sale, and bind nothing but the pro- 
 perty sold.^ Thus in a mortgage of her separate real 
 estate for her husband's debt, she may covenant that a 
 writ of scire facias may immediately issue on default of 
 payment of the mortgage debt.* So she may covenant in 
 a bond and mortgage given for the purchase money of real 
 estate, that on default for a prescribed time in paying the 
 interest, the principal could be collected as if fuUy due.* 
 And land may be conveyed to a married woman, reserving 
 a ground rent, and she takes the land subject to the pay- 
 ment of the rent.* But in a mortgage of her property for 
 her husband's debt, she cannot bind it for the payment of 
 the expenses of collecting.' 
 
 § 60. By reason of a married woman's inability, as a 
 general rule, to contract, she is incapable of incurring 
 the liabilities she undertakes to assume by becoming a 
 member of a building and loan association, such as the 
 
 ' Patterson v. Robinson, 1 C. 81, the wife, secured to her by marriage 
 
 per Lewis, C. J. ; Evans v. Mylert, 7 articles not recorded, is invalid 
 
 H. 402 ; Black v. Galway, 12 H. 18 ; against the wife and her heirs, as to 
 
 Lytle's Appeal, 12 0. 131 ; Magaw v. a mortgagee having actual notice of 
 
 Stevenson, 1 Gr. 402; Jamison v. the marriage articles: MoCuUough u. 
 
 Jamison, 3 Wh. 457 ; Juniata B. & Wilson, 9 H. 436. 
 
 L. Association v. Mixell and wife, ' Haffey v. Casy, 23 P. F. S. 431. 
 
 34 Leg. Int. 266 ; Sheidle v. Weish- ' Patterson v. Robinson, supra, per 
 
 lee, 4 H. 134. But she cannot mort Lewis, C. J. 
 
 gage an expectancy, certainly not ' Black v. Galway, supra. 
 
 without a valuable consideration, and ^ Glass v. Warwick, 4 Wr. 140 ; 
 
 the antecedent debt of the husband see Bortz v. Bortz, 12 Wr. 382. 
 
 would not be such : Bayler v. Com., « Cowton v. Wickersham, 4 P. F. 
 
 4 Wr. 37. And a mortgage by hus- S. 302. 
 
 band and wife of the separate estate of ' Magaw v. Stevenson, 1 Gr. 402. 
 
62 THE LAW OF MARRIED WOMEN. 
 
 payment of fines, bonus upon loans, dues, &c., and interest 
 on these ; hence, should she, as a member of such an asso- 
 ciation, borrow money from it, and, with her husband, 
 mortgage her separate property to secure payment not 
 only of the money borrowed, but the fines, &c., also, her 
 property would be liable under the mortgage only for the 
 money actually received by her, and interest thereon, less 
 any payments made by her on account.^ But as the husband 
 is capable of incurring the liabilities in question, a mortgage 
 executed by himself and his wife of her separate estate, to 
 secure his debt to an association of this kind, including 
 therein premiums, fines, interest on premiums, &c., is a 
 valid mortgage for the whole amount.^ 
 
 § 61. A married woman who has joined with her hus- 
 band in a mortgage of her separate estate may preclude 
 herself from taking advantage of the defect in a defective 
 judgment entered upon the mortgage (if not incurably de- 
 fective), by acting with her husband in procuring another 
 to buy the judgment for her benefit.^ And where a mar- 
 ried woman, a few days after her marriage, executed a 
 bond and mortgage in her maiden name, without joinder of 
 her husband, and a judgment was recovered upon the mort- 
 gage, upon two nihils returned to two scire faciases, under 
 the Act of 1705, a levari facias issued upon the judgment, 
 and the premises sold and conveyed thereunder, by the 
 sheriff, to a purchaser who had no notice that the mortgagor 
 was a married woman, it was held that although the bond and 
 mortgage were void, and could have been defended against, 
 yet the judgment and proceedings upon the mortgage could 
 not be impeached collaterally. That in practice the effect of 
 two nihils is considered equivalent to a garnishment, or a return 
 
 ' Wohlbach and wife v. Lehigh ^ The Juniata B. & L. Association 
 B. & L. Association, 34 Leg. Int. v. Mixell and wife, 34 Leg. Int. 266. 
 265. " McCullough v. Wilson, 9 H. 436. 
 
HOW FAR SHE MAY BIND HEKSELF. 63 
 
 of scire feci by the sheriff; the mortgage having been per- 
 mitted to ripen into an unquestioned judgment, was merged 
 in the judgment, and was no longer open to attack; and the 
 Court say that " these proceedings upon mortgage under the 
 Act of 1705 are to be distinguished from judgments on 
 bonds against married women, which was the case of Dorrance 
 V. Scott, 3 Wh. 309, and of Caldwell v. Walters, 6 Harris 79, 
 and also from cases of which Knox v. Flack, 10 Harris 337, 
 is a type. These were proceedings purely in personam, where 
 the disability appeared of record, and in Caldwell v. Wal- 
 ters, the purchaser had notice of this disability, but here 
 the proceeding was principally in rem, and the record im- 
 puted no disability of the only person sued."-^ And where 
 land was conveyed to the wife, she borrowing part of the 
 purchase money from a third party, and giving him a mort- 
 gage upon the premises, in which the husband did not join, 
 to secure it, and the mortgagee recovered a judgment upon 
 the mortgage, but the land was sold upon a municipal claim 
 against both husband and wife, it was held that though the 
 mortgage of the wife was void, the judgment in the scire 
 facias upon it conclusively established its execution, and 
 the mortgagee was entitled on the Judgment to be paid out 
 of the fund ; that the mortgage merged ia the judgment, 
 and though void, could not be collaterally impeached, ex- 
 cept for fraud, but could have been set aside at the in- 
 stance of the wife, in a proceeding for that purpose.'^ So 
 where a mortgage given by a married woman was defec- 
 tively acknowledged, but she and her husband, being served 
 with a scire facias thereon, suffered judgment by default, on 
 which execution issued, and the mortgaged premises were sold 
 by the sheriff and a deed delivered to the purchaser without 
 remonstrance, it was held that she could not take advantage 
 of the defect, and was concluded by the judgment;* 
 
 ' Hartmann v. Ogborn, 4 P. F. S. " Butterfield's Ap., 27 P. F. S. 197. 
 122. " Ross ;;. Lynch, 2 Pitts. R. 472. 
 
64 THE LAW OF MARRIED WOMEN. 
 
 § 62. Where a mortgage of the wife's estate is given for the 
 husband's debt, this places her in the position of a surety, 
 and as such she is entitled to exact good faith from all the 
 parties. It will not be enough to show that the husband 
 was not misled, or even that he was cognizant of the decep- 
 tion practiced on his wife. The question is, did the cred- 
 itor say or do anything tending to mislead her on a point 
 material to the transaction ? If this appears, it will be a 
 defence to the mortgage, so far as she is concerned, although 
 it may fail as regards the husband.^ So, where the wife 
 joins with her husband in a mortgage of her property as 
 well as his own, to secure his debt, she is entitled to all the 
 rights of a surety as against her husband ; she may insist 
 on the sale of his mortgaged property to pay the debt, before 
 resorting to her property included in the mortgage ; and if 
 she is compelled to pay the debt, or any part of it, she is 
 entitled to subrogation fro tanto, and may enforce the mort- 
 gage against her husband's property.^ 
 
 Mat/ Take Property hy Purchase. 
 
 § 63. A married woman may take property by purchase, 
 with the assent of her husband.^ The verbal assignment of 
 bonds to a married woman as collateral security, with the 
 assent of her husband, is good.* A lease to a married 
 woman is good, unless the husband dissents.^ A wife may 
 purchase land without her husband's assent, though he may 
 divest her estate by disagreeing to the purchase, the title in 
 the meantime remaining in her.° The title will vest in her 
 by a conveyance of land, though encumbered with a condi- 
 
 ' Hammit v. Bull, per Hare, P. J., Cowton u.Wickersham, 4P.F. S. 302; 
 
 8 Phila. 29. Winch v. James, 18 P. F. S. 297. 
 
 ^ Sheidle v. Weishlee, 4 H. 137. ■• Walkei- v. Coover, supra. 
 
 See Miner v. Graham, 12 H. 491. » Baxter «. Smith, 6 Binn. 427. 
 
 ^ Walker v. Coover, 15 P. F. S. 433 ; « Hileman ■o. Bouslaugh, 1 H. 355. 
 
HOW FAR SHE MAY BIND HERSELF. 65 
 
 tion.'' And if a deed be made to her, and a note taken for 
 the purchase-money, the deed is not void though the note 
 be irrecoverable.^ 
 
 Her Capacity to Alien and Transfer her Personal Property. 
 
 § 64. A married woman may give her money or other 
 property to her husband f but cannot give it to a stranger 
 without the knowledge of her husband, or against his con- 
 sent.* She can sell her personal property only through her 
 husband,*^ or by his joining in the transfer, in which case 
 no acknowledgment is necessary.* The Act of 1848, sec- 
 tion 6,' provides as to her property, real and personal, that 
 it shall not be sold, conveyed or encumbered, by her husband, 
 without her written consent first obtained and duly acknowl- 
 edged. But this provision has no application to the transfer 
 of either real or personal estate of the wife, when the hus- 
 band and wife unite in the transfer, but the law remains as 
 it stood prior to the Act.^ By the Act of June 2, 1871 
 (P. L. 283), a married woman is enabled to sell and transfer 
 her shares of the capital stock of any railroad company, 
 as if she were unmarried; by the Act of April 1, 1874 
 (P. L. 49), as amended by that of March 18, 1875 (P. L. 
 24), she is empowered to sell and transfer loans of this State, 
 or of the City of Philadelphia, or loans or shares of the capi- 
 tal stock of any corporation created by or under the laws of 
 this State, as if unmarried ; and by the Act of May 15, 1874 
 (P. L. 193), she may draw checks upon a bank.* 
 
 1 Bortz V. Bortz, 12 Wr. 382 ; Vance Ibid. 530 ; Bergey's Appeal, 10 P. F. S. 
 V. Nogle, 20 P. F. S. 176. 408. 
 
 2 Grove v. Hodges, 5 P. F. S. 507. * Keen ». City, supra. 
 ' Keen v. City, 8 Phila. 49. See ' Keen v. City, supra. 
 
 Sowers V. Hagner, 3 Wh. 48 ; McGlin- ° Bond v. Bunting, 1 Weekly Notes 
 
 sey's Appeal, 14 S. & R. 66 ; Neglee 439. 
 
 V. Ingersoll, 7 Barr 204; Johnston v. ' See the section, ^o«<, p. 79, n. 3. 
 
 Johnston, 7 C. 450 ; MiUinger v. Bans- ' Haffey v. Carey, 23 P. F. S. 433. 
 
 man, 9 Wr. 522 ; Grahille v. Moyer, ' See these Acts in Appendix. 
 5 
 
66 THE LAW OF MARRIED WOMEN, 
 
 Her Capacity to Convey her Real Estate. 
 
 § 65. A married woman cannot convey her real estate 
 by deed in which the husband does not join. It is only 
 under the Act of 1770 (1 Sm. 307) she can convey her real 
 estate by deed, and this must be by a joint deed with her 
 husband, executed and acknowledged as therein prescribed. 
 This Act is not repealed by that of 11th April, 1848, and 
 the latter does not enable her to convey by her own deed 
 without the joinder of the husband.^ And the law is the 
 same as to a mortgage of her real estate. She cannot mort- 
 gage it without joinder of the husband, and acknowledg- 
 ment, as in the case of a conveyance.^ So, the assignment 
 of her mortgage without her husband joining, or without 
 acknowledgment as required by the Act of 1848, is void.* 
 She cannot release railroad damages without her husband 
 joining in the release.^ And a release of dower by her with- 
 out joinder by her husband is void, though the deed be sepa- 
 ratel}^ acknowledged in due form.^ A mortgage of the wife's 
 land by husband and wife, without acknowledgment, before 
 the Act of 1848 bound the land only during the life of the 
 husband, though proved by one of the subscribing witnesses.^ 
 
 'West V. West, 10 S. & R. 446; » James v. Lyon, 3 Y. 471; Hea- 
 
 Leland's Appeal, 1 H. 85; Trimmer cook u. Fly, 2 H. 540; Stoops v. 
 
 u. Heagy, 4 H. 484; Willing U.Peters, Blackford, 3 C. 213. 
 
 7 Barr 287 ; James v. Everley, 3 Gr. * Moore v. Cornell, 18 P. F. S. 320; 
 
 150; Glidden v. Strupler, 2 P. F. S. Stoops v. Blackford, 3 C. 218. Before 
 
 400 ; Graham v. Long, 15 P. P. S. 386. the Act of 1848, it was well settled 
 
 ''■ Peck V. Ward, 6 H. 506 ; Dip v. that the husband could by an assign- 
 Campbell, 7 IL 361 ; Glyde v. Keis- ment for a valuable consideration, 
 ter, 8 C. 88; Shinn v. Holmes, 1 C. without the assent of his wife, transfer 
 142 ; Thorndell v. Morrison, 1 C. his wife's choses in action, including 
 326 ; Stoops V. Blackford, 3 C. 218 ; mortgagee, and thereby bar the right 
 Richards v. McClelland, 5 C. 385 ; if she survived him : Moore v. Cornell, 
 Pettit V. Fretz, 9 C. 118; Dunham supra. 
 
 V. Wright, 3 P. F. S. 167 ; Graham v. = Railroad v. Burson, 11 P. F. S. 
 
 Long, 15 P. F. S. 383; Ilouok v. 369. 
 
 Ritter, 26 P. P. S. 280 ; Haines v. « Willing v. Peters, 7 Barr 287. 
 
 Ellis, 12 H. 255. ' James v. Lyon, supra. 
 
HOW FAR SHE MAY BIND HERSELF. 67 
 
 § 66. Where the entire language of a deed was that of 
 the wife alone, but the husband signed and sealed it with 
 her, and acknowledged it to be his act and deed, to the end 
 that it might be recorded as such, he adopted all that was 
 before his signature, and the purpose of the law was fulfilled. 
 The essential thought of a husband's joinder with his wife 
 in a conveyance of her estate is his consent to her act, and 
 his sealing and signature to the deed, duly acknowledged as 
 his act and deed, fully supply the evidence of this consent.-"^ 
 
 § 67. That the husband has deserted the wife, without 
 providing for her support, and that the proceeds of the sale 
 were necessary to, and were used for, her maintenance, can- 
 not make good her separate deed, or prevent the husband 
 from asserting his right to the possession of the real estate 
 as against the purchaser.^ And she cannot execute a lease 
 in conjunction with her husband without an acknowledg- 
 ment as required by the Act of 1770.^ She may, under the 
 6th section of the Act of 1848, by a written consent, duly 
 acknowledged,* empower her husband to dispose of her pro- 
 perty.* 
 
 § 68. The acknowledgment of a deed conveying her 
 estate is nothing unless it be delivered to the grantee, for 
 the delivery is of the essence of the deed. Until delivery, 
 therefore, the wife may revoke her assent, notwithstanding 
 she may have acknowledged the deed in due and proper 
 form ; and in case of her death before delivery of the deed 
 the estate would eo instanti vest in her heirs, and specific 
 performance of the contract could not be decreed.® The 
 
 ' Thompson v. Loorein, 1 Norris ' Shinn v. Holmes, 1 C. 142 ; Haines 
 
 432. V. Ellis, 12 H. 253 ; Miner v. Graham, 
 
 2 Richards v. M'Clelland, 5 C. 387. 12 H. 491 ; Moore v. Cornell, 18 P. T. 
 
 » Miller v. Harbert, 6 Phila. 531 ; S. 323 ; Roseburgh v. Sterling, 3 C. 
 
 Clark V. Thompson, 2 Jones 274. 292 ; Stoops v. Blackford, 3 C. 218 ; 
 
 * As to the mode of acknowledg- Glyde v. Keister, 8 C. 88. 
 ment, see post, page 70, et seq. ' Leland's Appeal, 1 H. 85. 
 
GS THE LAW OP MARRIED WOMEN. 
 
 case might have been different, however, had the deed been 
 delivered in her lifetime, as an escrow.^ 
 
 § 69. It may not be out of place here to observe, that the 
 specific performance of an agreement for the sale of the hus- 
 band's land cannot be enforced by the vendee by an action 
 of ejectment against the vendor, whose wife refuses to join 
 him in the conveyance, and in such action the plaintiff is 
 not entitled to recover possession of the land, upon proof of 
 a tender of performance on his part, and demand of title 
 such as he. stipulated for in the agreement. But if he will 
 consent to take such title as the husband can give him, 
 coverture will not stand in the way of performance. But 
 he must demand no more ; for if he tender the price, 
 demanding an entire execution of the contract, it may be re- 
 jected for having been tendered on a condition he is not 
 entitled to enforce.^ And where a purchaser agreed to pay 
 a wife a sum of money if she would execute a deed for land 
 sold by her husband, and she executed the deed, it was 
 held she could recover the money from the purchaser.^ 
 
 § 70. A married woman is bound like others by the re- 
 cording acts, and may be estopped from claiming under an 
 unrecorded deed, if she sees one in possession, and making 
 valuable improvements, under a title that is good against 
 any other title that she may have, and the party in possession 
 has no notice or knowledge of her title under the deed.* 
 
 Her Capacity to Execute Articles of Agreement for the Sale of 
 Her Real Estate. 
 
 § 71. A married woman may contract for the sale of her 
 real estate by an executory agreement in the statutory 
 mode conferring the power, viz. : by the joinder of her hus- 
 
 ' Leland's Appeal, 1 H. 85. » M'Aboy v. Johns, 20 P. F. S. 9. 
 
 ^ Clark V. Seiver, 7 Watts 107. ' Couch v. Sutton, 1 Gr. 120. 
 
HOW FAR SHE MAY BIND HERSELF. 69 
 
 band in the articles of agreement, and the separate acknowl- 
 edgment by her.-^ But, as in the cas« of an actual convey- 
 ance, such articles executed by husband and wife, for the 
 sale of the wife's land, are of no validity, and convey no 
 title whatever to her estate, in law or equity, without an 
 acknowledgment agreeably to the Act ; and a subsequent 
 deed by the husband and wife to another person, acknowl- 
 edged legally, would convey the title to the whole estate just 
 as if the previous agreement had not been made.^ Such 
 articles of agreement are void, though possession under the 
 agreement is delivered, and the purchase money paid, and 
 the wife may recover the land in ejectment, and the vendee 
 is not entitled in equity to hold possession until repayment 
 of the purchase money .^ Of course, therefore, specific per- 
 formance of such a contract would not be ■decreed, unless 
 acknowledged according to law.* And where a married 
 woman, with her husband, executed an agreement to con- 
 vey land, and received the purchase money, and the pur- 
 chaser went into possession and made valuable improvements 
 thereon, but the agreement was not acknowledged, it was 
 held that after her death, her heirs could recover the land in 
 ejectment, without repaying the purchase money .^ 
 
 § 72. But the Act of 1770 (1 Sm. 307) does not apply to an 
 agreementof partition of real estate made by a married woman; 
 and such agreement is binding upon her without a separate 
 examination and acknowledgment, particularly if it be to 
 her advantage and that of her heirs, and neither she nor 
 they object to it. That Act simply establishes a mode by 
 which husband and wife may convey the estate of the wife." 
 Family arrangements, however, are regarded with favor, and 
 
 1 Dankel v. Hunter, 11 P. F. S. 384. ' Rumfelt v. Clemens, 10 Wr. 455. 
 
 ^ Kirkland v. Hepselgefser, 2 Gr. * Roseburgh v. Sterling, 3 C. 292. 
 
 84 ; Miltenberger v. Croyle, 3 C. 170 ; ' Kirk v. Clark, 9 P. F. S. 479. 
 
 Rumfelt V. Clemens, 10 Wr. 455 ; " Rhoads' Estate, 3 R. 420. 
 Glidden v. Strupler, 2 P. F. S. 400. 
 
70 
 
 THE LAW OF MARRIED WOMEN. 
 
 a parol partition among heirs, if fairly made, is binding even 
 upon/emes covert, if they are parties to it and assent to the 
 arrangement. But it is binding only when the partition 
 has been agreed to by all the joint owners, and when it has 
 been executed. It need not, however, be of all the lands 
 which the parties hold in common or jointly, but it must be 
 complete so far as relates to the part set out in severalty.^ 
 
 Acknowledgment of Deed. 
 
 § 73. In the conveyance of the real estate of a married 
 woman, or any interest of hers in real estate, her husband 
 and herself having executed the deed or conveyance, may, 
 by the Act of 24th February, 1770, section 2 (1 Sm. 307),' 
 appear before one of the judges of the Supreme Court, or 
 before any justice of the County Court of Common Pleas 
 
 1 McC-onnell v. Carey, 12 Wr. 350. 
 
 ^ The section is as follows : " And 
 in order to establish a mode by which 
 husband and wife may hereafter con- 
 vey the estate of the wife, Be it 
 enacted, That where any husband and 
 wife shall hereafter incline to dispose 
 of and convey the estate of the wife, 
 or her right of, in, or to, any lands, 
 tenements or hereditaments whatso- 
 ever, it shall and may be lawful to 
 and for the said husband and wife 
 to make, seal, deliver and execute 
 any grant, bargain and sale, lease, 
 release, feoffment, deed, conveyance 
 or assurance in the law whatsoever, 
 for the lands, tenements and here- 
 ditaments, intended to be by them 
 passed and conveyed, and after such 
 execution, to appear before one of 
 the judges of the Supreme Court, or 
 before any justice of the County 
 Court of Common Pleas of and for 
 the county where such lands, tene- 
 ments or hereditaments shall lie, and 
 
 to acknowledge the said deed of con- 
 veyance ; which judge or justice shall, 
 and he is hereby authorized and re- 
 quired to take such acknowledf;ment, 
 in doing whereof he shall examine 
 the wife separate and apart from her 
 husband, and shall read or otherwise 
 make known the full contents of 
 such deed or conveyance to the said 
 wife ; and if upon such separate ex- 
 amination she shall declare that she 
 did voluntarily, and of her own free 
 will and accord, seal, and as her act 
 and deed, deliver the said dtnd or 
 conveyance, without any coercion or 
 compulsion of her said husband, 
 every such deed or conveyance shall 
 be, and the same is hereby declared 
 to be good and valid in law, to all 
 intents and purposes, as if the said 
 wife had been sole and not covert 
 at the time of such sealing and de- 
 livery, any law, usage or custom to 
 the contrary in anywise notwith- 
 standing." 
 
HOW FAR SHE MAY BIND HERSELF. 71 
 
 of the county where the lands lie, and acknowledge the 
 deed oi' conveyance ; and in taking the acknowledgment, 
 the judge or justice is required to examine the wife separate 
 and apart from her husband, and to read or otherwise make 
 known the full contents of the deed or conveyance to her ; 
 and if, upon such separate examination, she shall declare 
 that she did voluntarily, and of her own free will and 
 accord, seal, and as her act and deed, deliver the said deed 
 or conveyance, without any coercion or compulsion of her 
 said husband, every such deed or conveyance shall be good 
 and valid in law, to aU intents and purposes, as if the wife 
 had been sole and not covert, at the time of such sealing 
 and delivery. By subsequent Acts, the acknowledgment 
 may be made before other officers, such as justices of the 
 peace, aldermen, notaries public, &c. Prior to the Act of 
 1770 it had been the constant usage of the province for 
 married women to convey their estates without an acknowl- 
 edgment or separate examination, and there being a great 
 number of valuable estates held under such titles, it was held, 
 upon the maxim communis error facit Jus, that such convey- 
 ances were good.^ The Act of 1770 was introduced as a sub- 
 stitute for a fine, and established arule for the acknowledgment 
 of deeds conveying the real estate of married women, or their 
 rights and interests in real estate; and its substantial requisites 
 must be pursued, though a strict compliance with the very 
 words of the Act is not essentially necessary.^ And these 
 substantial requisites must appear by the officer's certificate 
 of acknowledgment ; parol testimony being inadmissible in 
 aid of a defective acknowledgment.^ 
 
 1 Lloyd V. Taylor, 1 Binn. 17 ; Kirk Morrow, 5 S. & R. 289 ; Fowler v. 
 
 V. Dean, 2 Binn. 345. And see Davey McClurg, 6 S. & R. 143 ; Jamison v. 
 
 a. Turner, Ibid. 11. Jamison, 3 Wh. 472; Graham v. 
 
 ' Watson V. Bailey, 1 Binn. 470 ; Long, 15 P. F. Smith 386 ; Miller v. 
 
 Kirk V. Dean, supra; Watson v. Wentworth, 33 Leg. Int. 436. 
 
 Mercer, 6 S. & R. 49 ; Thompson v. 'Watson v. Bailey, 1 Binn. 470; 
 
72 THE LAW OF MARRIED WOMEN. 
 
 § 74. A married woman can waive nothing or assent to 
 nothing in the acknowledgment of a deed, except in the way 
 pointed out by the law.^ The certificate of the officer, how- 
 ever, is a judicial act, and cannot be impeached except for 
 fraud. As to him who has notice, or who has parted with 
 no valuable consideration, and, of course, as between the 
 parties themselves, the wife may avoid the instrument by 
 showing that she was entrapped into the execution of it by 
 craft or treachery, or compelled thereto by force.^ 
 
 § 75. But though the certificate is not conclusive as be- 
 tween the parties and those having notice, in cases of fraud 
 and imposition, or duress, and may be overcome by parol 
 evidence, it is conclusive of every material fact appearing 
 on its face, as to subsequent purchasers for a valuable con- 
 sideration, without notice,^ and as to bond fide vendees and 
 mortgagees, for value, without notice.* It is conclusive of 
 such facts only as the magistrate is bound to record and cer- 
 tify, not of facts which he is not required to certify under 
 the provisions of the statute. The general rule in regard 
 to certificates, given by persons in official stations, is that 
 the law never allows a certificate of a mere matter of fact, 
 not coupled with any matter of law, to be admitted in evi- 
 dence. If the person was bound to record the fact, then the 
 proper evidence is a copy of the record duly authenticated. 
 But as to matters which he was not bound to record, his 
 certificate, being extra-official, is merely the statement of a 
 private person, and will be rejected.^ 
 
 Jourdan v. Jourdan, 9 S. & R. 274 
 Watson V. Meroer, 6 S. & R. 49 
 Graham v. Long, 15 P. F. S. 386 
 
 Louden v. Blythe, 3 C. 22 ; Michener 
 V. Cavender, 2 Wr. 334 ; Hall v. Pat- 
 terson, 1 P. F. S. 2S9 : Williams v. 
 
 Louden v. Blythe, 3 C. 22 ; Williams Baker, 21 P. F. S. 482 ; Heeter v. 
 
 V. Baker, 21 P. F. Smith 482. Glasgow, 2 Weekly Notes 1. 
 
 ^ Withers v. Baird, 7 Watts 228. * Singer Manufacturing Co. v. Rook 
 
 ^ Singer Manufacturing Co. v. Rook and Wife, 34 Leg. Int. 330. 
 
 and Wife, 34 Leg. Int. 330. 'Williams v. Baker, 21 P. F. S. 
 
 ' Sohrader v. Decker, 9 Barr 14 ; 482, per Williams, J. 
 
HOW FAB SHE MAY BIND HERSELF. 73 
 
 § 76. If the certificate be in point of fact false, and if the 
 grantee knew it to be false, or if he have knowledge of any 
 circumstance which would put an honest and prudent man 
 upon inquiry, then, too, it may be contradicted by parol 
 evidence.^ Thus, parol evidence is admissible to show that 
 the acknowledgment by the wife, in the case of a mortgage 
 of her separate estate, was not made of her own free will 
 and accord, but that undue means were used in obtaining it, 
 and that the mortgagee had a knowledge of facts sufficient 
 to put him on inquiry, and to ascertain for himself whether 
 she executed the mortgage " of her own free will and 
 accord."^ 
 
 § 77. The Legislature intended that a mairied Avoman, 
 in conveying her estate, should be a free agent, and that 
 she should be secure from deception as well as improper 
 influence on the part of her husband. The requisites in 
 acknowledgments by a married woman, therefore, are, that 
 she be separately examined, that she have a knowledge of 
 the nature and consequences of the act she is about to per- 
 form, and that her will in the performance of it be free.^ 
 The certificate of the officer must show that he examined 
 her separate and apart from her husband, that he made the 
 contents of the deed fully known to her, and that she de- 
 clared her execution of it to be voluntary, and free from 
 every sort of coercion.* Where, therefore, by the certificate 
 in the conveyance of the wife's land it was certified that the 
 husband and wife had personally appeared before the officer 
 and acknowledged the indenture " to be their act and deed, 
 and desired that the same might be recorded, she the said M. 
 heing of full age, and by me examined apart" the acknowledg- 
 ment was held to be insufficient, and the deed had no legal 
 effect against the wife's heir-at-law upon her death.^ So, 
 
 1 Louden v. Blythe, 3 C. 25. * Louden v. Blythe, 3 C. 25. 
 
 2 Louden v. Blythe, 4 H. 542. « Watson v. Bailey, 1 Binn. 470 
 =• Evans v. Com., 4 S. & R. 272. Watson v. Mercer, 6 S. & R. 49. 
 
74 
 
 THE LAW OF MARRIED WOMEN. 
 
 where the certificate stated that they personally appeared 
 before the officer, " she being of full age, and hy me, separate 
 and apart from her husband, examined," and acknowledged 
 the instrument as their act and deed, the acknowledgment 
 was held to he insufficient.-" 
 
 § 78. But where the certificate sets forth that the grant- 
 ors personally appeared before the officer, "and severally 
 acknowledged the said indenture as their act and deed, and 
 desired that the same might be recorded as such, she, the 
 said C, being of full age, separate and apart from her said 
 husband by me examined, and the full contents made 
 known to her, voluntarily consenting thereto," the acknowl- 
 edgment was held to be good, and the estate of the wife 
 legally conveyed.^ So where the acknowledgment of the 
 wife set forth that her husband and she appeared in person 
 and acknowledged the indenture to be their act and deed, 
 and desired that it might be so recorded ; that she was ex- 
 amined separate and apart from her husband ; that the con- 
 tents were first fully made known to her, and that she signed, 
 sealed and delivered the same without any fear or compulsion 
 of her said husband, all the requisites of the Act of 1770 are 
 complied with. The words " without any fear or compul- 
 sion of her said husband," are equivalent to a declaration of 
 free will.^ And if it appear from the certificate that the 
 wife had knowledge of the contents of the deed, it is not 
 material that it does not also appear that the knowledge 
 was communicated to her by the officer taking the acknowl- 
 edgment.* 
 
 § 79. The Act does not require a p7-ivy examination of 
 the wife, but is sufficient if she be examined separate and 
 
 ' Fowler v. McCIurg, 6 S. & R. » Miller v. Wentworth, 33 Leg. Int. 
 143. 436. 
 
 2 Shaller v. Brand, 6 Binn. 435. ■• Mclntire v. Ward, 5 Binn. 301, 
 
 per Tilghman, C. J. 
 
HOW FAR SHE MAY BIND HERSELF. 75 
 
 apart from her husband. Where, therefore, a third party- 
 was present with her and the magistrate, after the husband 
 had withdrawn, this does not affect the acknowledgment.^ 
 
 § 80. The justice who takes and certifies the acknowl- 
 edgment of the wife to a deed is acting judicially. He is 
 the commissioner and organ of the law, intrusted with the 
 duty of seeing that it is her act and deed,, and that she did 
 voluntarily and of her own free will and accord seal, and as 
 her act and deed deliver the deed or conveyance, without 
 any coercion or compulsion of her husband.^ And a magis- 
 trate who is an interested party is incompetent to take the 
 wife's acknowledgment.^ 
 
 § 81. The Act of 11th April, 1848, section 6, provides 
 that a married woman's property shall not "be sold, con- 
 veyed, mortgaged, transferred, or in any manner encum- 
 bered by her husband, without her written consent first 
 had and obtained, and duly acknowledged before one of the 
 judges of the Courts of Common Pleas of this Common- 
 wealth, that such consent was not the result of coercion on 
 the part of her said husband, but the same was voluntarily 
 given, and of her own free will." It was held that this 
 enactment made no change in the mode by which a married 
 woman may convey or release her interest in real estate, 
 but that it applied only to the manner in which her husband 
 might transfer or encumber her property ; and that under 
 this Act she might, by her written consent, acknowledged in 
 the mode therein designated, empower her husband to dis- 
 pose of her property.* Subsequently the Act of 9th April, 
 
 1 Jones V. Maffer, 5 S. & R. 534. Haines v. Ellis, 12 H. 253 ; Miner v. 
 
 2 Louden v. Blythe, 4 H. 540, per Graham, 12 H. 491 ; Moore v. Cor- 
 Chambera, J. ; Withers v. Baird, 7 nell. 18 P. F. S. 323 ; Haffey v. Carey, 
 Watts 228. 23 P. P. S. 431 ; Rosebury v. Stir- 
 
 ' Withers v. Baird, supra. ling, 3 C. 292 ; Stoops v. Blaok- 
 
 * Shinn v. Holmes, 1 C. 142 ; ford, 3 C. 218 ; Glyde v. Keister, 8 
 
76 THE LAW OF MARRIED WOMEN. 
 
 1849 (P. L. 526), was passed, the lOth section^ of which 
 made valid all deeds theretofore made or acknowledged 
 by married women since the Act of 1848, or which might 
 thereafter be executed and acknowledged according to the 
 laws of the Commonwealth in force previous to that Act. 
 This Act was held to have been unnecessary in its effect 
 upon a married woman's conveyance of her real estate, as it 
 merely affirmed the law which existed before its enactment.^ 
 But, applying as it does to "all deeds" made and acknowl- 
 edged by a married woman since the Act of 1848, and 
 thereafter to be made and acknowledged, without any re- 
 striction whatever, it would seem to be sufficient to cover 
 both the case of an authority given by deed by the wife to 
 her husband to sell her property, and to conveyances 
 executed by herself; rendering all such deeds made and to 
 be made, and acknowledged since the Act of 1848, valid, if 
 made and acknowledged according to the laws existing prior 
 to that Act. However this may be, the Legislature has, by 
 the Act of 11th April, 1856, section 1 (P. L. 315),^ ex- 
 
 C. 88 ; Bond v. Bunting, 28 P. F. S. deemed to be sufficiently executed 
 
 219. and acknowledged without further 
 
 ' The section is as follows : " All acknowledgment." 
 deeds heretofore made and acknow- ^ Shinn v. Holmes, 1 C. 144. 
 ledged by any married woman, since ' The section enacts that " So much 
 the Act of eleventh April, one thou- of the Act relating to the right of 
 sand eight hundred and forty-eight, married women, and for other pur- 
 shall be (valid) and effectual :Pro«dcd, poses, passed the 11th of April, 
 the same have been made and acknow- 1848, as requires the consent of a 
 ledged according to the laws of this married woman to be first had and 
 Commonwealth, which were in force obtained, or the acknowledgment of 
 previous to the Act of the eleventh of her deed or mortgages, when convey- 
 April, one thousand eight hundred ing her own real estate, to be made 
 and forty-eight ; and that all such differently from that which she is 
 deeds which may be hereafter execu- authorized to make when she joins 
 ted and acknowledged according to her husband in conveying his real 
 the provisions of existing laws pre- estate, to bar her right to dower 
 vious to the passage of the Act of the therein, is hereby repealed ; and all 
 eleventh of April, one thousand eight deeds or mortgages of any married 
 hundred and forty-eight, shall be woman heretofore acknowledged 
 
HOW FAR SHE MAY BIND HERSELF. 77 
 
 pressly repealed so much of the Act of 1848 as requires the 
 consent of a married woman to be first obtained, or the 
 acknowledgment of her deed or mortgages, when conveying 
 her own real estate, to be made differently from that which 
 she is authorized to make when she joins her husband in 
 conveying his real estate to bar her right of dower therein ; 
 and made valid all deeds or mortgages of a m.arried woman 
 theretofore acknowledged jointly with her husband so as to 
 bar her right of dower or interest in her htisband's lands. 
 So that now no previous consent is required from a married 
 woman in the sale of her own real estate, and all acknowl- 
 edgments by her, whether in the sale of her own or hus- 
 band's real estate, are to be made according to the law as it 
 stood prior to the Act of 1848. 
 
 § 82. A wife may assign her choses in action, her hus- 
 band joining in the act of disposition, without acknowledg- 
 ment of any kind.^ The assignment of a mortgage, how- 
 ever, stands upon a different footing. It is not a mere chose 
 in action, but also a conveyance of the real estate. The 
 mortgagee is a purchaser within the statute of Elizabeth, and 
 the recording acts apply to him.^ 
 
 Husband as Wife's Agent. 
 
 § 83. The husband may be employed as his wife's agent 
 in business.^ But he is not, as husband, necessarily her 
 agent ; where, therefore, she is entitled to notice in proceed- 
 ings affecting her interests, service of notice upon him would 
 not be sufficient.* Though, it is possible, a summons or 
 notice, designed'for the wife, delivered to the husband at or 
 
 jointly with her husband so as to bar ' Bond v. Bunting, 28 P. F. S. 219. 
 
 her right of dower or interest in her ^ Bond v. Bunting, supra. 
 
 husband's lands, shall be effectual " Welch v. Kline, 7 P. F. S. 428. 
 
 and valid to debar her in respect to ' Helen v. Bryson, 4 Wr. 473 ; 
 
 her own real estate." Shimer v. Jones, 11 Wr. 274. 
 
78 
 
 THE LAW OF MARRIED WOMEN. 
 
 about his home, might be good.^ A married woman holding 
 a promissory note, for the payment of which another is 
 surety, is, on account of her separate estate, entitled to 
 notice from the surety to proceed against the principal 
 debtor for collection of the note, in order to discharge the 
 surety; and notice to the husband to proceed is not sufficient.^ 
 Under the Act of 1848, as we have seen, she may authorize 
 him to act for her in conveying or moi'tgaging her real 
 estate ; but this must be done by an instrument of writing 
 separately acknowledged.' 
 
 ' Helen v. Bryson, supra. ' Stoops v. Blackford, 3 C. 218. 
 
 "^ Shimer v. Jones, 11 Wr. 268. 
 
HER RIGHTS OP PROPERTY. 
 
 79 
 
 CHAPTER VIII. 
 
 HER RIGHTS OF PROPERTY. 
 
 § 84. Prior to the Act of 11th April, 1848 (P. L. 536), a 
 husband, upon marriage, became entitled to all the personal 
 property of his wife in possession at the time of the mar- 
 riage, or acquired by her thereafter, to reduce her choses in 
 action into possession, and to their proceeds when so re- 
 duced.^ He became also entitled to the use and enjoyment 
 of all her real estate and its rents, issues and profits, during 
 their joint lives, and during his life in case he survived her, 
 as tenant by the curtesy ;- but that Act preserves to every 
 woman, after marriage, as her own separate property, the 
 property she owned before marriage, as well as any that 
 may accrue to her during coverture, subject to the right of 
 the husband as tenant by the curtesy, in her real estate.^ 
 
 ' Housel V. "Elousel, 1 Am. L. J. 387 ; 
 Speakman's Appeal, 21 P. F. S. 25 ; 
 Davis 1). Zimiaerman, 17 P. F. S. 74. 
 
 ^ See Bear v. Bear, 9 C. 525 ; Cum- 
 ming's Appeal, 1 Jones 275 ; 2 Kent's 
 Cora. 130. 
 
 * The 6th section of that Act pro- 
 vides that " every species and descrip- 
 tion of property, whether consisting 
 of real, personal or mixed, which 
 may be owned by or belong to any 
 single woman, shall continue to be 
 the property of such woman, as fully 
 after her marriage as before ; and all 
 such property, of whatever name or 
 kind, which shall accrue to any mar- 
 ried woman during coverture, by 
 will, descent, deed of conveyance, or 
 otherwise, shall be owned, used and 
 enjoyed by such married woman as 
 her own separate property ; and the 
 said property, whether owned by her 
 
 before marriage, or which shall accrue 
 to her afterwards, shall not be subject 
 to levy and execution for the debts or 
 liabilities of her husband ; nor shall 
 such property be sold, conveyed, 
 mortgaged, transferred, or in any 
 manner encumbered by her husband 
 without her written consent first had 
 and obtained, and duly acknowledged 
 before one of the judges of the Courts 
 of Common Pleas of this Common- 
 wealth, that such consent was not the 
 result of coercion on the part of her 
 said husband, but that the same was 
 voluntarily given, and of her own free 
 will ; Provided, that her said husband 
 shall not be liable for the debts of the 
 wife contracted before marriage : Pro- 
 vided, that nothing in this Act shall 
 be construed to protect the property 
 of any such married woman from 
 liability for debts contracted by her- 
 
80 THE LAW OF MARRIED WOMEN. 
 
 The Act does not apply to property of the wife vested in 
 the husband before its passage. Neither that Act nor any 
 of the subsequent Acts relating thereto is retroactive, so as 
 to divest the interest which a husband may have had in the 
 real estate of his wife before the Act of 1848, nor any 
 other marital right exercised before the passage of that Act, 
 and in full enjoyment at the time. This would be unconsti- 
 tutional.-^ Consequently, where the marriage took place 
 prior to the Act of 1848, and the husband died shortly after 
 its passage, and the wife subseq^iently, it was held that the 
 personal property of the wife owned by her prior to the 
 marriage, and remaining in specie on the premises of the 
 husband, after his death, went to his personal representa- 
 tives.^ 
 
 § 85. Shortly after the passage of this Act, the Supreme 
 Court seemed disposed to take a very radical view of its 
 effect and operation. It was said that by the Act, with but 
 few exceptions, a married woman must be considered &feme 
 sole in regard to any estate owned by her before marriage, or 
 which shall accrue to her during coverture, and that the Act 
 worked a radical and thorough change in the condition of a 
 
 self, or in her name, by any person ^ Martha Mann's Appeal, 14 Wr. 
 
 authorized so to do, or from levy and 381 ; Boose's Appeal, 6 H. 392; Steit- 
 
 execution on any judgment that may man u. Huber, 9 H. 260; Burson's 
 
 be recovered against the husband for Appeal, 10 H. 164; Bachman v. Chris- 
 
 the torts of the wife, and in such cases man, 11 H. 162 ; Peck v. Ward, 6 H. 
 
 execution shall be first had against the 509 ; Lefever v. Witmer, 10 Barr .505 ; 
 
 property of the wife." And section Bank v. Stauffer, 10 Barr 398. 
 
 10th of the same Act provides " that ^ Housel v. Housel, 1 Am. L. J. 
 
 the real estate of such married woman, 387. 
 
 upon her decease, shall be distributed The goods of a tenant's wife, found 
 
 as provided for by the intestate laws on the demised premises, are liable to 
 
 of this Commonwealth, now in force : distress for rent in arrear, though 
 
 Provided, that nothing contained in they are her separate property. The 
 
 this Act shall be deemed or taken to Act of 1848 does not alter the general 
 
 deprive the husband of his rights as law of landlord and tenant: Blanche 
 
 tenant by curtesy." v. Bradford, 2 Wr. 344. 
 
HER RIGHTS OP PROPERTY. 81 
 
 feme covert} But subsequent decisions have discarded this 
 idea, and it is now held that the Act does not make the wife 
 a feme sole as regards her property, but as if the property 
 had been settled to her sole and separate use during her 
 coverture ; that the Act was intended for her protection, 
 and must receive such construction as shall promote that ob- 
 ject ; that it is in derogation of the common law, and must 
 therefore be strictly confined to the objects plainly expressed 
 or necessarily implied ; that the marital relation, with its 
 rights and duties, is not abrogated, but remains as before, 
 except in the particulars necessarily changed by the Act ; 
 that it is not an enabling but a restraining and remedial 
 statute ; that its general intent was to prevent a wife's pro- 
 perty from being swept away by her husband's creditors 
 against her consent, and to preserve it for her ; and that it 
 accomplished this by preventing her choses in possession 
 from becoming the property of her husband, denying to him 
 succession to dominion over her choses in action, and de- 
 barring him from ownership of the use of her real estate.^ 
 
 § 86. At common law the wife can hold no separate 
 estate in lands ; such an estate is recognized only in equity.' 
 If, therefore, lands be given to her separate use, she takes 
 but an equitable estate, and if no trustee be named, a court 
 of equity will convert the husband into a trustee for her. 
 This is well settled.* Notwithstanding this, however, 
 
 1 Cumming's Appeal, 1 Jones 272 ; Act of 1848. By the Act of 2.5th 
 see Goodyear v. Rumbaugh, 1 H. April, 1850, § 11 (P. L. 571), it it- 
 480. provided that whenever by the pro- 
 
 2 Bear's Admr. v. Bear, 9 C. 525; visions of the Act of 11th April, 1848, 
 Haines v. Ellis, 12 H. 253 ; Mahon " the property of a married woman is 
 V. Gormley, 12 H. 80 ; Pettit ». Fretz, secured to her, and she shall have no 
 9 C. 118. trustee of the same, it shall be lawful 
 
 ' Wright V. Brown, 8 Wr. 238. for any such married woman to apply 
 
 * Wright V. Brown, supra. She to the Court of Common Pleas of the 
 
 may have a trustee appointed of county where she was domiciled at 
 
 her property secured to her by the the time of her marriage, for the ap- 
 
 6 
 
82 THE LAW OP MARRIED WOMEN. 
 
 although the Act of 1848 provides that the property which 
 shall accrue to a married woman during coverture shall be 
 owned, used, and enjoyed by her " as her own separate pro- 
 perty," her estate in lands so acquired is, since this Act, a 
 legal and not an equitable one, unless otherwise provided 
 by the instrument of conveyance.^ And though the terms 
 of ownership in the Act are different for women having pro- 
 perty when married and who acquire it afterwards, their 
 sense is said to be the same in both cases, and the estate 
 thus assured to the wife is only analogous to the equitable 
 separate estate.^ But if the deed of conveyance should 
 itself expressly convey the land to a married woman for 
 her separate use, while in every other respect it is an ordi- 
 nary fee-simple deed, her estate would be an equitable one, 
 and she could not convey during coverture, though joined in 
 the deed by her husband -^ for in such case she could con- 
 vey only by an express power given in the deed,* it being 
 the settled law of Pennsylvania that a married woman pos- 
 sesses no power in respect to her separate estate but what is 
 positively given or reserved to her by the instrument creat- 
 ing such estate.' And the Act of 1848 does not unfetter 
 the estate of a feme covert, settled to her sole and separate 
 
 pointmentof atrusteeof the same, and ' Ins. Co. v. Foster, 11 C. 134. 
 
 such Court shall appoint a trustee of ^ Walker v. Reamy, 12 C. 410. 
 
 the same, not being the husband of the 'Wright v. Brown, 8 Wr. i!3S ; 
 
 said petitioner ; and it shall further be Shank v. Brown, 11 P. F. S. 321. 
 
 lawful for any such married woman See Todd's Appeal, 12 H. 431. 
 
 to declare a trust in regard to such * Ibid. ; Penna. Ins. Co. v. Foster, 
 
 property, or any part thereof, in favor supra; see Lancaster v. Dolan, 1 R. 
 
 of any of her children.'' But this Act 231; Wallace v. Coston, 9 Watts 
 
 does not authorize the appointment of 137; Thomas v. Folwell, 2 AVh. 11; 
 
 a, trustee of property which belonged Cochran v. O'Hern, 4 W. & S. 100; 
 
 to a married woman whose marriage Stahl c. Crouse, 1 Barr 111 ; Rogers 
 
 took place before the passage of the v. Smith, 4 Bai-r 93 ; Page's Estate, 
 
 Act of 1848, to the exclusion of her 25 P. F. S. 94 ; Jones' Appeal, 7 
 
 husband. The Legislature could not P. F. S. 369. 
 
 thus divest the husband of his vested ^ Thomas v. Folwell, supra; Wal- 
 
 rights and interests in the real estate lace v. Coston, supra; Lancaster v. 
 
 of his wife : Benson's Ap., 10 H. 164. Dolan, supra. 
 
HER RIGHTS OF PROPERTY. 83 
 
 use, SO as to confer upon her a power not given to her by 
 the donor to convey away her estate.^ In Haines v. EUis,^ 
 where, since the Act of 1848, land was conveyed to a mar- 
 ried woman in fee, " to and for the only sole, separate, and 
 proper use and behoof of" herself, " her heirs and assigns 
 forever," the Court held that her estate was not equitable, 
 and that her husband and herself could convey in fee sim- 
 ple ; but this case has been overruled by the subsequent 
 one of Wright v. Brown (8 Wr. 238), and declared not 
 to be " a correct enunciation of the law." The doctrine 
 of these cases seems to be that by the Act of 1848 the law, 
 viz., this statute law, now recognizes a separate estate in a 
 married woman, and that this estate, under this Act, is a 
 legal estate where the conveyance is to her use simply, in 
 the usual form of fee-simple deeds ; but if the conveyance 
 expresses it to be for her separate use, then her estate is an 
 equitable one, her husband will be treated as her trustee, 
 and neither, nor both together, can convey unless the deed 
 to her contains an express power of sale, the deed in this 
 case coming within the purview of ordinary conveyances in 
 trust. In Bear v. Bear,^ the Court say, of her property 
 generally, " She is to own, use, and enjoy it as a manied 
 woman, as if the property had been settled to her sole and 
 separate use during her coverture ;" and held that as prior 
 to the Act of 1848 she could not enter into contracts re- 
 specting property settled to her separate use, with strangers, 
 or with her husband, which would be obligatory upon her, 
 and enable them to levy upon and sell her separate pro- 
 perty, she cannot enter into such contracts since the Act, 
 respecting her estate held as her "separate property" under 
 the Act. By parity of reasoning it would seem to follow, 
 also, that she cannot with her husband convey such pro- 
 perty without express power given in the deed of convey- 
 
 ' Page's Estate, 25 P. F. S. 94 ; » 12 H. 253. 
 Penna. Ins. Co. v. Foster, 11 C. 134. ' 1 C. 529. 
 
84 THE LAW OF MARRIED WOMEN. 
 
 ance, as, clearly, she could not do so as to property settled 
 to her separate use prior to the Act. But the law, as we 
 have seen, appears to be settled otherwise ; and it is held 
 that such property is only analogous to the wife's equitable 
 separate estate. 
 
 § 87. In order to validate conveyances and mortgages 
 made by the husband and wife of the wife's real estate 
 acquired by her since the passage of the Act of 11th April, 
 1848, for her separate use, or as her separate estate, with- 
 out the intervention of a trustee, the Act of 22d April, 
 1863 (P. L. 533), was passed, by the first section of whicy 
 all such conveyances and mortgages theretofore made, and 
 duly acknowledged by the wife, are made of like force and 
 effect as if they had been given and executed under and in 
 the due exercise of a power authorizing such conveyance, 
 or mortgage, contained in the instrument by which the said 
 separate estate of such married woman was created, the 
 Act, however, excepting from its provisions any case 
 theretofore adjudicated by the Supreme Court. 
 
 § 88. Where real estate had been devised to a married 
 woman, " to the sole and separate use of her and her law- 
 
 ' The section provides as follows : rity to take acknowledgments of 
 " '\Vhen any estate in lands, tene- deeds and moi-tgages, and in which 
 ments, hereditaments, or any pro- her husband has joined as a party, 
 perty, real or personal, has been the said conveyance or mortgage, and 
 heretofore, by any will or other in- the estates and interests thereby cre- 
 strument taking effect subsequent to ated, shall be and be taken to be of 
 the 11th day of April, 1848, devised, like force and effect, in all respects, 
 conveyed, given to, or in any way as if the same had been given and 
 acquired, by any married woman, to executed under and in the due exer- 
 and for her separate use, or as her cise of a power authorizing such con- 
 separate estate, without the interven- veyance or mortgage contained in the 
 tion of a trustee, and the same shall instrument by which the said separate 
 heretofore have been conveyed or estate of the said married woman was 
 mortgaged by her, by any deed or ci-eated; Pro»idef7, that this Act shall 
 instrument duly acknowledged by not affect any case heretofore finally 
 her, before any officer having autho- adjudicated by the Supreme Court." 
 
HER RIGHTS OF PROPERTY. 85 
 
 ful heirs," so that she " cannot sell or convey the same, but 
 to descend to her lawful heirs, and so that the said real 
 property cannot be taken, sold, or rented, or leased from 
 her or her heirs, to pay any judgment or demand that may 
 be against her said husband," and the will took effect since the 
 passage of theActof 1848,and a conveyance of the real estate 
 devised under it was made by the married woman joined by 
 her husband, the wife afterwards dying, leaving children 
 and her husband surviving her ; in ejectment for the real 
 estate subsequently brought by the children, it was held 
 that the efiect of the devise was to vest the estate for her 
 sole and separate use, freed from the debts of her husband, 
 without power to convey during coverture, and that the 
 foregoing Act of 1863 did not validate the conveyance by the 
 husband and wife, because the Legislature had no power to 
 validate the conveyance as against her heirs, where she had 
 neither the right nor the power to convey during coverture.-^ 
 A supplement to this Act of 1863 was passed 10th April, 
 1867 (P. L. 67), section 1 of which provides that "nothing 
 contained in the first section of the Act to which this is a 
 supplement shall be taken to affect or apply to the separate 
 estate of a married woman, where the right to convey or 
 incumber the same has been withheld in the will, deed or 
 other instrument by which the said separate estate of the 
 said married woman was created." 
 
 Her Title must be Clear as against Creditors of her Hushand. 
 
 § 89. As against creditors of the husband, where pro- 
 perty is claimed by a married woman, she must show by 
 evidence which does not admit of a reasonable doubt, either 
 that she owned it at the time of her marriage, or else ac- 
 quired it afterwards by gift, descent or purchase. In case 
 of a purchase after marriage, the burden is upon her to 
 
 1 Shank v. Brown, 11 P. F. S. 320. 
 
86 THE LAW OF MARRIED WOMEN. 
 
 prove distinctly that she paid for it with funds which were 
 not furnished by the husband.-' It is made necessary by 
 the letter as well as the spirit of the statute, in order to 
 bring her property under its protection, to prove that she 
 ovms it. Evidence that she purchased it amounts to 
 nothing unless it be accompanied by clear and full proof 
 that she paid for it with her own separate funds ; not 
 merely that she had the means of paying, but that she in 
 fact thus paid. In the absence of such proof the presump- 
 tion of law is that her husband furnished the means of 
 payment,^ and the fact that she gave her note for the 
 consideration money, alone, without a separate estate, is 
 not suflicient to invest her with title. The presumption is 
 that the consideration Avas paid, or to be paid, out of the 
 estate of her husband.'' Before the Act of 1848 the posses- 
 sion of money by the wife was, in contemplation of law, the 
 possession of the husband. The money was presumed to 
 be his, and this even though the wife might have had an 
 estate settled to her separate use. Of course, when she 
 used money in the pui'chase of either real or personal pro- 
 
 1 Gamber v. Garaber, 6 H. 363 ; Vought, 5 P. F. S. 419 ; Brown v. 
 
 Hoar V. Axe, 10 H. 381 ; Auble v. Pendleton, 10 P. P. S. 419 ; Pusey v. 
 
 Mason, 11 C. 261; AValker u. Reamy, Harper, 3 0. 469: Barr v. Greena- 
 
 12 C. 410 ; Winter v. Walker, 1 wait, 12 P. P. S. 172 ; Kline's Appeal, 
 
 Wr. 156; Rhoads u. Gordon, 2 3 Wr. 463; Kutz's Appeal, 4 Wr. 
 
 Wr. 277; Baringer v. Stiver, 13 90. 
 
 Wr. 129 ; Hause v. Gilger, 2 P. P. ^ Keenej v. Good, 9 H. 349 ; Win- 
 
 S. 412; Hoffman v. Toner, 13 Wr. ter v. Walter, 1 Wr. 155; Bradford's 
 
 231; Flick V. Devries, 14 Wr. 266; Appeal, 5 C. 513; Aurand u. Shaffer, 
 
 Aurand v. Schaffer, 7 Wr. 363 ; Trip- 7 Wr. 363 ; Topley u. Topley, 7 C. 
 
 ner u. Abrahams, 11 Wr. 220 ; Curry 328 ; Rhoads v. Gordon, 2 Wr. 277 ; 
 
 V. Bott, 3 P. P. S. 400 ; Phillips v. Flick v. Devries, 14 Wr. 266 ; Curry 
 
 Reeder,7Phila. 118; Conrad I'. Shoms, k Bott, 3 P. P. S. 400; Phillips v. 
 
 8 Wr. 193 ; Earl V. Champion, 15 P. Reeder, 7 Phila. 118; GauU v. 
 
 F. S. 191 ; Gillespie v. Miller, 1 Wr. Saffin, 8 AVr. 307; Hoffman v. Toner, 
 
 247 ; Black v. Nease, lb. 433 ; Gault 13 Wr. 231 ; Kepler u. Davis, 33 Leg. 
 
 V. Saffin, 8 Wr. 307 ; Kepler v. Davis, Int. 203. 
 
 33 Leg. Int. 203 ; Jones v. Covert, 1 » Carry v. Bott, 3 P. P. S. 403. See 
 
 Weekly Notes 289. See Rush v. Kepler v. Davis, 30 P. P. S. 153. 
 
HER RIGHTS OF PROPERTY. 87 
 
 perty, the presumption was that she used her husband's 
 money, and the ownership of the thing purchased was 
 vested in him whose money had purchased it, and the pre- 
 sumption is the same since that Act.'- The rule is the same 
 as to purchases both of real and personal estate. The evils 
 to be guarded against are equally great in both cases ; and 
 as the ownership of the thing purchased is not dependent 
 upon the form of the title, but follows the ownership of 
 the purchase-money, whether it be realty or personalty can 
 make no possible difference.^ 
 
 § 90. While in a contest between the wife and the 
 creditors of the husband she is held to strict proof of 
 ownership, yet in a contest between such creditors and 
 purchasers for a valuable consideration, under her, a title 
 appearing upon the face of the deed is not to be disregarded, 
 without proof of circumstances which ought to have put the 
 purchaser from her and his alienees upon their guard against 
 the husband's creditors.^ So, where the title to property 
 mortgaged by husband and wife as her property was in 
 the wife's name, and had never been in the husband's, a 
 lond fide mortgagee of such property for valuable considera- 
 tion, without notice, is not bound, as against the husband's 
 creditors, to inquire into and ascertain the exact truth as to 
 the title, before he advances his money. When the ques- 
 tion arises between the wife herself, or volunteers under 
 her, and her husband's creditors, she must show not only 
 her title, but the means of obtaining it. So far the policy 
 of the law comes in aid of the creditors. But when the 
 case is one between them and bona fide purchasers or 
 mortgagees from her, the policy of the law casts the loss 
 on the creditors, if they fail to show knowledge or notice of 
 
 ^ Winter v. Walter, 1 Wr. 155, per ger v. Stiver, 13 Wr. 129 ; Keeney v. 
 Strong, J. Good, 9 H. 349. 
 
 ^ Winter v. Walter, supra ; Barin- ' Keiohline v. Keiohline, 4 P. F. S. 
 
 15. 
 
88 THE LAW OP MARKIEB WOMEN. 
 
 the husband's equity on the part of the purchasers or 
 mortgagees.-^ And in a suit in the name of the husband 
 and wife for her use, against one who has taken property 
 from her possession without showing any claim under her 
 husband or herself, but appears to be a mere wrongdoer, 
 the defendant cannot dispute the assertion of both husband 
 and wife that the property was hers.^ So a judgment con- 
 fessed by an executor to husband and wife, for the sole and 
 separate use of the wife, before the Act of 1848, carries 
 with it some presumption that the debt belongs to the 
 wife.^ 
 
 § 91. Still the question of her ownership is to be deter- 
 mined on the sufficiency of proof, as in other cases. The 
 proof by her must be clear and satisfactory, sufficient to re- 
 pel all adverse presumptions. But it is not required that 
 her case must be made so clear that there must not be a 
 doubt, and if a doubt exist, it must operate affirmatively to 
 induce a verdict against her.* Her mere possession of 
 money is held to be no evidence of her title to it for the 
 purpose of the statute,' and says Woodward, J. :^ " A mere 
 gift of money to a wife is not a settlement of it as her sepa- 
 rate estate, for it may be for safe keeping and deposit, 
 without any intention to divest the husband's title." This, 
 however, does not seem so clear, as a gift to a wife would 
 necessarily import that the husband intended to part with 
 his title. A gift to her would not be made without such in- 
 tention. The learned judge probably intended by the term 
 gift a mere handing over to the wife, or placing in her care. 
 
 § 92. The mere possession by the husband of property 
 
 ' Lyon ». Eoberts, 34 Leg. Int. 356. ^ Pai-vin u. Capewell, 9 Wr. 89 ; 
 
 ^ Hoar V. Axe, 10 H. 381. Bachman w. Killinger, 5 P. F. S. 
 
 ' Keil 4). Wolf, 7 Barr 424. 414. 
 
 * TripnerB. Abrahams, 11 Wr. 220; « Parvin v. Capewell, 9 Wr. 93. 
 Flick u. Devries, 14 Wr. 266. 
 
HER RIGHTS OF PROPERTY. 89 
 
 which has accrued to his wife since the Act of 1848 is not 
 proof that the title has passed from her to him. After it 
 has been shown that the title thus accrued to her, the pre- 
 sumption is that it continued hers, and it lies upon one 
 who asserts it to be the property of the husband to prove a 
 transmission of the title, either by gift or contract for value.^ 
 The rule in Twyne's case (that, as against creditors, exclu- 
 sive possession must accompany a gift or sale of chattels) 
 cannot, in the nature of things, be applied to a wife's goods 
 in favor of her husband's creditors, without either compel- 
 ling a separation or rendering the statute inoperative. " He 
 may ride in her carriage, eat at her table, sleep in her bed, 
 and live in a house filled with her furniture, without making 
 what he uses liable to be seized under an execution issued 
 against him."^ " Between strangers, open, visible, notori- 
 ous, and exclusive possession is the test of title in all cases 
 where the right of creditors is involved. But this is not 
 possible with reference to the personal goods of a married 
 woman. She cannot have or use her property exclusively, 
 unless she lives apart from her husband. It was not the 
 intention of the Legislature to compel a separation in order 
 to save the wife's rights ; but if the rule of exclusive pos- 
 session were adopted, the statute would be inoperative, as 
 long as they live together."^ 
 
 § 93. But where, since the Act of 1848, the wife bought a 
 horse in another State, in which the common law as to hus- 
 band and wife prevailed, to be paid for out of her share of her 
 father's estate in Pennsylvania, and her note for the purchase- 
 
 1 Grabill v. Moyei-, 9 "Wr. 533 ; ^ Keeney v. Good, 9 H. 349, per 
 
 Bachman v. Killinger, 5 P. F. S. Black, C. J. ; Manderbach v. Mock, 
 
 414 ; Bergey's Appeal, 10 P. F. S. 5 G. 43. 
 
 408 ; Young's Estate, 15 P. F. S. 101 ; " Gamber v. Gamber, 6 H. 363, per 
 
 Musser v. Gardner, 16 P. F. S. 242; Black, C. J. 
 Barncord v. Kuhn, 12 C. 383 ; Hoar 
 V. Axe, 10 H. 381. 
 
90 THE LAW OF MARRIED WOMEN. 
 
 money was taken to the vendor by her husband, and the horse 
 delivered to him without his having waived his marital rights, 
 and he agreed that the horse should be his wife's property, 
 and the horse, being in his possession in Pennsylvania, was 
 sold under execution against the husband, to the creditor, and 
 the wife afterwards paid the note from her separate estate, it 
 was held that the horse became the property of the hus- 
 band on its delivery to him, and was liable to be seized for 
 his debt.-^ 
 
 § 94. A married woman seeking specific performance of 
 a contract for the exchange of real estate must set out her 
 title to that which she alleges to be her separate estate 
 clearly, and if it be derived from settlements upon her by 
 the husband, the bill should aver his ability to make a valid 
 settlement of his estate upon her, so as to protect it in her 
 hands against his creditors ; his freedom from debt when 
 the settlements were made ; w^hat estate he possessed at 
 that time, so that the reasonableness of the settlements may 
 appear. There must be a full and clear presentation of a 
 state of facts which places the wife's right to a separate 
 estate beyond doubt.^ 
 
 § 95. But this stringent rule as applied to contests be- 
 tween creditors and the wife of the debtor, as to property 
 claimed by her, does not apply to a case where a daughter 
 endeavors to charge her father as administrator of her 
 mother Avith property that the daughter claims to have 
 come into his hands as such administrator. The reasons for 
 the rigid rule do not exist in this case, and the ordinary 
 rule as to weight of evidence and degree of proof applies.* 
 
 ' Davis V. Zimmerman, 17 P. F. S. ^ Freeman v. Stokes, 34 L. Int. 248. 
 70. ' Sawtelle's Ap., 34 Leg. Int. 349. 
 
HER RIGHTS OF PROPERTY. 
 
 91 
 
 Having no Separate Estate, cannot Acquire Property upon 
 her personal Credit as against her Husband's Creditors. 
 
 § 96. A married woman, having no separate property of 
 her own, cannot acquire property upon her personal credit, 
 as against her husband's creditors.^ Hence if a married 
 woman purchase real estate and give a mortgage for the 
 whole purchase-money, the property would not be protected 
 from her husband's creditors.^ " To suffer a wife to purchase 
 upon credit," says Agnew, J., "is to open a wide door 
 for fraud. Its effect is to throw upon the creditors the bur- 
 den of proving whose funds afterwards entered into the pay- 
 ment. For starting with title founded on her credit, she 
 can stand upon it until the husband's means can be shown 
 to enter into the purchase."^ She cannot, therefore, assume 
 title to lands by a mere agreement to purchase, and apply- 
 ing to their payment the products of the land, and the 
 labor of her husband, herself, and their children.* 
 
 1 Hallowell v. Horter, 11 C. 375 ; 
 Baringer v. Stever, 13 Wr. 129; 
 Robinson v. Wallace, 3 Wr. 129 ; 
 Hoffman v. Toner, 13 Wr. 231 ; Bu- 
 eher v. Ream, 18 P. F. S. 421 ; Speak- 
 man's Appeal, 21 P. F. S. 25. 
 
 The case of Manderbach v. Mock, 
 5 C. 43, seems to be at variance with 
 the rule as here stated, and now 
 apparently settled. In that case, a 
 married woman having no separate 
 estate purchased horses and car- 
 riages of her father upon her own 
 personal credit, as her separate pro- 
 perty, rented a stable, and carried on 
 the business of a livery-stable for her- 
 self, in her own name. Her husband, 
 who was insolvent, and who had for- 
 merly been in that business, ^serving 
 her in the capacity of ostler, but the 
 transaction being a bonajide one ; the 
 property was held to be hers, and 
 protected from her husband's credit- 
 ors by the Act of 1848. The Court, 
 
 Woodward, J., say : " Such a case is 
 clearly within the protection of the 
 Married Woman's Act of 1848. It 
 was quite competent for her father to 
 sell on long credit, or to give her his 
 stock of horses and carriages, where- 
 by she might carry on the business 
 to which her husband and children 
 were accustomed ; and by such means 
 to provide a support for them. It was 
 for such purposes that the Act of 
 1848 qualiiied married women to hold 
 separate property ; and the Act does 
 not require her use and possession of 
 the property to be exclusive of her 
 husband." In Baringer v. Stiver, 13 
 Wr. 132, Agnew, J., doubts whether 
 this case " did not overstep the verge 
 somewhat." 
 
 2 Baringer v. Stiver, 13 Wr. 129. 
 
 ' Ibid. 
 
 * Fry and Wife v. Ray, 34 Leg. Int. 
 214. 
 
92 THE LAW OF MARRIED WOMEN. 
 
 § 97. But where a lot of ground was conveyed to a mar- 
 ried woman and another person, since the Act of 1848, and 
 the entire purchase money secured upon the premises by a 
 mortgage in which the husband joined, and, after the pur- 
 chase, he improved and for some time occupied a shop 
 upon the lot, as his place of business, but pai& no part of 
 the purchase money ; all that was paid having been paid 
 out of the rents of the shop, which the husband had removed 
 from, and was rented by the wife to third parties ; and it 
 appeared that the husband was not in debt at the time of 
 the conveyance to his wife ; and there was no evidence that 
 he then contemplated contracting debts ; and the rents were 
 attached by his creditors for a debt contracted seven years 
 after the conveyance to the wife ; it was held that the title 
 to the property vested in the wife, on the ground that the 
 husband did not pay the purchase money, and if he had 
 paid it, this would have raised no equity in him, as it was 
 quite competent for him, at the time of the conveyance to 
 his wife, to make a settlement upon her, effective not only 
 against himself, but also subsequent creditors, not intended 
 to be defrauded ; and it being well settled that if a husband 
 purchase land, and pay for it, and have the deed made to 
 his wife, there is no resulting trust in his favor, as there 
 would be in the case of strangers ; and if in any part, or in 
 any sense, the property were a gift from the husband, it was 
 such a gift as he had a right to make.^ 
 
 § 98. The gift of a stock of goods by a brother to a sister, 
 a, married woman, requesting her, out of the proceeds, to 
 pay off some of his outstanding notes, is a gift and not a 
 sale of the goods ; and where the sister afterwards carried 
 on business in her own name with these goods, and they 
 were levied on for the debt of the husband, it was held that 
 
 1 Goff V. Nuttall, 8 Wr. 78. 
 
HER EIGHTS OP PROPERTY. 93 
 
 the goods belonged to the sister, and were not liable for the 
 husband's debt.'' 
 
 § 99. And where a wife who had no separate estate pur- 
 chased the real estate of her husband at sheriff's sale, and 
 paid for it by borrowing the money from strangers, it was 
 held, in a contest between the heir of the wife, after her 
 death, and the second wife of the husband, after his death, 
 that although the title of the first wife would not be good as 
 against the creditors of her husband, yet it was good as 
 against the husband himself, or his second wife.^ 
 
 May Acquire Property upon the Credit of her Separate Estate. 
 
 § 100. Property acquired by the wife upon the credit of 
 her separate estate, and the earnings and products derived 
 from the management of her own estate, are hers, and pro- 
 tected from her husband's creditors.^ Thus a married 
 woman, not &feme sole trader, having a store of goods in her 
 own right, can trade with them, and with the proceeds of 
 sale buy other goods to be held and traded with, exempt 
 from seizure for her husband's debts.* So where a father 
 lent money to a married daughter, and it was secured by 
 bond executed by the husband alone, and a mortgage by 
 both on the daughter's separate real estate, she keeping her 
 separate account in bank, and bought goods with the money, 
 and, with her husband's assent, opened a store in her own 
 name, which she continued to keep, selling her goods, and 
 paying for others with the proceeds, and occasionally buying 
 on short credit, the goods were held to be hers, and pro- 
 tected from her husband's credit or s.*^ 
 
 1 Eeigel B. Wooley, 1 Weekly Notes S. 153; Bucher v. Ream, 18 P. F. 
 310. S. 421 ; Seeds v. Kahler, 26 P. P. 
 
 2 Bowser v. Bowser, 1 Norris 57. S. 262 ; Rush v. Voiight, 5 P. F. S. 
 
 3 Brown v. Pendleton, 10 P. P. S. 437. 
 
 419 ; Silven's Bxrs. v. Porter, 24 P. * Wieman v. Anderson, 6 Wr. 311 ; 
 F. S. 448 ; Wieman v. Anderson, 6 Welch v. Kline, 7 P. P. S. 428. 
 Wr. 311 ; Kepler v. Davis, 30 P. F. ^ Brown v. Pendleton, supra. 
 
94 THE LAW OF MARRIED WOMEN. 
 
 § 101. The Act of 1848 declares that property which ac- 
 crues to a married woman shall be "owned, used, and enjoy- 
 ed" by her as her separate property. The use and enjoyment 
 here referred to must be such as are consistent with the 
 nature and kind of property. A store of liquors and segars 
 cannot be used and enjoyed in the same manner as household 
 furniture, or a dwelling house. They are merchandise, and it 
 is the nature of merchandise to be sold and exchanged. When, 
 therefore, the statute authorizes married women to own, 
 use, and enjoy merchandise as their separate property, it 
 legalizes trade by them. It makes them merchants.-' And 
 it is the settled rule that the ownership of property carries 
 with it the ownership of the products and fruits of that 
 property.^ In accordance therewith, it is held that where 
 a married woman was the clear and undisputed owner of 
 a farm, and carried on the business thereon, even though 
 assisted by her husband and their children, she was entitled 
 to its products.^ 
 
 § 102. Where real estate was purchased by a married 
 woman, and the cash payment on account of the purchase 
 money was made at the time of the purchase, with money 
 given her, and did not come from the husband, or belong to 
 him, and, for the balance of the purchase money, the pro- 
 missory notes of the wife, secured by a mortgage upon 
 the premises, made by the husband and wife, were given, 
 and it appeared that before the second and oidy other 
 payment was made, the wife had much more than money 
 enough therefor, not dei'ived from the husband, it was held 
 that the purchase was not in fraud of his creditors, and the 
 title vested in her.* 
 
 1 Wieman v. Anderson, 6 Wr. 311, Silven'sExrs.u. Porter,24P.F.S.448. 
 
 per Woodward, J. ■' Rush v. Vought, supra ; Musser 
 
 « Rush V. Vought, 5 P. F. S. 437 ; <;. Gardner, 16 P. P. S. 242. 
 
 Musser v. Gardner, 16 P. F. S. 242 ; ' Conrad i'. Shomo, 8 Wr. 193. 
 
HER RIGHTS OF PROPERTY. 
 
 95 
 
 Earnings of Wife. 
 
 § 103. It is property in the strict sense of the term that 
 the Legislature intended to protect by the Act of 1848. 
 There is no room for an implication that the earnings, of a 
 wife, the result of her skill, credit, or industry, are to have 
 a different direction and a different ownership Since the Act 
 from what they had before. They therefore belong to the hus- 
 band.-' So property purchased by a wife and paid for in her 
 earnings and savings is her husband's, as he is entitled to 
 her person and labor, and the benefits of her industry and 
 economy.^ And property purchased and paid for with the 
 joint earnings of husband and wife belongs to the husband,'^ 
 unless earned in the management of her separate property.* 
 By the Act of 3d April, 1872 (P. L. 35),= however, the sep- 
 
 1 Robinson v. Wallace, 3 Wr. 129, 
 per Thompson, J. 
 
 2 Raybold v. Raybold, 8 H. 308 
 Hallowell v. Horter, 11 C. 375 
 Bueher v. Beam, 18 P. F. S. 421 
 Speakman's Appeal, 21 P. P. S. 25 
 Kepler v. Davis, 30 P. P. S. 153. 
 
 3 Hallowell v. Horter, 11 C. 375. 
 
 * Rush V. Vought, 5 P. F. S. 437 ; 
 Musser u. Gardner, 16 P. F. S. 242 ; 
 Buoher v. Ream, 18 P. F. S. 421 ; Kep- 
 ler V. Davis, supra. 
 
 5 The Act is as follows: "Seel. The 
 separate earnings of any married 
 woman of the State of Pennsylvania, 
 whether said earnings shall be as 
 wages for labor, salary, property, 
 business, or otherwise, shall accrue 
 to and inure to the separate benefit and 
 use of said married woman, and be 
 under the control of such married wo- 
 man, independently of her husband, 
 and so as not to be subject to any legal 
 claim of such husband, or to the 
 claims of any creditor or creditors of 
 such husband, the same as if such 
 
 married woman were a feme sole: 
 Provided, that in any suit at law or 
 in equity, in which the ownership of 
 such property shall be in dispute, the 
 person claiming such property, un- 
 der this Act, shall be compelled, in 
 the first instance, to show title and 
 ownership in the same. Sec. 2. To 
 prevent any fraudulent practices 
 under this Act, before any married 
 woman shall be entitled to its bene- 
 fits, she shall first present her peti- 
 tion, under oath or affirmation, to the 
 Court of Common Pleas of the city or 
 county where she resides, stating her 
 intention of thereafter claiming the 
 benefits of this Act ; whereupon the 
 said Court shall direct her petition 
 aforesaid to be marked filed, and to 
 be recorded in the office for recording 
 deeds for such city or county, and 
 such record shall be conclusive evi- 
 dence of the right of such married 
 woman to the benefit of the first sec- 
 tion of this Act." 
 
96 THE LAW OF MARRIED WOMEN. 
 
 arate earnings of a married woman are hers, provided she 
 present her petition, under oath or affirmation, to the Court 
 of Common Pleas of the city or county where she resides, 
 stating her intention thereafter of claiming the benefits of 
 the Act, and, after the petition is there filed, she have it re- 
 corded in the office of the recorder of deeds for the city or 
 county. And the property of a married woman protected by 
 the Act, purchased or acquired by such earnings, would, of 
 course, belong to her. Before the Act of 1848, if a husband 
 deserted his wife and ceased to perform his marital duties, 
 the acquisitions of property made by the wife during such 
 desertion were her separate estate, and she could dispose of 
 them by will or otherwise.^ 
 
 § 104. Thus it appears that in case of a purchase after 
 marriage by a wife, the burden is upon her to prove dis- 
 tinctly that the purchase money was paid with funds which 
 were not furnished by her husband ; that in the absence of 
 such proof the presumption is violent that he furnished the 
 means of payment ; that when she has no separate estate 
 she can acquire no property with her earnings during cover- 
 ture ; and that her earnings, unless secured to her under the 
 Act of 3d April, 1872 (P. L. 35), are her husband's ; and if 
 she purchase with borrowed money, or on credit, the property 
 belongs, as against his creditors, to him.^ But it is other- 
 wise as to her earnings, or purchases on credit, or with bor- 
 rowed money, where she has separate property of her own. 
 and her earnings and purchases are connected with the 
 management of her property. 
 
 Where her Title is Clear, Creditors of Husband will he Re- 
 strained from Selling her Propert// for his Debt. 
 
 § 105. Where the title of the wife is undisputed, a creditor 
 of the husband may be restrained by injunction from levy- 
 
 ' Starrett w. Wynn, 17 S &. R. » Kepler v. Davis, 30 P. F. S. 153. 
 130; Spier's Appeal, 2 C. 233. 
 
HEB RIGHTS OF PROPERTY. 97 
 
 ing upon and selling her real estate for the husband's debt/ 
 All property of a debtor, however, not expressly exempt, 
 is liable to be taken in execution, in satisfaction of his 
 debts. Whenever, therefore, an interest i§ alleged, the 
 execution, as a general rule, is allowed to go, and the ques- 
 tion of interest is afterwards tried on the title obtained at 
 the sale, and if the debtor has no interest in the property 
 sold, no title passes. But, as we have seen, the Act of 1848 
 provides that the property of a married woman shall not 
 be subject to levy and execution for the debts and liabilities 
 of her husband; and the Act of 1850 expressly exempts 
 her property from levy and sale for his debt, during 
 her life, on account of any interest he may have as 
 tenant by the curtesy. Such levy and sale would, there- 
 fore, be contrary to law, and would be restrained by injunc- 
 tion.^ But where the title of the wife is disputed, the 
 creditor of the husband has a right to proceed against the 
 property to test her title. He has an undoubted right to 
 seU whatever interest he believes the husband has in the 
 property, and it would be error to enjoin against the cred- 
 itor's execution.^ 
 
 Reduction of Wifes CJioses in Action into Possession hy Husband. 
 
 § 106. The law as to reduction of the wife's choses in 
 action into possession by the husband is not of the same 
 importance at the present A&y, in Pennsylvania, that it was 
 before the Act of 11th April, 1848, as that Act has, by 
 securing the property of married women to them as their 
 own, deprived the husband of the right of reducing such 
 choses into his possession, even in cases where the right 
 existed at the time Of the passage of the Act, and the same 
 
 ' Hunter's Appeal, 4 Wr. 194 ; Ly- Appeal, supra. See Ross v. Lynch, 
 
 on's Appeal, 11 P. F. S. 15 ; Wieman 2 Pitts. 472. 
 
 «. Anderson, 6 Wr. 317. ' Winch's Appeal, 11 P. P. S. 
 
 'Hunter's Appeal, ■supra; Lyon's 426. 
 
 7 
 
98 THE LAW OP MARRIED WOMEN. 
 
 choses in action still exist. The Act did not divest any 
 interest of a husband vested in him when the Act was 
 passed. It did not take away his right to her personalty 
 not in action, acquired before the enactment ; nor his life 
 estate, or curtesy initiate in lands of which she was pre- 
 viously seized. But the marital right of the husband over 
 his wife's choses in action was not an interest in them. It 
 was no more than succession to her dominion. He had not 
 even a qualified property; nothing more than a naked 
 power. No interest in the chose vested in him until he had 
 exercised his power by applying it to his own use. And 
 having no vested interest or right of property, the Act, 
 therefore, took away his dominion over his wife's choses in 
 action possessed by her when the Act was passed.^ But a 
 question may still arise as to whether the husband had, in 
 law, actually reduced his wife's choses in action into pos- 
 session prior to the Act of 1848. If he has done so, such 
 choses are beyond the power of the wife; but if he has not, 
 though he may have disposed of them in a qualified manner, 
 they are still hers. What constitutes, at common law, 
 a reduction into possession, by the husband, of such 
 choses in action, may even yet, therefore, be a question of 
 importance. 
 
 § 107. The common law gave to the husband an absolute 
 right to his wife's choses in action if he reduced them to his 
 possession during coverture. The receipt of them by him was 
 presumed to be a reduction to his possession, and this was 
 a presumption which could be overthrown only by proof of 
 a positive, precise, clear and consistent intention to the con- 
 trary existing at the time of receiving them. But the law 
 imposed no obligation upon him to reduce them to his pos- 
 session. He could waive this right, and receive the choses in 
 
 ^ Mellinger's Admr. v. Bausmau's Trustee, 9 Wr. 528. 
 
HER EIGHTS OF PROPERTY. 99 
 
 action for the benefit of, and in trust for, his wife. The pro- 
 perty must come under his actual control as husband, or the 
 wife, instead of the personal rej^resentative of the husband, 
 took as survivor.-"^ Conversion is not reduction to possession, 
 but only evidence of it. Conversion may therefore be ex- 
 plained by other evidence negativing the intention of the 
 chose having been reduced to possession in such manner as to 
 transfer title to the husband.^ Thus, if at the time of re- 
 ducing the wife's money or choses in action into possession, 
 or afterwards, the husband make declarations clearly evin- 
 cive of the intent at the moment of reduction to possession 
 to establish the relation of trustee for the wife, such declar- 
 ations are sufficient to repel the presumption of personal 
 acquisition by him, and establish the trust relationship for 
 the wife.'^ They are evidence as to the fact of conversion 
 alone, and not of a contract inter partes} So, where a hus- 
 band had received his wife's share of her father's estate, 
 and it appeared that he frequently, down to the time of his 
 death, several years afterwards, declared that he held the 
 money for her children, to be paid after his death, it was 
 held that he held the money in trust for the children.^ But 
 while a husband's disclaimer of conversion to his own use, 
 at the time of reducing his wife's choses in action to posses- 
 sion, may be established by proof of his subsequent admis- 
 sions, the admissions must appear to have been deliberate, 
 positive, precise, clear, and consistent with each other, not 
 inconsiderate, vague, or discrepant.^ Where, however, the 
 wife was permitted by her husband to receive her money 
 and lend it, and he himself became a borrower, neither he 
 nor his creditors claiming through him, and who, for any- 
 
 1 Meyer's Appeal, 27 P. F. S. 484. « Dellinger's Appeal, 21 P. P. S. 
 ^ Meyer's Appeal, supra. 425. 
 
 2 Meyer's Appeal, supra; Goehen- " In re Gray's Estate, 1 Barr 327 ; 
 aur's Estate, 11 H. 463 ; Jehnsteu v. Johnston v. Johnston, supra. See 
 Johnston, 7 C. 453. Gochenaur's Estate, 11 H. 463. 
 
 * Johnston v. Johnston, supra. 
 
100 THE LAW OF MAREIED WOMEN. 
 
 thing that appeared, became creditors after the loan , was 
 made, could object that the money was not hers.-' 
 
 § 108. The share due to a wife from her father's estate, 
 paid to her after the passage of the Act of 1848, accrues to 
 her under it, and entitles her to the benefit of its provi- 
 sions, though the father died before it became a law ; and 
 the husband's receipt of the money would not be such a re- 
 duction of his wife's choses in action for his use as would 
 render his note therefor void, inasmuch as a contrary inten- 
 tion was evidenced by his giving the note for the money re- 
 ceived, and he was under no obligation to use his marital 
 rights therein for the benefit of his creditors.^ And where 
 a wife, having real and personal property prior to the Act 
 of 1848, loaned money to her husband, he giving her at the 
 time a certificate stating that he had borrowed the sum from 
 her, for which he promised to pay her interest annually, it 
 was held that although the certificate was destitute of force 
 as a contract of the husband's to repay his wife the sum 
 loaned him, yet it furnished sufficient evidence of his deter- 
 mination not to assert a title to the money thus actually 
 reduced to his possession, and that he held it as trustee for 
 her.^ So where property was, prior to that Act, purchased 
 with the money or created by the labor and industr}^ of the 
 wife, ihou^ primd facie it would have been subject to the 
 marital rights of the husband, yet he might consent that it 
 should be her property, to be held as her separate estate, 
 and if he did so, it was fi'eed from his dominion.* And 
 where the wife was the meritorious cause of action, as in 
 the case of a bond to her dum sola, or a legacy, and the hus- 
 band joined her in the suit, she took by survivorship, and 
 for her own use, although there might not be assets with- 
 out this money for the payment of debts or legacies.^ So 
 
 ' Kutz's Appeal, 4 Wr. 95. '' Hind's Estate, 5 Wh. 138. 
 
 '■^ Mellinger's Admr. v. Bausman's * Rogers v. Fales, 5 BaiT 157. 
 Trustee, 9 Wr. 522. « Gibson v. Todd, 1 R. 454. 
 
HER RIGHTS OF PROPERTY. 101 
 
 where land was conveyed to a trustee before the Act of 
 1848, in satisfaction of a legacy due to a married woman, 
 the grantee acting under a power of attorney from her, and 
 the husband consenting that the legacy should be collected 
 under her authority, and for her sole use and benefit, it was 
 held that the trustee held the land in trust for the legatee, 
 and not for her husband ; that the right of the wife ceased 
 to be a mere chose in action, liable to be appropi'iated to his 
 own use, was converted into an ownership of land in the 
 wife, and the power of the husband to make it absolutely 
 his was gone.-^ And where, prior to the Act of 1848, the 
 wife elected, in the presence and with the assent of her hus- 
 band, to take land instead of money under a will, his subse- 
 quent entry into possession under the arrangement is to be 
 regarded as an entry under the title of the wife, and not 
 adverse to it, and upon his death, the wife or her heirs 
 would be entitled to the land.^ 
 
 § 109. But if after the husband had reduced his wife's 
 choses in action to his possession, for his own use, before 
 the Act of 1848, he should give a bond for the moneys to a 
 trustee for her, the bond would be voluntary, without con- 
 sideration, in fraud of creditors, and void as to them. The 
 moneys having become his own, as such were liable for his 
 debts, and could no more be given to his wife, as against his 
 creditors, though they came from her estate, than he could 
 give them to any other friend.^ 
 
 § 110. As to what constitutes, at common law, a reduc- 
 tion into possession by the husband of his wife's choses in 
 action, independently of their actual receipt by him to his 
 
 ' Davis V. Davis, 10 Wr. 346. See ^ Shallenberger v. Ashworth, 1 C. 
 Wike V. Aurandt, 12 Wr. 103 ; Cow- 152. 
 
 den V. Oyster, 14 Wr. 368. ^ Gioker's Admrs. v. Martin, 14 Wr. 
 
 138. 
 
102 THE LAW OF MAERIED WOMEN. 
 
 own use, it may be said in a general waj that any disposi- 
 tion of them which is substantially an assignment for a val- 
 uable consideration will bar her right. The assignee, how- 
 ever, must be a purchaser, else he will stand in the place of 
 the husband, and failing to reduce the chose into possession 
 in the lifetime of the husband, the wife's right will survive. 
 In other words, the husband may sell his wife's chose in 
 action, but cannot give it away freed from the incidents of 
 the marriage.^ Thus an assignment in discharge of a debt 
 is for a valuable consideration, but an assignment as a pledge 
 or collateral security is not.^ And it has been held that an 
 assignment by the husband under the insolvent laws, of his 
 wife's choses in action, defeats her right of survivorship, in 
 case he dies before they are reduced into possession.^ So 
 a deed by husband and wife conveying the wife's choses in 
 action to trustees for the benefit of the wife and her child, 
 though not a reduction of the choses in action into posses- 
 sion, yet passes, not only the interest of the husband, but 
 that of the wife also, to the trustees, upon the trusts 
 declared in the deed, in such manner that, upon the death 
 of the husband, the choses in action do not survive to the 
 wife, so as to entitle a subsequent husband to claim them 
 as her property.* 
 
 § 111. Where, before the Act of 1848, land was taken at 
 the valuation by the oldest son, under the intestate laws, 
 and he entered into a general recognizance for the payment 
 
 ^ Hartmau v. Dondel, 1 R. 281. right of survivorship ; and if the hus- 
 
 ^ Hartman I). Dondel, supra; Petrie band dies before the assignees have 
 
 V. Clarke, 11 S. & K. 377. reduced the property to possession, it 
 
 ' Riahwine v. Ileim, 1 Penna. R. will survive to the wife, for the as- 
 
 373. signees possess the same riglits as the 
 
 Chancellor Kent, however, says husband before the bankruptcy, and 
 
 that " A general assignment in bank- none other :" 2 Kent's Com. 138. 
 
 ruptcy, or under insolvent laws. But see note (6) to this page of the 
 
 passes the wife's property and her Commentaries. 
 
 ciioses in action, but subject to her * Accounts of Siter, 4 R. 467. 
 
HER EIGHTS OF PEOPERTY. 103 
 
 of the shares of the respective heiss, one of whom was a 
 married woman, a bond given to her husband at the same 
 time for the amount of her share was not such a reduction 
 into possession by the husband as to divest the right of his 
 wife surviving him.^ And where, prior to the Act of 1848, 
 an intestate died, leaving a widow and children, and there 
 was an inquisition in partition of his real estate, two of his 
 sons accepting the land at the valuation subject to the 
 widow's interest, payable to his heirs at her death, and she 
 died in 1872; and a daughter who married in 1838 died 
 in 1862, leaving her husband surviving, having made a 
 will giving to her brothers and sisters her share of the 
 money charged upon her father's real estate, and payable at 
 the death of her mother, upon her death, the husband 
 claimed the whole of his wife's share in the widow's dower, 
 and refused to recognize her wiU; it was held that the 
 wife's property was realty until converted into personalty by 
 the proceeding in partition; but the moment conversion 
 took place the proceeds came under the Act of 29 th March, 
 1832, section 48 (P. L. 48), which forbade its payment to the 
 husband without the written consent and separate exam- 
 ination and acknowledgn^ent of the wife ; and as that had 
 never taken place, the money never vested in the husband ; 
 that when the Act of 1848 took effect, the money was still 
 the wife's, and she had power to dispose of it by will subject 
 to the right of the husband under the Act of May 4th, 
 1855, to take his share against her will.^ So, prior to the 
 Act of 1848, a recognizance taken in the Orphans' Court for 
 the wife's share of land, in the name of the husband and 
 wife, not reduced into possession, nor disposed of by the 
 husband, would survive, on his death, to the wife ; and this 
 though there had been a divorce from the bond of matri- 
 mony on account of her adultery.^ 
 
 ' Addams v. Heffernan, 9 W. 530. ' Hamilton v. Hamilton, 2 S. & K. 
 
 ' Nissley v. Heisey, 28 P. F. S. 418. 491. 
 
104 THE LAW OF MARRIED WOMEN. 
 
 § 112. It may be said as to partition of land, that if made 
 between tenants in common who are married women, and re- 
 leases of their shares respectively made to the husbands, such 
 releases would not vest absolute estates in the husbands, but 
 only in trust for their wives.-^ And where the estate of an in- 
 testate had been valued in the manner prescribed by the in- 
 testate laws, prior to the Act of 1848, and the husband of one 
 of the heirs agreed to take it at the valuation, it was held that 
 the Orphans' Court had no power to vest his wife's share of 
 the estate in him, for his own use ; and if the court decreed 
 the estate to him in fee on. giving recognizance for the pay- 
 ment of the shares of the other heirs, the decree as respects 
 the wife's portion vests no title in him, but it belongs to 
 the wife.^ 
 
 § 113. And it may not be altogether out of place to ob- 
 serve here that before the Act of 1848, if husband and wife 
 joined in a sale and conveyance of her real estate, and 
 the husband received the purchase money, he received it as 
 his own, and the law raised no implied trust in favor of the 
 wife. And if the purchase money was applied to other real 
 estate conveyed to the husband, upon his death the wife had 
 no claim to such real estate.^ But this would be other- 
 wise as to such purchase money received since the passage 
 of that Act. And where husband and wife, since the Act 
 of 1848, convey her real estate, and take a mortgage to both 
 to secure payment of part of the purchase money, the mort- 
 gage is hers, and he cannot release the mortgaged premises 
 from the lien of the mortgage without her consent ;* nor 
 enter satisfaction upon the mortgage, on payment of it to 
 him.^ 
 
 • Weeks ». Haas, 3 W. & S. 520. ■• Trimble v. Reis, 1 Wr. 448. 
 
 ^ Fogelsonger v. Somerville, 6 S. & ' M'Kinney v. Hamilton, 1 P. F. S. 
 R. 267. 65. 
 
 ' Benedict v. Montgomery, 7 W. & 
 S. 238. 
 
HER RIGHTS OP PROPERTY. 105 
 
 § 114. Since the Act of 1848, where money is veceived 
 from the estate of the wife by her husband, the presump- 
 tion of law is that he received it for her use ; and in the 
 absence of any attending promise of repayment, his subse- 
 quent bond to secure her, made to a trustee, would be good 
 against his creditors. If he would make title in himself he 
 must prove a purchase or a gift.^ It is a general principle, 
 however, that where the wife permits her husband to re- 
 ceive the profits of her separate estate, and pai'ticularly where 
 they live together, and the expenses of housekeeping are 
 paid by him, the presumption is that it was the intention of 
 the wife to make a gift of the profits to the husband." 
 "And," says Tilghman, C. J., "there is great reason for this 
 presumption, because the husband, being in the receipt of 
 this money, may be induced to live at a greater expense 
 than he would otherwise have done, whereby the comforts 
 of his wife, as well as his own, are increased. To call him 
 to account, therefore, after the lapse of a number of years, 
 might be ruinous, and would certainly be unjust."^ 
 
 Tenancy ly the Curtesy. 
 
 § 115. The Act of 11th April, 1848, section 10, as we have 
 seen, provides, " that nothing contained in this Act shall be 
 deemed or taken to deprive the husband of his right as 
 tenant by the curtesy."* An estate by the curtesy is that 
 estate to which a man is by law entitled upon the death of 
 his wife, in the lands or tenements of which she was seized 
 during the marriage, in fee simple, or in fee tail, provided 
 he had issue by her born alive during the marriage, and 
 capable of inheriting her estate. In this case he shall, on 
 the death of his wife, hold the lands for his life, as tenant 
 
 '■ Gioker's Admr. v. Martin, 14 Wr. " M'Glinsey's Appeal, su'pra. 
 138. * AnU, p. 79, n. 3. 
 
 2 M'Glinsey's Appeal, 14 S. & R. 64. 
 
106 
 
 THE LAW OF MARRIED WOMEN. 
 
 by the curtesy of England.' But in Pennsylvania, by 
 statute, birth of issue is not necessary to the husband's 
 right as tenant by the curtesy, in all cases where the issue, 
 if any, would have inherited.^ At common law, upon mar- 
 riage, the husband becomes seized of a freehold in right of 
 his wife ; but after issue born, he has a freehold in his own 
 right f and as, in Pennsylvania, the birth of issue is dis- 
 pensed with, where the issue, if any, would have inherited, 
 it would seem that, in such case, the husband became pos- 
 sessed of a freehold estate in his own right, upon marriage.* 
 It is sometimes said that, at common law, a husband is ten- 
 ant by the curtesy initiate by the marriage, but there is no 
 curtesy, in any degree, at common law, before the birth of 
 issue. As it has become certain by the birth that he will, 
 in any event, be seized during his own life, he has a free- 
 hold in his own right, and is then tenant by the curtesy 
 initiate, and becomes tenant by the curtesy consummate 
 upon his wife's death.* The estate of the wife must be one 
 in possession. The husband, therefore, cannot be tenant by 
 the curtesy of his wife's estate in reversion or remainder, 
 unless the particular estate be ended during coverture.'^ 
 
 § 116. As a general proposition a husband may, at common 
 law, be tenant of a trust, even if executory in the wife, and 
 become such tenant whenever the wife, during the coverture, 
 is in possession of an equitable estate of inheritance, and 
 
 ' 1 Burrill's Law Diet., " Curtesy." shall take place, although there be no 
 
 1 Staph. Com. 246 ; 2 BI. 126. issue of the marriage, in all cases 
 
 ^ Act of 8th April, 1833, § ], Art. where the issue, if any, would have 
 
 3, P. L. 316. The provision occurs inherited." See Bank v. Stauffer, 10 
 
 in the Intestate Act, and is as follows: Barr. 398. 
 
 " Where such intestate shall leave a " Bank v. Stauffer, 10 Barr. 399 ; 2 
 
 husband he shall take the whole per- Kent Com. 130. 
 
 sonal estate, and the real estate shall '' See Clarke's Appeal, 29 P. P. S. 
 
 descend and pass as hereinafter pro- 376. 
 
 vided ; saving to the husband his ' Bank v. Stauffer, supra. 
 
 right as tenant by the curtesy, which ° Hitner v. Ege, II H. 305. 
 
HER RIGHTS OF PROPERTY. 107 
 
 has issue by the husband capable of that inheritance.^ In 
 Cochran v. O'Hern,^ the question is discussed by Mr. Justice 
 Rogers with some elaboration, whether the law was not 
 otherwise, where the property is conveyed to a trustee for 
 the sole and separate use of the wife in fee ; but without 
 deciding this point, the Court hold that where lands are con- 
 veyed to the wife for her separate and exclusive use, with a 
 clear and distinct expression that the husband is not to have 
 a life estate, or other interest, but the estate to be for the 
 wife and her heirs, a court of chancery will bar the husband 
 of his curtesy. And in Ege v. Medlar,^ the converse of this 
 proposition is held, to wit, that the husband is entitled to 
 curtesy, unless there is something in the grant which clearly 
 exhibits an -intent to exclude his right. 
 
 § 117. The interest which the husband took before the 
 Act of 1848 in his wife's real estate, during their joint lives, 
 he derived from the marital relation simply, but that which 
 he took, and may still take, upon her death, for his own 
 life, he acquires as tenant by the curtesy. We say may 
 still take, because although, if the wife die intestate, he is 
 entitled to his tenancy by the curtesy under the intestate 
 Act of 1833,* yet should the wife not die intestate, and he 
 should elect not to take under her will, then, under the Act 
 of 4th May, 1855, section 1 (P. L. 430),^ he "may, against 
 her will, elect to take such share and interest in her real 
 and personal estate as she can, when surviving, elect to 
 take against his will in his estates, or otherwise to take 
 only her real estate as tenant by the curtesy." He may 
 therefore choose not to take as tenant by the curtesy, but 
 to take the share and interest in her real and personal 
 
 1 Cochran u. O'Hern, 4 W. & S. 98 ; » Supra. 
 
 Ege V. Medlar, 1 Norris 100. * &ae post, p. 135. 
 
 ^ Supra. See Bigler v. Cloud, 2 H. ^ ^^a post, p. 133. 
 363. 
 
108 THE LAW OF MARRIED WOMEN. 
 
 estate mentioned, or he may forego this, and take his estate 
 by the curtesy in the whole of her real estate.^ 
 
 § 118. A parol gift of a lot of ground by a father to his 
 married daughter, accompanied by possession and valuable 
 improvements made by the husband at his own expense, 
 vests in him no estate in addition to the freehold which the 
 law allows him in right of his wife.^ 
 
 § 119. A married woman's real estate, acquired since the 
 passage of the Act of 1848, cannot be taken in execution 
 during her life for a debt of the husband, by reason of any 
 interest he has therein, under the provisions of that Act 
 itself. The Act protects the wife's interest, both as to title 
 and possession, the possession of the husband and wife 
 being identical, so that a recovery against him would pre- 
 vent the enjoyment of the estate by the wife ; and the 
 legislative enactment would be rendered almost useless if 
 its construction were that the wife must either turn her 
 husband out of doors or be turned out by his creditors.^ 
 The Act of 1848, section 6,* provides that the wife's pro- 
 perty " shall not be subject to levy and execution for the 
 debts or liabilities of her husband." But the subsequent Act ' 
 of 22d April, 1850, section 20 (P. L. 553), declares that the 
 true intent and meaning of that Act is, and shall be, that the 
 real estate of any married woman in this Commonwealth 
 shall not be subject to execution for any debt against her 
 husband, on account of any interest he may have or may 
 have had therein, as tenant by the curtesy, but the same 
 shall be exempt from levy and sale for such debt during the 
 life of the wife.^ And the Act of 1st April, 1863, section 
 
 ' Clarke's Appeal, 29 P. F. S. 376. true intent and meaning of the Act 
 
 ^ Ingham v. Crary, 1 Penn. 389. of Assembly to secure the rights of 
 
 ' McElfatrick v. Hicks, 9 H. 402. married women, passed the 11th day 
 
 * See section, ante, p. 79, n. 3. of April, 1848, is and hereafter shall 
 
 ^ The section is as follows : " The be, that the real estate of any married 
 
HER RIGHTS OF PROPERTY. 109 
 
 1 (P. L. 212), enacts that no judgment obtained against the 
 husband before or during marriage shall be levied, or be a 
 lien, upon the wife's real estate, or upon any interest the 
 husband may be entitled to as tenant by the curtesy.-' 
 And if the wife die before the husband, intestate, seized of 
 an estate of inheritance, although he will be entitled to 
 enjoy it during his life, in the same manner as a tenant by 
 the curtesy consummate at common law, yet during the 
 life of the wife he can neither sell, lease, charge, nor in any 
 way affect her real estate, having no present interest 
 therein, nor any future interest, except as distributee under 
 the intestate law.^ It may be observed here that the Act 
 of 1848 prevents' a purchaser at sheriff's sale of a husband's 
 interest in an estate held by entireties (that is, an estate 
 conveyed to husband and wife by words which would make 
 two other persons joint tenants), while the wife lives, from 
 recovering possession even for the life of the husband.^ 
 
 § 120. But in ejectment against the husband for land 
 claimed by his wife as her own, the husband should appear 
 and defend his possession and that of his .family, upon her 
 title, because if judgment be recovered against him, the 
 plaintiff would be entitled to the possession, notwithstand- 
 ing the wife's claim, inasmuch as, the husband being the 
 head of the family, a judgment against him, in such case, is 
 a judgment against him and all his family and servants (as 
 
 woman in the Commonwealth shall April, Anno Domini 1848, and the sup- 
 
 no't be subject to execution for any plements thereto, are hereby declared 
 
 debt against her husband on account to be that no judgments obtained 
 
 of any interest he may have or may against the husband of any married 
 
 have had therein, as tenant by the woman, before or during marriage, 
 
 curtesy ; but the same shall be ex- shall bind or be a lien upon her real 
 
 empt from levy and sale for such estate, or upon any interest the hn,s- 
 
 debt during the life of said wife." band may be entitled to therein as 
 
 'The section pfotides that "The tenant by the curtesy." 
 
 true intent and meaning of the Act of ^ Gamble's Estate, 1 Pars. 489. 
 
 Assembly to secure the rights of mar- ' McCurdy v. Canning, 1 P. F. S. 
 
 ried women, passed the 11th day of 39. 
 
110 THE LAW OF MARRIED WOMEN. 
 
 well as against all tenants under him who have entered 
 after the suit was brought). Still, the wife not having 
 been made a party, the judgment could not affect her title 
 to the land.-' If a husband should confess judgment iu 
 ejectment for his wife's land, she may have the judgment 
 set aside and a defence allowed.^ 
 
 § 121. The Act of 1848 does not divest the right of a 
 creditor of the husband who had commenced suit against 
 him before the passage of the Act, to have satisfaction out 
 of his estate in his wife's lands f for that Act, as we have 
 seen, does not take away any interest of the husband in 
 his wife's estate, vested in him when the Act was passed.* 
 And notwithstanding the foregoing Acts of 1848 and 1850, 
 the husband's interest in his wife's real estate is a vested 
 interest, upon which he may effect a valid insurance. By 
 the Act of 22d April, 1850, the Legislature has merely 
 declared that the wife's estate shall not be subject to 
 execution by reason of the husband's interest therein, 
 but shall be exempt from levy and sale during her life. 
 It is a mere stay of execution, not an annihilation of his 
 estate .° 
 
 § 122. The interest of a husband in his wife's land is 
 an incident of the marriage contract, and, before the Act of 
 1848, as much within his power as the absolute ownership 
 of her chattels, which he might have relinquished without 
 the intervention of trustees. Where, therefore, husband 
 and wife, without the intervention of trustees, agreed to 
 live separate, and he relinquished to her all his claim to her 
 estate (reserving the payment of an annual sum), it was 
 
 1 Johnson v. Fullerton, 8 Wr. 468. " Lefever u. Witmer, 10 Ban- 505. 
 
 ^ Lewis V. Brewster, 7 P. F. S. * See ante, p. 98. 
 413 ; Johnson v. FuUerton, 8 Wr. ^ Harris b. Insurance Co., 14 Wr. 
 
 469. 341 i Curry ». Botts, 3 P. F. S. 400. 
 
HEE RIGHTS OF PROPERTY. Ill 
 
 held that her land was not liable to the execution of a 
 creditor of the husband upon a judgment recovered subse- 
 quent to the agreement, and after the parties had been 
 notoriously separated for a number of years.^ The same 
 rule would undoubtedly apply since the Act of 1848, as to 
 the power of the husband to release to his wife his interest 
 in her estate. 
 
 § 123. Where a husband in 1861, by a post-nuptial 
 agreement, released all his right as tenant by the curtesy 
 in a tract of land belonging to his wife, and the land was 
 afterwards sold, she receiving the proceeds, and she after- 
 wards died, leaving a wiU, it was held that notwithstand- 
 ing the release, the husband could elect to take against her 
 will, under the Act of 4th May, 1855, and was entitled to 
 one-third of her personal property, which included the pro- 
 ceeds of sale of the tract of land.^ 
 
 § 124. But where a married woman mortgaged her real 
 estate, and the husband received out of the mortgage- 
 moneys a sum equal to or greater than the value of his 
 curtesy in the mortgaged premises, and after the death of 
 the wife the premises were sold under the mortgage, he 
 was held not to be entitled to curtesy in the residue after 
 payment of the mortgage. His curtesy was subordinate to 
 her rights as his creditor.^ 
 
 § 125. If a husband, with full knowledge of the property 
 passing by his wife's will, consents that her devisee should 
 enter under the will, and she so enters, and discharges the 
 duties imposed on her by the will (to wit : the keeping and 
 taking care of the husband) for the period of eight months, 
 
 ^ Bouslaugh V. Bouslaugh, 17 S. & ' Appeal of Shippen et al,, 33 Leg. 
 K. 361. Int. 367 ; s. c, 2 Weekly Notes 468. 
 
 ' Rice V. Rice, 2 Weekly Notes 672. 
 
112 
 
 THE LAW OF MAREIED WOMEN. 
 
 this would be such an election on the part of the husband as 
 would estop him from claiming otherwise than under the 
 will, and would bar his curtesy.^ In McBride's Estate/ it 
 was held that a husband had released his curtesy in his 
 wife's real estate in Pennsylvania, under the following cir- 
 cumstances : — By the laws of Minnesota, all property owned 
 by a married woman is held by her free from the debts of 
 her husband and to her sole and separate use, the same as 
 though she were a feme sole, but shall not be disposed of 
 by her without the consent of her husband. A married 
 woman domiciled in Minnesota, and owning real estate there 
 and in Pennsylvania, made a will disposing specifically of 
 her Pennsylvania property to her children. The will was 
 executed in Minnesota, under the hands and seals of the 
 wife and husband, the latter of whom, by the terms of the 
 will, consented to and approved the will; and the Court 
 observed, "the case, we think, does not need the confirma- 
 tion of the law of Minnesota." 
 
 Effect of Conveyance of Real Estate to Husband and Wife. 
 
 § 126. A conveyance of land to husband and wife creates 
 neither a tenancy in common nor a joint tenancy. Upon 
 the death of either, the survivor takes no new estate, but the 
 whole estate continues in such survivor.^ And this is not 
 affected by the Act of 1848.* So, a conveyance of land 
 to A and his wife for and during their natural lives, or the 
 life of the survivor, and after their decease, to the lawful 
 heirs of them, the said A and his wife, gives to the first 
 takers a joint estate in fee simple, and the whole estate to 
 the survivor in fee.*^ And an estate conveyed to a husband 
 for the joint benefit of himself and wife, and the survivor 
 
 ' Wise V. Khoades, 34 Leg. Int. ' Bates v. Seelay, 10 Wr. 249 ; Mar- 
 330. . tin V. Jackson, 3 C. 604. 
 
 2 31 P. F. S. 303. * Martin v. Jackson, supra. 
 
 ^ Auman v. Auman, 9 H. 343. 
 
HER EIGHTS OP PROPERTY. 113 
 
 without words limiting a trust for the separate use of the 
 wife, although it was provided that the husband should not 
 have power or authority to sell or dispose of the premises, 
 he yet has such a freehold interest in the whole estate 'as 
 would be a legitimate subject of execution.^ 
 
 1 Stoebler v. Knerr, 5 Watts 181, 
 
114 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER IX. 
 
 HER CAPACITY TO SUE AND BE SUED. 
 
 Her Capacity to Sue. 
 
 § 127. Before the Act of 1848, a married woman could 
 neither sue nor be sued on her contract made during cov- 
 erture.^ It was only when an action was brought on her 
 ante-nuptial contract that she could be joined as co-plaintifif 
 or defendant with her husband.^ And she was so joined 
 because, in case of the husband's death, the action must sur- 
 vive.^ But as the chattels of the wife, before the Act of 
 1848, became the property of the husband immediately upon 
 the marriage, an action for these must have been brought in 
 the name of the husband alone. Thus replevin could not 
 be maintained in the name of the husband and wife to 
 recover chattels the property of the wife before marriage, 
 unlawfully taken afterwards, but must have been in the 
 name of the husband alone.* So, before that Act, replevin 
 would not lie in their joint names for timber cut on their 
 joint propert}^, but only in the name of the husband, because, 
 by the act of severance from the freehold, the timber became 
 personal property, and, eo instanti, vested in the husband.^ 
 And so if the wife's money was lent by her or her husband, 
 or both, to a third party, before the Act of 1848, the hus- 
 band might sue since that Act, without joining the wife.® 
 
 § 128. At common law, if the wife be injured either in her 
 person or property, she cannot sue for redress without her 
 
 I Williams u. Coward, 1 Gr. 22. " Fairohild v. Chastelleus, 8 Watts 
 
 « Nutz V. Reutter, I Watts 229 ; Wil- 412 ; see Fairchild v. Chastelleux, 1 
 
 liams V. Coward, 1 Gr. 22. Barr 176. 
 
 ' AVilliams v. Coward, supra. ^ Hertzog t>. Hertzog, 5 C. 471. 
 ♦ Seibert v. M'llenry, 6 Watts 301. 
 
HEE CAPACITY TO SUE AND BE SUED. 115 
 
 husband's concurrence, and in his name as well as her own.^ 
 But in any case where she has a right to be heard, he nicay 
 be heard in her place, and this without a power of attorney.^ 
 
 § 129. Before the Act of 1848, it was laid down as a 
 general rule, that where the cause of action arose before the 
 marriage, the wife ought to be joined ; where it arose after 
 the marriage, she ought not, in personal actions generallj^, 
 to be joined, unless she is the meritorious cause of action, or 
 for an injury done to her personally. In real actions, or 
 mixed, she ought to be joined ; and where the husband has 
 not been in possession, and so no injury done to his pos- 
 session, she must be joined. Another ciiterion well estab- 
 lished was that where the action may survive to her, she 
 may be joined. Where it must necessarily survive to her, 
 she must be joined.^ The husband could not, during her 
 lifetime, maintain ejectment in his own name alone, for 
 lands, the title to which he claimed in right of his wife. 
 She must have been joined.* 
 
 § 130. The Act of 25th April, 1850, § 39 (P. L. 571),^ 
 provides that suits at law thereafter commenced concerning 
 or for the recovery of property belonging or secured to a 
 married woman by virtue of the Act of 11th April, 1848, 
 " may be brought in the names of such married woman and 
 her husband, to the use of the said manied woman ;" and 
 
 ' See Atkinson v. Rittenhouse, 5 perty, real, personal, or mixed, be- 
 Barr 103 ; Donaldson v. Maginnes, 4 longing or secured to any married 
 Y. 127 ; Perry v. Boileau, 10 S. & K. woman, by virtue of the provisions of 
 208. the Act relating to the rights of mar- 
 ^ Morris u. Garrison, 3 C. 228. ried women, passed the 11th day of 
 ^ Bratton v. Mitchell, 7 W. 115. April, 1848, may be brought in the 
 ' Bratton v. Mitchell, 7 W. 113. names of such married woman and 
 ^ The section enacts that " any suit her husband, to the use of the said 
 or suits at law hereafter to be com- married woman ; and a recovery in 
 menced in any of the courts of this such suit or suits shall be for the ex- 
 Commonwealth, touching or concern- elusive benefit of such married wo- 
 ing or for the recovery of any pro- man." 
 
116 THE LAW OF MARRIED WOMEN. 
 
 a recovery in such suits shall be for the exclusive benefit of 
 such married woman. As this Act provides that the suit 
 may be brought in the names of the husband and wife, for 
 the use of the wife, but does not expressly enjoin it, an 
 action by the wife alone was sustained since the passage of 
 the Act.^ And in an action by husband and wife, in right 
 of the wife, instituted before the passage of this Act, but 
 since that of 1848, the court intimate that the wife could, 
 if she chose, bring suit in her own name alone.^ But in 
 subsequent cases it has been determined that this Act was 
 intended to take away the separate action of either party, 
 and restore the common law rule, and that the suit for the 
 separate property of the wife should be brought in the 
 name of the husband and wife to the use of the wife.* 
 Husband and wife, however, cannot join in an "action for 
 slander of both husband and wife,* and the separate recovery 
 by a husband for slanderous words spoken of him and his 
 wife wiU not prevent a separate action by the wife with 
 her husband for the injury done to her by the same words. 
 For, slanderous words spoken of two or more give a sep- 
 arate cause of action to each. The injury is several, and 
 so must be the remedy.® 
 
 § 131. An action on a judgment obtained by husband and 
 wife, for a debt due to the husband in his own right, should, 
 after the death of the husband, be brought in the name of 
 the wife, as surviving plaintiff, and not in the name of the 
 administrator of the husband ; and if there be creditors of 
 the husband to be protected, the suit should be in her name 
 for the use of the executors or administrators of the hus- 
 band.^ 
 
 ' Sheidleu. Weishlee, 4H. 138. See ■> Ebersoll u. King, 3 Binn. 555; 
 
 Goodyear v. Rumbaugh, I H. 482. Bash «. Sommer, 8 H. 163. 
 
 '^ Goodyear w. Rumbaugh, 1 H. 480. ^ Bash v. Sommer, supra. 
 
 3 Keeney v. Good, 9 II. 356 ; Ritter " Gib.-^on v. Todd, 1 R. 454. 
 V. Ritter, 7 C. 400. 
 
HER CAPACITY TO SUE AND BE SUED. 117 
 
 § 132. The Act of 11th April, 1856, section 3 (P. L. 
 315),-^ gives to the wife her separate action to protect her 
 reputation, or recover her separate earnings and property 
 in these three cases, viz. : first, when he deserts or separates 
 himself from her ; second, when he neglects or refuses to 
 support her ; and third, when she has been divorced from 
 bed and board ; and in these cases, if the husband be the 
 defendant, the action shall be in the name of a next friend.^ 
 If an action be brought in the names . of the husband and 
 wife for defamation of character of the wife, the husband 
 cannot, by denying that he authorized the action, have it 
 discontinued, but his name may be stricken out, and the 
 cause proceeded with, under this Act, by the wife alone.^ 
 
 § 133. The common law regarding husband and wife as 
 one person excludes civil suits between them. A married 
 woman, therefore, cannot, by her next friend, maintain an 
 action of debt against her husband on a contract made 
 during coverture, nor can she under the Act of 11th April, 
 1848, or its supplements ; but if her husband had deserted 
 her, the action might perhaps lie under the Act of 1856.* 
 A wife, however, who deserts her husband without cause, 
 cannot sue in her own name for slander, under this Act, 
 even though the husband refuses or neglects to support her 
 during her separation.^ So where she has separated herself 
 from her husband without reasonable cause, she cannot, by 
 
 ' The section is as follows : " When- the action shall be in the name of 
 soever any husband shall have de- a next friend." 
 serted or separated himself from his " See Ritter v. Ritter, 7 C. 400. 
 wife, or neglected or refused to sup- ' Rangier v. Hammel, 1 Wr. 130 ; 
 port her, or she shall have been Smith v. Smith, 9 Wr. 403. See 
 divorced from his bed and board, it Little's Estate, 7 Phila. 495. 
 shall be lawful for her to protect her * Ritter v. Ritter, 7 C. 396 ; see 
 reputation by an action for slander or also Kutz's Appeal, 4 Wr. 90 ; Mil- 
 libel ; and she shall also have the ler v. Miller, 8 Wr. 170 ; Dougherty 
 right, by action, to recover her sepa- v. Snyder, 15 S. & R. 84 ; Towers v. 
 rate earnings or property : Provided, Hagner, 3 Wh. 59. 
 that if her husband be the defendant, ^ Smith v. Smith, 9 Wr. 403. 
 
118 THE LAW OF MARRIED WOMEN. 
 
 her next friend, maintain an action against Mm for her 
 separate property.' And she cannot, by her next friend, 
 maintain an action of covenant against her husband to re- 
 cover damages upon an ante-nuptial contract between them, 
 for permissive waste to her real estate, because unliquidated 
 damages of this description are not property within the 
 meaning of the Act.^ 
 
 § 134. Where slanderous charges against the wife are 
 originated by the husband, and published by the defendant, 
 by his contrivance, the husband and wife cannot maintain 
 an action for the slander, nor can the wife sue alone, where 
 the parties are living together.^ 
 
 § 135. Nonjoinder of husband with wife must be taken 
 advantage of by plea in abatement. The objection is not 
 available in arrest of judgment, or in error.* But it is other- 
 wise as to misjoinder of the wife.^ 
 
 To le Sued. 
 
 § 136. Before the Act of 1848, the wife could not be 
 joined with her husband as a defendant in an action founded 
 upon a contract or promise, express or implied, unless she 
 made the contract or promise, or did the act from which it 
 was to be implied, before coverture ; and in every such case 
 she must have been joined with her husband." The action 
 could riot have been maintained against both upon a promise 
 alleged to have been made by both during coverture ; for, 
 as to the wife, the promise was void, and therefore, in law, 
 was considered the promise of the husband alone, which 
 was not sufficient to support the action against the husband 
 
 1 May V. May, 12 P. P. S. 206. Perry v. Boileau, 10 S. & R. 208 ; see 
 
 2 Miller v. Miller, 8 Wr. 170. Rangier v. Hummel, 1 AVr. 133. 
 
 ' Tibbs V. Brown, 2 Gr. 39. * Seibert v. MeHenry, 6 Watts 302. 
 
 - Sheidle v. Weiehlee, 4 H. 134 ; ^ Nuj^ „_ Reutter, 1 Watts 232. 
 
HER CAPACITY TO SUE AND BE SUED. 119 
 
 and wife jointly.-^ And the law is the same since that Act, 
 except so far as it has been thereby, and by subsequent 
 Acts, expressly changed, or changed by the legal operation 
 and effect of these enactments. Thus, as we have seen in 
 treating of the wife's ability to bind herself or her estate 
 by her contracts, she may be joined with her husband in an 
 action for the recovery of debts contracted by her for 
 articles necessary for the support of the family of herself 
 and her husband.^ And so, whenever her separate estate is 
 liable for debts contracted by her on its account,^ and, of 
 course, she may be sued, whenever she may, by Act of 
 Assembly, bind herself, as upon refunding bonds and such 
 other instruments as she is authorized to execute, by the 
 Act of 11th April, 1856,* upon contracts for the purchase 
 of sewing machines, under the Act of 29th February, 1872,*' 
 and as feme sole trader." 
 
 § 137. Inasmuch as before the Act of 1848 the husband 
 was joined with his wife in suits for the recovery of ante- 
 nuptial debts of the wife's, because he was liable during 
 coverture for the payment of such debts,^ and by that Act 
 he is discharged from such liability, it would seem to follow 
 that he should not, since that Act, be joined with her in an 
 action for the recovery of those debts. And the same re- 
 mark applies to a power of attorney to confess judgment, 
 given by a feme sole. Yet marriage is not a revocation of 
 such a power, and at common law, after marriage, judgment 
 might be entered thereon against both husband and wife.^ 
 But it would seem to be otherwise since the Act of 1848. 
 
 1 Nutz V. Keutter, 1 Watts 233. « Post, p. 125, et seq. 
 
 ^ Ante, p. 47, et seq. ' Nutz v. Reatter, 1 Watts 233 ; ante, 
 
 ' Ante, p. 52, et seq. p. 43. 
 
 * Ante, p. 57. ^ Bneu v. Clark, 2 Barr 234. 
 
 ' Ante, p. 51. 
 
120 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER X. 
 
 HOW FAR HUSBAND AND WIFE MAY BE WITNESSES FOR OR AGAINST 
 
 EACH OTHER. 
 
 § 138. By the common law husband and wife are not 
 allowed to be witnesses for or against each other.^ The 
 reason of the rule is founded partly on their identity of 
 interest, and partly on a principle of public policy which 
 requires that the security and confidence of private life 
 should be protected even at the risk of an occasional failure 
 of justice.^ And the rule has been construed by the courts 
 to mean that whatever had come to the knowledge of either 
 party by means of the hallowed confidence which marriage 
 implies could not afterwards be divulged in testimony, even 
 though the other party were dead.^ But by the Act of 
 15th April, 1869, section 1 (P. L. 30),* it is provided that no 
 interest nor policy of the law shall exclude a party or per- 
 son from being a witness in any civil proceeding, provided 
 the Act shall not alter the law as now declared and practiced 
 in the courts of this Commonwealth so as to aUow husband 
 and wife to testify against each other ; but the Act is not 
 
 ' 1 Bl. Com. 443 ; 1 Gi-eenleaf Ev. tify against each other, nor counsel to 
 
 334: Respub v. Gelvix, 2 Y. 1]5; testify to the confidential communi- 
 
 Hitner's Appeal, 4 P. P. S. 117. cation of his client; and this Act 
 
 ^ See Hituer's Appeal, SM^ra; 1 Bl. shall not apply to actions by or 
 
 Com. 443. against executors, administrators or 
 
 " Hitner's Appeal, supra. guardians ; nor where the assignee of 
 
 * The section provides as follows: the thing or contract in action may be 
 
 " No interest nor policy of law shall dead, excepting in issues and inquiries 
 
 exclude a party or person from being devisavii veJ non, and others, respect- 
 
 a witness in any civil proceeding : ing the right of such deceased owner, 
 
 ■P»-o!)i(Jed, this Act shall not alter the between parties claiming such right 
 
 law as now declared and practiced in by devolution on the death of such 
 
 the courts of this Commonwealth so owner." 
 as to allow husband and wife to tes- 
 
HOW FAR HUSBAND AND WIFE MAY BE WITNESSES. 121 
 
 to apply to actions by or against executors, administrators, 
 or guardians ; nor where the assignor of the thing or con- 
 tract in action is dead, excepting in issues and inquiries 
 devisavit vel non, and others respecting the right of such de- 
 ceased owner, between parties claiming such right by devo- 
 lution on the death of such owner. While the Act of 9 th 
 April, 1870, section 1 (P. L. 44), provides "that in all actions 
 or civil proceedings in any of the courts of this common- 
 wealth, brought by or against executors, administrators, or 
 guardians, or in actions where the assignor of the thing or 
 contract in action may be dead, no interest or policy of the 
 law shall exclude any party to the record from testifying to 
 matters occurring since the death of the person whose estate, 
 through a legal representative, is a party to the record." 
 And by the Act of 4th March, 1870, section 1 (P. L. 36), the 
 provisions of the Act of 1869 are " extended so as to allow 
 the testimony of either husband or wife to be given in his 
 or her own behalf, in any proceeding for divorce, in every 
 case where personal service of the subpoena is made on the 
 opposite party, or said party appears and defends." Under 
 the Act of 1869 husband and wife are competent witnesses 
 for but not against each other.^ And their competency to 
 testify for each other would seem oo-extensive with their 
 competency, respectively, to testify for themselves. In 
 Rowley v. M'Hugh (1 P. F. S. 269), the court, it is true, 
 say, " Under the sweeping provisions in the body of the 
 Act" — viz., " that no interest or policy of law shaU exclude 
 a party or person from being a witness in any civil proceed- 
 ing" — "it is clear that husband and wife would be compe- 
 tent witnesses for or against each other in any civil pro- 
 ceeding, if it were not for the restraining clause contained 
 in the proviso. Under it, husband and wife are not allowed 
 to testify against each other, and as this is the only restriction 
 
 ' Yeager ». Weaver, 14 P. F. 676 ; Dellinger's Appeal, 21 P. F. S. 
 S. 425 ; Cawley v. Wilson, 7 Phila. 425. 
 
122 THE LAW OF MARRIED WOMEN. 
 
 imposed, we have not power to add another." But this can- 
 not be strictly true, for there is a further restriction that the 
 Act shall not apply to actions by or against executors, &c., 
 and if the proposition of the court were true, then husband 
 and wife could testify for each other in actions by or against 
 executors, &c., which, according to Thompson, C. J., in 
 Diehl V. Bmig,^ they cannot do, except as to matters 
 occurring since the death of the person whose estate, 
 through a legal representative, is a party to the record. 
 Their competency to testify against each other is unaffected 
 by the Act, except, perhaps, if either calls the other to tes- 
 tify in his or her behalf, as may be done, they do so subject 
 to the peril that when once made a witness, the privilege of 
 not testifying against each other is waived, and the adverse 
 party may call and compel them to testify to all matters 
 pertinent to the issue,^ while the Act of 4th March, 1870, 
 enables either to testify against the other in proceedings for 
 divorce, where personal service of the subpoena is made on 
 the opposite party, or that party appears and defends. The 
 terms of the Act of 9th April, 1870, would seem sufficiently 
 general to enable both husband and wife, if parties to the 
 record, to testify against each other in actions and to mat^ 
 ters embraced in the Act. But this was not the purpose of 
 the Act. It was simply to enlarge the provisions of the 
 Act of 1869, so as to permit a party who would otherwise 
 have been excluded by the proviso of that Act to testify to 
 matters occurring since the death of the person whose 
 estate, through a legal representative, is a party to the 
 record.^ 
 
 § 139. Under the Act of 1869, by virtue of the clause 
 which provides that the "Act shall not alter the law as now 
 
 1 15 P. P. S. 320. 5 M'Bride's Appeal, 22 P. F. S. 
 
 2 Cawley v. Wilson, 7 Phila. 676 ; 480. 
 Yeager v. Weaver, 14 P. F. S. 425. 
 
HOW FAR HUSBAND AND WIFE MAY BE WITNESSES. 123 
 
 declared and practiced in the courts of this Commonwealth, 
 so as to allow husband and wife to testify against each 
 other," the husband is not a competent witness in support 
 of his own claim against the estate of his deceased wife, 
 before an auditor appointed to audit the account of her 
 executors.-^ And so the husband would be excluded by the 
 provision that the "Act shall not apply to actions by or 
 against executors," &c., the word " actions," as there used, 
 embracing civil proceedings, whatsoever their form, as well 
 as actions technically so called.^ And in ejectment against 
 the widow by the heirs of her husband claiming through 
 him, she would not be a competent witness for herself; for 
 though her interest was inseparable from that of her hus- 
 band in his lifetime, it became adverse to that of his heirs 
 when upon his death they set up a claim to the property.^ 
 In ejectment by husband and wife, in right of the wife, 
 for land sold under a judgment against the husband, and 
 claimed as the wife's, the wife is a competent witness for 
 the plaintiffs, as she would be called to testify in her own 
 behalf, and not against her husband. He would be but a 
 nominal party to the proceeding, and if he had any interest 
 in the event, it would be contingent, and on the side of the 
 wife.* So in replevin by the wife for her personal property 
 sold by the husband, he is no party, and the wife can testify 
 in her own behalf under the Act.^ And in ejectment by a 
 daughter grounded on a lost deed of gift from her deceased 
 father, she and her husband would be competent witnesses 
 as to what occurred since, but not before his death. ^ 
 
 § 140. In proceedings for divorce, though husband and 
 wife are made competent witnesses for themselves by the 
 
 ' M'Bride's Appeal, 22 P. F. S. * Rowley v. M'Hugh, 16 P. F. S. 
 480. ' 269. 
 
 ^ Gardner v. M'Lallen, 29 P. F. S. ^ Musser v. Gardner, 16 P. F. S. 
 403. 242. 
 
 3 Ibid. " Diehl V. Emig, 15 P. F. S. 320. 
 
124 
 
 THE LAW OF MARRIED WOMEN. 
 
 Act of 4th March, 1870 (P. L. 36), the court will not grant 
 a divorce upon the uncorroborated testimony of the libel- 
 lant, when contradicted by the respondent; and it seems 
 they would not do so in any event solely upon the testi- 
 mony of the parties to the suit, or of the libellant alone.^ 
 In these proceedings they cannot be made to testify against 
 themselves.^ 
 
 § 141. Where land conveyed to a wife was sold under a 
 mortgage given by herself and husband, in a contest be- 
 tween creditors of the husband in the distribution of the 
 proceeds, alleging that the property was his, the wife was 
 held to be a competent witness for the creditors, as she was 
 not testifying against her husband, but only to the truth as 
 regarded herself.^ And after the husband's death, when he 
 is not and cannot be answerable civilly or criminally, the 
 wife may be admitted to prove facts, or contracts, or trans- 
 actions in which her husband was a party, where such proof 
 is essential to the justice of the decision of cases between 
 other parties.* 
 
 1 Winter «. Winter, 7 Phila. 369 ; = MoGeary's Appeal, 22 P. F. S. 
 
 Stevenson v. Stevenson, 7 PhiJa. 386. 365. 
 
 ^ Bronson v. Bronson, 28 Leg. Int. * Chambers v. Spenoer, 5 Watts 
 
 180. 406. 
 
FEME SOLE TRADERS. 125 
 
 CHAPTER XI. 
 
 FEME SOLE TRADERS. 
 
 § 142. By the Act of 22d February, 1718, section 1 
 (1 Sm. 99),-' where any mariners or others are gone to sea, 
 leaving their wives at shopkeeping, or to work for their 
 livelihood at any other trade, in this State, all such wives 
 are declared to be feme sole traders, and are enabled to sue 
 and be sued, plead and be impleaded, at law, in any of the 
 courts of the State, during their husbands' natural lives, 
 without naming their husbands ; and when judgments are 
 given against the wives for any debts contracted, or sums 
 of money due from them, since their husbands left them, 
 executions shall issue against the goods and chattels in the 
 possession of the wives, or in the hands or possession of 
 others in trust for them, and not against the goods and 
 chattels of their husbands, unless it may appear to the 
 court where the executions are returnable that the wives 
 
 ^ The section provides, " That when left them, executions shall be awarded 
 
 any mariners or others are gone or against the goods and chattels in the 
 
 shall hereafter go to sea, leaving their possession of such wives, or in the 
 
 wives at shopkeeping, or to work for hands or possession of others in trust 
 
 their livelihood at any other trade in for them, and not against the goods 
 
 this province, all such wives shall be and chattels of their husbands, un- 
 
 deemed, adjudged, and taken, and are less it may appear to the court where 
 
 hereby declared to be, as feme sole those executions are returnable that 
 
 traders, and shall have ability, and such wives have, out of their separate 
 
 by this Act are enabled, to sue and stock, or profit of their trade, paid 
 
 be sued, plead and be impleaded at debts which were contracted by their 
 
 law, in any court or courts of this husbands, or laid out money for the 
 
 province, during their husbands' necessary support and maintenance 
 
 natural lives, without naming their of themselves and children ; then and 
 
 husbands in such suits, pleas, or in such case execution shall be levied 
 
 actions; and when judgments are upon the estate, real and personal, of 
 
 given against such wives for any such husbands, to the value so paid 
 
 debts contracted, or sums of money or laid out, and no more." 
 due from them, since their husbands 
 
126 THE LAW OF MARRIED WOMEN. 
 
 have, out of their separate stock or profit of their trade, 
 paid debts which were contracted by their husbands, or laid 
 out money for the necessary support and maintenance of 
 themselves and children, in which case execution shall be 
 levied upon the estate, real and personal, of the husbands, 
 to the value so paid or laid out, and no more. 
 
 § 143. By the Act of 4th May, 1855 (P. L. 430, sections 
 2, 4),^ whenever a husband, from drunkenness, profligacy, 
 or other cause, shall neglect or refuse to provide for his 
 wife, or shall desert her, she shall have all the rights and 
 privileges secured to &fe7ne sole trader under the Act of 22d 
 February, 1718, and be subject as therein provided, and 
 her property, real and pe,rsonal, howsoever acquired, shall 
 be subject to her free and absolute disposal during life, 
 or by will, without any liability to be interfered with or 
 obtained by her husband, and in case of her intestacy, shall 
 go to her next of kin, as if he were previously dead ; and 
 
 ' These sections enact as follows : — the circumstances aforesaid. She may 
 § 2. " Whensoever any husband, from present her petition to the Court of 
 drunkenness, profligacy, or other Common Pleas of the proper county, 
 cause, shall neffleot or refuse to pro- setting forth, under affidavit, the facts 
 vide for his wife, or shall desert her, which authorize her to act as afore- 
 she shall have all the rifjhts and pri- said, and if sustained by the testi- 
 vileges secured to a feme sole trader, mony of at least two respectable wit- 
 under the Act of 22d February, nesses, and the Court be satisfied of 
 1718, entitled, 'An Act concerning the justice and propriety of the appli- 
 feme sole traders,' and be subject as cation, said Court may, upon such 
 therein provided ; and her property, notice as they may direct, make a 
 real and personal, howsoever ac- decree and grant her a certificate, 
 quired, shall be subject to her free that she shall be authorized to act, 
 and absolute disposal during life, or have the power, and transact business 
 by will, without any liability to be as hereinbefore provided ; and such 
 interfered with or obtained by such certificate shall be conclusive evidence 
 husband, and in case of her intestacy, of her authority, until revoked by 
 shall go to her next of kin, as if he such Court for any failure on her 
 were previously dead." § 4. " That part to perform the duties by this Act 
 creditors, purchasers and others may made incumbent upon her, which 
 with certainty and safety transact may be ascertained upon the petition 
 business with a married woman under of any next friend of her children.' 
 
FEME SOLE TRADEES. 127 
 
 she may present her petition to the Court of Common Pleas 
 of the proper county, setting forth, under affidavit, the facts 
 which authorize her so to act, and if sustained by the testi- 
 mony of at least two respectable witnesses, and the Court 
 be satisfied of the justice and propriety of the application, 
 the Court may, upon such notice as they may direct, grant 
 her a certificate that she shall be authorized to .act, have 
 the power, and transact business as feme sole, and such cer- 
 tificate shall be conclusive evidence of her authority, until 
 revoked by the Court, for any failure on her part to perform 
 the duties made incumbent upon her by the Act, which may 
 be ascertained upon the petition of any next friend of her 
 children. 
 
 § 144. It is not necessary there should be a decree that 
 a wife is to be regarded as a feme sole trader to enable her 
 to hold property under the circumstances mentioned in the 
 2d section of the Act of 1855. When, therefore, a husband, 
 by reason of habits of drunkenness, profligacy, or other 
 cause, neglects to provide for his wife and family, and the 
 wife, by her labor, industry and frugality, provides for the 
 family, and accumulates property, she is entitled to claim 
 and hold it as her own, as if she were a feme sole trader, 
 against the husband, his creditors, and the whole world, 
 without having obtained such decree of the Court.^ But, 
 under the Act of 1855, it seems the rights and privileges of 
 a married woman, deserted by her husband, or left unpro- 
 vided for by him, are not exactly correlative to her liabili- 
 ties, the former being more extensive than the latter.^ And 
 a married woman who is deserted by her husband and 
 engages in business cannot be held liable as a feme sole 
 trader, unless she has been decreed such.^ 
 
 ' Black V. Frioker, 9 P. F. S. 13. ^ Cleaver v. Sheetz, 20 P. F. S. 498. 
 See Hyde v. Hesaer, 3 Phila. 508. ' Hentz v. Clawson, 34 Leg. Int. 5. 
 
128 
 
 THE LAW OP MAERIED WOMEN. 
 
 § 145. A married woman whose husband, by reason of 
 sickness, is unable to support her, is not thereby made a 
 feme sole trader within the meaning of the Act of 1855, 
 although she carries on business for herself, and she is 
 therefore incompetent to give a bond. The Act has reference 
 to wilful neglect, such as arises either from a depraved life, 
 the result of drunkenness or profligacy, or from actual de- 
 sertion.-' 
 
 § 146. Under the Act of 1718, a feme sole trader may be 
 sued without naming her husband, for all debts contracted 
 either in the course of her trade or for the maintenance of 
 herself and her children, whether they be debts by simple 
 contract or by specialty.^ And she can maintain an action 
 in her own name for a distributive share of her ancestor's 
 estate.^ Prior to the Act of 4th May, 1855, there was no 
 feme so^e trading by a married woman in Pennsylvania, but such 
 as is licensed and regulated by the Act of 1718. Where, there- 
 fore, the husband and wife were living in the same city, though 
 separate and apart from each other, and the wife contracted debts 
 in shopkeeping, she could not be sued as/erne sole. The Act ap- 
 plied only to those whose husbands had gone to sea.* And 
 a wife is not liable for debts as a feme sole trader under the 
 Act of 1718, as extended by that of 1855 to cases of de- 
 sertion, or neglect, or refusal of the husband to provide for 
 her, unless she has engaged in some trade, business, or em- 
 ployment, pursued by her for a livelihood, such as wiU con- 
 stitute her a trader. Consequently, in a suit by husband 
 and wife in right of the wife, for money due to her, the 
 defendant cannot set off a debt due by her for board, where 
 it does not appear she was ever engaged in business, or 
 worked at any trade or employment for a livelihood, in the 
 
 ' Weiler v. Greiner, 34 Leg. Int. ' Valentine v. Ford, 2 Bro. 193. 
 13. " Jacobs V. Featherstone, 6 W. & 
 
 2 Burke v. Winkle, 2 S. & R. 189. S. 346. 
 
FEME SOLE TRADERS. 129 
 
 course of which the debt in question was created, and 
 where the husband had deserted her, but lived in the same 
 city with her, as he would be liable for the debt for her 
 board .^ And, did the circumstances of the wife bring her 
 within the provisions of the Act of 1855, where the suit is 
 for a debt contracted for necessaries for the support and 
 maintenance of the family, execution must first issue against 
 the husband alone; this being required by the Act of 
 11th April, 1848, section 8,^ and is not repealed by that of 
 1855.=* 
 
 § 147. The purposes and objects for which a married 
 woman may become a feme sole trader are governed en- 
 tirely by the Act of 1718, the Act of 1855 merely multi- 
 plying the conditions under which she may become one. 
 In the Act of 1718 it is expressly stated to be for wives 
 left at shopJceepiiig , or left to work for their livelihood at any 
 other trade. The purpose of granting the privilege is to 
 enable a wife, by working at shopkeeping or some other 
 trade, to acquire the means of self support. The liability 
 to suit imposed upon them by the Act, though in unqualified 
 terms, must be construed in subservience to the intent. 
 And unless the liability accrued in the course of and for the 
 necessary purposes of the trade engaged in by the wife for 
 her livelihood, it is not within the purview of the Act. A 
 married woman, therefore, engaged in the profession of an 
 actress, has no power to become surety for the rent on a 
 lease of a theatre to her employer, where it did not appear 
 such act was necessary to the prosecution of her profession.* 
 
 § 148. Although the Act of 1855 directs that the pro- 
 perty, real and personal, of a feme sole trader shall be sub- 
 ject to her free and absolute disposal during life, or by will, 
 
 1 Cleaver v. Sheetz, 20 P. F. S. ' Sheetz v. Cleaver, 8 Phila. 3, 
 500. * Cochran v. Garrettson, 3 Leg. 
 
 2 P. L. 536. Gaz. 220, per Lynd, J. 
 
130 
 
 THE LAW OF MARRIED WOMEN. 
 
 without liability to be interfered with, or obtained by her 
 husband, and in case of her intestacy, shall go to her next 
 of kin, as if he were previously dead, yet she cannot, with- 
 out his assent, divest his estate as tenant by the curtesy, 
 even though the estate accrued to her since the Act of 
 1848. The husband's estate, as tenant by the curtesy, is 
 an estate vested in him, and is expressly saved to him by 
 the Act of 1848. The Legislature, therefore, cannot em- 
 power the wife to convey it, any more than they can author- 
 ize one man to convey the estate of another who is at the 
 time sui juris. There would seem to be no legislative 
 power to divest a vested estate in lands except for public 
 use upon compensation.^ 
 
 ' Ayetsky v. Goery, 2 Brewst. 302. 
 
POWER TO DISPOSE OF HER PROPERTy BY WILL. 131 
 
 CHAPTER XII. 
 
 POWER TO DISPOSE OF HER PROPERTY BY WILL. 
 
 § 149. At common law, a married woman cannot dispose 
 of her property by wUL^ The Act of 8th April, 1833 (P. 
 L. 249),^ gives to every person of sound mind, of the age of 
 twenty-one years and upwards, married women excepted, 
 power to dispose of his or her real and personal estate by 
 will ; with a proviso that a married woman may, under a 
 power legally created for the purpose, dispose of her real or 
 personal estate by will or appointment in the nature of a will, 
 and that any married woman may, with the assent or license 
 of her husband, dispose of her personal estate by will. But 
 now a married woman, under the Act of 11th April, 1848, 
 section 7,^ may dispose of her separate property, real, per- 
 sonal and mixed, by will, provided the will be executed in 
 the presence of two or more witnesses, neither of whom 
 s-hall be her husband. The Act does not say that the will 
 
 ' West V. West, 10 S. & R. 446. 3. ''And provided also, that no will 
 
 ^ The 1st, 2(1 and 3d sections are as shall be effectual unless the testator 
 
 follows : were at the time of making the same 
 
 1. " That every person of sound of the age of twenty-one years or up- 
 mind, married women excepted, may wards, at which age the testator may 
 dispose by will of his or her real es- dispose of real as well as personal or 
 tate, whether such estate be held in mixed property, if in other respects 
 fee simple, or for the life or lives of any competent to make a will." 
 
 other person or persons, and whether ' The section is as follows : 
 
 in severalty, joint-tenancy, or common, " Any married woman may dispose, 
 
 and also of his or her personal estate, by her last will and testament, of her 
 
 2. ''Provided, that any married separate property, real, personal or 
 woman may, under a power legally mixed, whether the same accrues to 
 created for the purpose, dispose of her her before or during coverture : Pro- 
 real and personal estate by will or vided, that said last will and testa- 
 appointment in nature of a will, and ment be executed in the presence of 
 that any married woman may, with two or more witnesses, neither of 
 the assent or license of her husband, whom shall be her husband." 
 dispose of her personal estate. 
 
132 THE LAW OF MARRIED WOMEN. 
 
 must be executed in the presence of two or more subscribing 
 witnesses. To execute a will, according to the terms of the 
 proviso, is to sign it, or request another to sign it, in the 
 presence of two or more witnesses, and to publish and de- 
 clare it in their presence to be the last will and testament 
 of the party whose signature has been affixed to it.^ And 
 the execution of a will must be judged of by the law as it 
 stood at the time of its execution, and not at the time of 
 the death of the testator.^ And so the right to make a will 
 is to be determined in like manner.^ The assent or license 
 of the husband to his wife to dispose of her personal estate 
 by will, intended by the Act of 1833, is not a general 
 license to make a will of the personal estate, but a special 
 authority to make a particular will.* Prior to the Act of 
 11th April, 1848, if a husband, before marriage, covenanted 
 with his intended wife that she might dispose of her lands 
 by will, and, during coverture, she devised them, this oper- 
 ated as a good appointment, and her heir at law was bound 
 by the devise, without any legal estate being vested in 
 trustees.^ And by articles of separation, a husband might, 
 by consent, enable his wife to make a valid testamentary 
 disposition of real estate, if he were her sole heir.° 
 
 § 150. The power of disposition by will given by the Act 
 of 1848 is a general one, and not limited to property 
 acquired subsequently to the passage of the Act.' 
 
 § 151. The 16th section of the Act of 8th April, 1833 (P. 
 L. 251), provides that ''a will executed by a single woman 
 shall be deemed revoked by her subsequent marriage, and 
 shall not ber revived by the death of her husband ;" and this 
 
 1 Fransen's Will, 2 C. 202. ^ Barnes v. Hart, 1 Y. 221. 
 
 2 Mullen V. M'Kelvy, 5 Watts 400. « Wagner d. Ellis, 7 Barr 411. 
 
 " Kurtz V. Sayler, 8 II. 209. ' See Van Wert v. Benedict, 1 
 
 * Kurtz 0. Sayler, supra. Bradf. (N. Y.) 114. 
 
POWER TO DISPOSE OP HER PROPERTY BY WILL. 133 
 
 is not repealed by the Act of 1848.^ The section applies as 
 weU to a widow who makes a will, and afterwards marries 
 a, second time, as to a single woman.^ 
 
 § 152. By section 10 of the Act of 13th March, 1815 
 (6 Sm. 288), if a woman, divorced for adultery, shall after- 
 wards openly cohabit, at bed and board, with the person 
 named in the petition or libel, and proved to be partaker in 
 her crime, she is declared to be incapable of alienating, di- 
 rectly or indirectly, any of her own lands, tenements, or 
 hereditaments ; and after her death they are to descend and 
 be subject to distribution, as if she had died seized thereof 
 intestate.^ 
 
 As against her Hushand. 
 
 § 153. The Act of 4th May, 1855, section 1 (P. L. 
 4;j0), provides " That the power of any married woman to 
 bequeath or devise her property by will shall be restricted, 
 as regards the husband, to the same extent as the husband's 
 power so to dispose of his property is restricted as regards 
 the wife, namely : so that any surviving husband may, 
 against her will, elect to take such share and interest in her 
 real and personal estate as she can, when surviving, elect to 
 take against his will in his estates, or otherwise to take only 
 her real estate as tenant by the curtesy : Provided, that 
 nothing herein contained shall affect the right or power of 
 the wife, by virtue of any authority or appointment con- 
 
 ' Fransen's Will, 2 C. 202. directly or indirectly, any of her 
 '^ Kurtz V. Sayler, 8 H. 209. lands, tenements, or hereditaments ; 
 ' The section is as follows : " When but all deeds, wills, appointments, ftnd 
 a.ny worn an shall be divaroed as afore- conveyances thereof, shall be abso- 
 said" (viz., for adultery), " and shall lately void and of none effect ; and 
 afterwards openly cohabit, at bed and after her death, the same shall de- 
 board, with the person named in the scend and be subject to distribution 
 petition or libel, and proved to be par- in like manner as if she had died 
 taker in her crime, she is hereby de- seized thereof intestate.'' 
 clared to be incapable to alienate, 
 
134 THE LAW Of MAERIED WOMEN. 
 
 tained in any deed or will, to grant, bequeath, devise as 
 heretofore, any property held in trust for her sole and 
 separate use." Against the will of her husband, the wife, 
 when surYivirig, can, under section 11 of the Act of 8th 
 April, 1833 (P. L. 249), elect to take dower, or the pro- 
 perty devised and bequeathed to her by the husband ; and 
 under the 11th section of the Act of 11th April, 1848 (P. 
 L. 537), she may take either the bequest or devise, or her 
 share of the personal estate of her husband ; which, under 
 the Act of 8th April, 1833, would be one-third of the per- 
 sonal estate where the intestate leaves issue, and one-half 
 where he leaves no issue, but leaves a widow and collateral 
 heirs or other kindred (s. 1), and to the whole, in default 
 of known heirs or kindred competent to take (s. 10). A 
 husband, therefore, who elects not to take under his wife's 
 will, is entitled, under the Act of 1855, to one-third the per- 
 sonalty absolutely, and one-third the realty for life, where 
 his wife leaves issue, and to one-half the personalty abso- 
 lutely, and one-half the realty for life, where she leaves no 
 issue, or, in either case, instead of these, to the whole of 
 the real estate for life, as tenant by the curtesy ;^ and of 
 these his wife cannot deprive him by her will. The fifth 
 section of the Act of 4th May, 1855, provides that '• No 
 husband who shall have, as aforesaid, for one year or up- 
 wards previous to the death of his wife, wilfully neglected 
 or refused to provide for his wife, or shall have, for that 
 period or upwards, wilfully and maliciously deserted her, 
 shall have the right to claim any right or title in her real or 
 personal estate, after her decease, as tenant by the curtesy, 
 or under the intestate laws of this Commonwealth." 
 
 ' Seepost, p. 137, et seq. 
 
WIFE DYING INTESTATE. 135 
 
 CHAPTER XIII. 
 
 WIFE DYING INTESTATE. 
 
 § 154. In case of the intestacy of the wife, it is enacted 
 by section 9 of the Act of 11th April, 1848 (P. L. 530), 
 that when any married woman, possessed of separate per- 
 sonal property, shall die intestate, her husband shall be 
 first entitled to letters of administration on her estate, 
 which estate shall be distributed as follows : if such mar- 
 ried woman shall leave no children nor the descendants 
 of such living, the husband shall be entitled to such 
 personal estate absolutely ; if such married woman shall 
 leave a child or children living, her personal estate shall 
 be divided amongst the husband and such child or chil- 
 dren, share and share alike ; if any such child or chil- 
 dren, being dead, shall have left issue, such issue shall be 
 entitled to the share of the parent. And section 10 pro- 
 vides that the real estate of such married woman upon 
 her decease shaU be distributed as provided for by the in- 
 testate laws of this Commonwealth now in force : Provided, 
 that nothing contained in this Act shall be deemed or taken 
 to deprive the husband of his right as tenant by the cur- 
 tesy. 
 
 § 155. "While, therefore, a husband who elects not to take 
 under his wife's will is entitled, under the Act of 1855, to 
 one-third the personalty absolutely, and one-third the realty 
 for life, where there is issue, and to one-half the personalty 
 absolutely, and one-half the realty for life, where there 
 is no issue, or, in either case, instead of these, to the whole 
 of the real estate for life, as tenant by the curtesy, in 
 the case of intestacy of the wife, he is entitled, under 
 the Act of 1848, to one equal share of the personal estate, 
 
136 THE LAW OF MARRIED WOMEN. 
 
 with the surviving children, and deceased children leaving 
 issue, and to the whole of the real estate for life, as tenant 
 by the curtesy.' Upon his wife's death, the husband 
 cannot interfere with her property as against her adminis- 
 trator. Where, therefore, after the death of a married 
 woman intestate, the husband transferred a sum of money 
 belonging to her estate to a trustee, in trust for the benefit 
 of her children, in accordance with the expressed wishes of 
 the decedent, and an administrator was afterwards ajjpointed, 
 it was held that the administrator was entitled to recover 
 the money from the trustee.^ 
 
 ' See Dickinson u. Dickinson, 11 P. ^ Ruch v. Hildebrand, 2 Weekly 
 F. S. 401. Notes 661. 
 
HER RIGHTS IN HER HUS'BAND's ESTATE. 137 
 
 CHAPTEE XIV. 
 
 HER EIGHTS IN HER HUSBAND's ESTATE. 
 
 § 156. The power of the husband over his personal pro- 
 perty by gift inter vivos is absolute.. His wife and children 
 have no legal right to any part of his goods^ and no fraud 
 can be predicated by any act of his to deprive them of the 
 succession -^ and unless the wife be a creditor of her hus- 
 band, as a general proposition, she cannot set aside his vol- 
 untary alienation of his property made in his lifetime.^ 
 
 Dower at Common Law. 
 
 § 157. Dower, at common law, is an estate for life, which 
 the law gives the widow in the third part of the lands and 
 tenements, of which the husband Was (solely) seized, at any 
 time during the coverture, of an estate in fee or in tail, in 
 possession, and to which estate in the lands and tenements, 
 the issue, if any, of such widow might, by possibility, have 
 inherited.^ Her interest is an estate, and not a mere lien.* 
 
 Ser Statutory Iniered. 
 
 § 158. The Act of 8th April, 1833, section 1 (P. L. 
 315), provides : 1. The real and personal estate of a dece- 
 dent, whether male or female, remaining after payment 
 of all just debts and legal charges, which shall not have 
 l)een sold or disposed of by will, or otherwise limited by mar- 
 riage settlement, shall be divided and enjoyed as follows, viz. : 
 I. Where such intestate shall leave a widow and issue, the 
 widow shall be entitled to one-third part of the real estate 
 for the term of her life, and to one-third part of the personal 
 
 1 Pringle v. Pringle, 9 P. P. S. 281. ° Bouv. Law Diet., tit. Dower; 2 
 
 2 Bouslaugh V. Bouslaugh, 18 P. F. Bl. Com. 131. 
 
 S. 495. < Zeigler's Appeal, 11 C. 189. 
 
138 THE LAW OF MARKIBD WOMEN. 
 
 estate. 11. Where such intestate shall leave a widow and 
 collateral heirs, or other kindred, but no issue, the widow 
 shall he entitled to one-half part of the real estate, in- 
 cluding the mansion-house, and buildings appurtenant 
 thereto, for the term of her life, and to one-half of the per- 
 sonal estate absolutely. Section 10 enacts that in default 
 of known heirs or kindred competent as aforesaid, the real 
 estate of such intestate shall be vested in his widow, or if 
 such intestate were a married woman, in her surviving 
 husband for such estate as the intestate had therein, and in 
 such case the widow shall be entitled to the whole of the 
 pei'sonal estate absolutely. And section 15 provides that the 
 shares of the estate directed by this Act to be allotted to 
 the widow shall be in lieu and full satisfaction of her dower 
 at common law. In any of the foregoing contingencies, 
 therefore, the share of the widow in her deceased husband's 
 estate provided for by this Act takes the place of her 
 dower at common law, by the express terms of the Act. 
 
 § 159. In Pennsylvania dower and curtesy belong to both 
 legal and equitable estates.^ Although at common law a 
 widow is not entitled to dower in a vested remainder in her 
 husband, dependent upon a freehold estate outstanding in 
 another, but only in land of which her husband was seized in 
 possession during coverture, it is otherwise under the Act of 
 1833. Under this Act she is dowable of such remainder.^ 
 
 Devise or Bequest hy Hushand to Wife to he in Lieu and Bar 
 of Dower, hut she may Elect. 
 
 § 160. BytheActof8thApril,1833,sectionll(P.L.250), 
 it is enacted " that a devise or bequest by a husband to his 
 wife of any portion of his estate or property shall be deemed 
 and taken to be in lieu and bar of her dower in the estate 
 of such testator in like manner as if it were so expressed in 
 
 1 Dubs w. Dubs, 7 C. 154. = Tiernan's Estate, 2 Weekly N. 251. 
 
HER EIGHTS IN HEE HUSBAND's ESTATE. 139 
 
 the will, unless such testator shall in his will declare other- 
 wise : Provided, that nothing herein contained shall deprive 
 the widow of her choice either of dower or of the estate or 
 property so devised or bequeathed ;" and by the Act of 11th 
 April, 1848, section 11 (P. L. 537), it is provided that this 
 section of the Act of 1833 "shall not be construed to de- 
 prive the widow of the testator, in case she elects not to 
 take under the last will and testament of her husband, of 
 her share of the personal estate of her husband, under the 
 intestate laws of this Commonwealth, but that the said widow 
 may take her choice, either of the bequest or devise made 
 to her under any last will and testament, or of her share of 
 the personal estate under the intestate laws aforesaid." 
 
 § 161. By dower, in the foregoing section of the Act of 
 1833, is meant dower at common law,^ so that if the widow 
 elected not to take under the will of her husband, she 
 would have been entitled under that section to her dower 
 at common law only, and to no share of the personal estate, 
 nor, in case the husband died leaving no issue, to a moiety of 
 the profits of his real estate for life, but to a third only.^ 
 The question might fairly arise, also, whether the 11th 
 section of the Act of 1848 does not confine the widow to 
 her share of the fersonal estate of her husband in case she 
 elects not to take under his will, or to take her dower under 
 the 11th section of the Act of 1833, in lieu of the devise or 
 bequest to her. In Melizet's Appeal,^ however, Coulter, 
 J., says, " This section is plainly cumulative, and in addi- 
 tion to the 11th section of the Act of 1833, and intended 
 to explain it. It certainly could not have been intended to 
 repeal it. The Legislature seem to have thought that by the 
 word dower in that section, dropping the addition of the 
 
 ' Hinnershits u. Bernhard's Exrs., '^ Hinnershits v. Bernhard's Ex- 
 
 1 H. 52] ; Paul's Exrs. v. Paul, 12 0. ecutors, supra. 
 
 280 ; Bradfords v. Rents, 7 Wr. 483 ; ' 5 H. 454. 
 Shaffer v. Shaffer, 14 Wr. 394. 
 
140 THE LAW OF MARRIED WOMEN. 
 
 words at common law, which were used in the Act of 1794, was 
 meant the widow's share, and that she was not confined to 
 dower at common law. Hence the Act of 1848-." But the 
 learned judge further says, " A doubt has been expressed 
 whether this Act does not confine the election of the widow 
 to the personal estate alone. I cannot entertain such a 
 doubt. But I am instructed by the Court to express no 
 opinion as to the real estate." This, however, has been 
 since put at rest as to the real estate, by the Act of 20th 
 April, 1869, section 1 (P. L. 77), which provides "that in 
 case any person has died, or shall hereafter die, leaving a 
 widow and last will and testament, and such widow shall 
 elect not to take under the will, in lieu of dower at common 
 law, as heretofore, she shall be entitled to such interest in 
 the real estate of her deceased husband as widows of dece- 
 dents dying intestate are entitled to under the existing laws 
 of this Commonwealth." And as to the personal estate, it 
 is now settled that under the 11th section of the Act of 
 1833, if the widow elects not to take under the will, she is 
 entitled to one-third where the husband leaves issue, or one- 
 half where he leaves none, of the personalty also, in the 
 same manner as if her husband had died intestate -^ so that 
 she is now entitled to an interest of one-third or one-half, 
 as the ease may be, in all the lands of which her husband 
 died seized, for life, and the same proportion of the personal 
 estate absolutely.^ 
 
 § 162. But it would seem at least questionable whether 
 where the husband aliened the land during coverture, with- 
 out the wife's joining in the conveyance, she would, upon 
 his death, be entitled to anything other than dower at com- 
 mon law therein. The Act of 1833, as we have seen, gives 
 to the widow a share of such real and personal estate of her 
 deceased husband as shall not have been sold, or disposed 
 
 ' Ani-lerson's Appeal, 12 C. 492. ' See Anderson's Appeal, supra. 
 
HER RIGHTS IN HEK HUSBAND's ESTATE. 141 
 
 of by will, or otherwise limited by marriage settlement. 
 This would seem to leave her share in such as had been 
 sold by the husband in his lifetime, without the widow's 
 joining in the conveyance, as it stood before the statutory 
 provision, whereby she would be entitled to her dower at com- 
 mon law in such real estate thus sold by the husband. Says 
 Lowrie, J./ " I should infer, from the 1st and 15th sections 
 of the intestate Act of 8th April, 1833, that the Legislature 
 intended to settle the share to which the widow should be 
 entitled in all cases where dower at common law could be 
 claimed, except in cases where the land ' shall have been 
 sold or disposed of by will, or otherwise limited by marriage 
 settlement,' in which cases only the Legislature leaves the 
 rights as they formerly stood." If this be the true con- 
 struction of the Act, the practical consequence would be 
 that where the husband thus aliened the land during cover- 
 ture, without the wife having joined in the conveyance, and 
 he should die leaving a widow and no issue, the widow 
 could recover but a life interest of one-third in the land 
 aliened,^ while under her statutory right she would be 
 entitled to one-half. 
 
 § 163. The 11th section of the Act (1848, ante,^. 139, 
 as to election by the widow) is not to be applied to the 
 estate of a testator who died before its passage, though 
 the election was not made till afterwards.^ But it does 
 apply to a will made before its passage, and the testator 
 died subsequently.* 
 
 Election by Widow by Hatter in pais. 
 
 § 164. The election of the widow to take under the will, 
 though not made in the Orphans' Court, agreeably to the 35th 
 
 ' Evans v. Evans, I Phila. 114, ' Hinnershits v. Bernhard's Exeou- 
 
 approved in Evans v. Evans, 5 C. 280. tors, 1 H. 518. 
 
 2 See Hinnershits v. Bernhard's ' Melizet's Appeal, 5 H. 449. 
 Executors, 1 H. 521. 
 
142 THE LAW OF MARRIED WOMEN. 
 
 section of the Act of 29th March, 1832 (P L. 200), estops 
 her from claiming dower.^ She may make her election in pais, 
 and will be bound by it, where it is done freely and delibe- 
 rately by her, with a full knowledge of the facts and her 
 rights.^ But such election can only be determined by 
 plain and unequivocal acts, under a full knowledge of aU 
 the circumstances and of the parties' rights. For one is 
 not bound to elect until fully informed of the relative value 
 of the things between which choice is to be made ; and if 
 an election be made before the circumstances necessary to 
 a judicious and discriminating choice are ascertained, the 
 party is not bound.** But her election in pais will be bind- 
 ing upon her if she knew the material facts, though she did 
 not understand her legal rights ; that is, where the error is 
 her own, and no imposition has been practiced, nor any 
 fraudulent advantage taken ; then her acts done under the 
 influence of it are as binding upon her as if she knew the 
 law perfectly.* 
 
 § 165. She will be deemed to have made her election 
 either to take or not to take under the will, by demanding 
 and receiving payment of a legacy from the executors, 
 taking possession of a devise, accepting an assignment of 
 dower and taking possession of it, or prosecuting and re- 
 covering by suit a legacy, devise, or dower at law.^ A 
 widow who takes personal estate under and according to 
 the will of her husband is estopped from afterwards claim- 
 ing the real estate otherwise devised under the will. But 
 such election, to be binding, must be evidenced by unequi- 
 vocal acts, clearly proved, and be made with full knowledge 
 of all the facts, and the burden of showing this is upon him 
 
 1 Light u. Light, 9 H. 411 ; Oauff- ^ Light i>. Light, 9 H. 407, per 
 
 man v. Cauffman, 17 S. & R. 16; Black, C. J.; Bradfords i\ Kents, 
 
 Ilevon V. HoiTner, 3 R. 396. supra. But see Tooraey's Estate, 2 
 
 ■■^ Heron v. Holfner, suxira. Weekly Notes 682. 
 
 » Anderson's Appeal, 12 0. 496 ; » Heron v. Hoffner, 3 R. 396. 
 Bradfords v. Kents, 7 Wr. 474. 
 
HER EIGHTS IN HER HUSPANd's ESTATE. 143 
 
 who alleges that an election has been made.^ And a widow 
 who has accepted a bequest under her husband's will, and 
 executed a release of all her claim against his estate under 
 a misapprehension of her legal rights, without a full appre- 
 hension of the object of the executors in obtaining it, or of 
 its legal effect, and being misled as to the object by the mode 
 of application of the executors, is not barred from electing 
 to take against his will.^ 
 
 § 166. A widow having taken under her husband's will 
 the portion therein given to her, takes it in lieu of dower, 
 and she cannot by a voluntary breach of the condition of 
 her tenure, and consequent loss of the portion thus given 
 her, restore her right of dower. Where, therefore, the 
 widow was given a life estate subject to be defeated by her 
 marrying again, and she took the life estate and married 
 again, she cannot, upon thus defeating the life estate, claim 
 dower.^ 
 
 Proceedings to Compel an Election hy Widow. 
 
 § 167. In order to compel an election by the widow 
 either to accept a devise or bequest in lieu of dower, or take 
 her dower, it is provided by the Act of 29th March, 1832, 
 section 35 (P. L. 200), " That in every case of a devise 
 or bequest to a widow, which by force of any last will and 
 testament, or by operation of law, will bar such widow of 
 dower, subject to her right of election of dower, or of the 
 property devised or bequeathed, it shall be lawful for the 
 Orphans' Court, on the application of any person interested 
 in the estate of the decedent, to issue a citation, at any time 
 after twelve months from the death of the testator, to any 
 such widow, to appear at a certain time not less than one 
 month thereafter, in the said court, to make her election 
 either to accept such devise or bequest in lieu of dower, or 
 
 1 Cox M. Rogers, 27 P. F. S. 160. ^ Toomey's Est., 2 Weekly N. 682. 
 See Bradfords v. Kents, 7 Wr. 474. ^ Taylor v. Birmingham, 5 C. 313. 
 
144 THE LAW Of MARRIED WOMEN. 
 
 to waive such devise or bequest, and take her dower, of 
 which election a record shall be made, which shall be con- 
 clusive on all parties ; if the widow shall neglect or refuse 
 to appear upon such citation, then, upon due proof to the 
 Court of the service thereof, the said neglect or refusal 
 shall be deemed an acceptance of the devise or bequest, and 
 a bar of dower, of which a record shall be made, which 
 shaU be conclusive on all parties concerned." The Act 
 gives the widow twelve months to make her election, and 
 before the expiration of that time she cannot be called upon 
 to make it.^ That she may make her election with a full 
 knowledge of the- circumstances of her husband, she is 
 entitled to a fair account of the personal estate by the exec- 
 utor.^ By the Act of 17th March, 1845, section 3 (P. L. 
 160), " The Supreme Court in and for the Eastern Dis- 
 trict of Pennsylvania, and the Court of Common Pleas of 
 Philadelphia County,^ shall each have all the power and 
 jurisdiction of a court of equity in all cases of dower and 
 partition, within the City and County of Philadelphia." 
 
 Assignment of the Widow's Share in her Deceased Husband's 
 
 Real Estate. 
 
 § 168. The Act of 29th March, 1832 (P. L. 201), has 
 furnished a mode of ascertaining the widow's share in the 
 estate of her deceased husband. Section 36 provides 
 " That the Orphans' Court of the county where the real 
 estate of a decedent is situate shall have power on the ap- 
 plication of the widow, or any lineal descendant of the de- 
 cedent having an interest in such real estate, if of full age, 
 or if under age, on the application of his guardian, to 
 ap[)oint seven or more disinterested persons,* chosen on 
 
 ' Anderson's Appeal, 12 C. 492. ■• By the Act of 27th April, 1855, § 
 
 2 Melizet's Appeal, 5 H. 455. 4 (P. L. 369), the Court may appoint, 
 
 ' And, of course, since the new on agreement and nomination of the 
 
 Constitution went into effect, the sev- parties, three or more commissioners 
 
 eral Courts of Common Pleas of Phil- to divide or value the same with the 
 
 adelphia County. same effect as a sheriff's inquisition. 
 
HEE, RIGHTS IN HER HTJSBAND's ESTATE. 145 
 
 behalf and with consent of the parties, or when the parties 
 cannot so agree, to award an inquest to make partition of 
 the real estate of such decedent ; and upon the return made 
 by the persons so appointed, or of the inquisition tal^en, to 
 give judgment that the partition thereby made be firm and 
 stable forever, and that the costs thereof be paid by the 
 parties concerned." The 37th section provides " That 
 when any such estate cannot be divided among the lineal 
 descendants as aforesaid, or the widow and such lineal de- 
 scendants, without prejudice to or spoiling the whole, the 
 seven or more persons, or the said inquest, as the case may 
 be, shall make and return a just appraisement thereof to 
 the Orphans' Court ; and thereupon, but not otherwise, the 
 said Court may order the same : I. To the eldest son, if he 
 be living, but if he be dead, to his children, if any, in the 
 order of their birth, and preferring males to females; and 
 in like manner to his other lineal descendants in the same 
 order. II. If the eldest son, or his lineal descendants, do 
 not accept the same, then to the second and other sons, or 
 their lineal descendants successively in the order of birth, in 
 like manner as is provided for the eldest son and his descend- 
 ants. III. If the second or other sons, or their descendants, 
 do not accept the same as aforesaid, then the eldest daughter, 
 or her lineal descendants, in like manner as is provided in 
 the case of the eldest son. IV. If the eldest daughter, or 
 her lineal descendants, do not accept the same, then to the 
 second and other daughters, or their lineal descendants suc- 
 cessively, in like manner as is provided for the second and 
 other sons." Section 41 provides " That should the widow 
 of the decedent be living at the time of the partition, she 
 shall not be entitled to payment of the sum at which her 
 purpart or share of the estate shall be valued, but the same, 
 together with the interest thereof, shall be and remain 
 charged upon the premises, if the whole be taken by one 
 child or other descendant of the deceased, or upon the re- 
 
 10 
 
146 THE LAW OF MARRIED WOMEN. 
 
 spective shares if divided as hereinbefore mentioned, and 
 the legal interest thereof shall be annually and regularly- 
 paid by the persons to whom such real estate shall be ad- 
 judged, their heirs or assigns, holding the same according 
 to their respective portions, to the said viddovp during her 
 natural life, in lieu and fall satisfaction of her dower at 
 common law, and the same may be recovered by the widow 
 by distress or otherwise, as i-ents in this Commonwealth 
 are recoverable. On the death of the widow, the said prin- 
 cipal sum shall be paid by the children, or other lineal de- 
 scendants to whom the said real estate shall have been ad- 
 judged, their heirs or assigns holding the premises, to the 
 persons thereunto legally entitled." Section 42 authorizes 
 the Court to decree a sale of the real estate in case all the 
 heirs neglect, after due notice, or refuse to take the same at 
 the valuation ; and section 43 provides " That where a 
 decree for the sale of real estate shall be, made by the 
 Orphans' Court, in the event provided for in the preceding 
 section, the Court shall direct that the share of the widow, 
 if there be one, of the purchase money, shall remain in the 
 hands of the purchaser during the natural life of the widow, 
 and the interest thereof shall be annually and regularly paid 
 to her by the purchaser, his heirs and assigns, holding the 
 premises, to be recovered by distress, or otherwise, as rents 
 are I'ecoverable in this Commonwealth, which the said 
 widow shall accept in full satisfaction of her dower in the 
 premises ; and at her decease, her share of the purchase 
 money shall be paid to the persons legally entitled thereto." 
 It is not within the design of this work to set forth the 
 entii'e proceedings in partition, but simply to advert to such 
 parts of them as particularly concern the interest of the 
 widow in the real estate of her deceased husband. Under 
 its provisions it may be stated, however, that her portion, 
 whether there be one or more lineal descendants, or collat- 
 eral heirs only, may be assigned to her by metes and bounds 
 
HER EIGHTS IN HER HUSBANDS ESTATE. 
 
 147 
 
 if the estate can he divided without prejudice.^ Until 
 assignment she is not seized of an undivided part; and if 
 there he no assignment the Legislature excludes her from 
 the enjoyment of the land itself.^ The Act of 20th April, 
 1869 (P. L. 77), makes provision for an inquest and parti- 
 tion of the husband's lands where the widow elects not to 
 take under his will, giving to her the same interest in his 
 real estate as widows of intestates are entitled to ; and the 
 same remedies as to partition in the Orphans' Court.^ 
 
 ' Bishop's Appeal, 7 W. & S. 251 ; 
 M'Call's Appeal, 6 P. T. S. 363; 
 Gourley v. Kinley, 16 P. F. S. 
 273 ; Brown's Appeal, 34 Leg. Int. 
 354. 
 
 ^ Pringle v. Gaw, 5 S. & R. 536. 
 See Gourley «. Kinley, supra. 
 
 ' The Act is as follows : 
 
 Section 1. In case any person has 
 died, or shall hereafter die, leaving a 
 widow and last will and testament, and 
 such widow shall elect not to take 
 under the will, in lieu of dower at the 
 common law, as heretofore, she shall 
 be entitled to such.interest in the real 
 estate of her deceased husband as the 
 widows of decedents dying intestate 
 are entitled to under the existing laws 
 of this Commonwealth. 
 
 Section 2. The Orphans' Courts of 
 the several counties of this Common- 
 wealth in which the real estate of such 
 decedent is situated shall have power, 
 on the application of the widow or any 
 one interested, to award an inquest to 
 make partition of the same, and to 
 decree the allotments thereof made, 
 or in case of refusal to accept, to 
 order a sale thereof, and secure the 
 interest of the widow and all others 
 interested, in the same manner and 
 with like force and effect as is now 
 provided by law in the partition of 
 
 the real estate of persons dying intes- 
 tate. 
 
 Section 3. If any decedent who 
 shall have died prior to the passage of 
 this Act shall leave a widow and issue, 
 and a last will and testament, and the 
 widow of such decedent shall refuse, 
 or shall have refused, to take under 
 the said will, such widow, upon filing 
 her petition for partition in the Or- 
 phans' Court of the proper county, or 
 upon filing her written assent to such 
 petition, when proceedings are com- 
 menced by any other interested pai'ty, 
 shall be entitled to the provisions of 
 this Act ; and the said Court shall 
 have jurisdiction to make such parti- 
 tion : Provided, that whenever pro- 
 ceedings in partition have been com- 
 menced and are now pending in any 
 Orphans' Court of this Commonwealth 
 is cases of testacy, wherein the widow 
 has refused to accept under the last 
 will and testament of her deceased 
 husband, such Court shall have juris- 
 diction in the premises, and may pro- 
 ceed therein under the provisions of 
 this Act, upon the parties interested 
 filing their written assent ; and in 
 case any of the parties are minors, 
 then such written assent shall be by 
 the guardian or guardians of such 
 minor or minors. 
 
148 THE LAW OF MARRIED WOMEN. 
 
 Nature of Widow s Share. 
 
 § 169. What the precise nature of the widow's share is, 
 either before or after it has been ascertained and charged 
 on the land, under proceedings in partition, the authorities 
 are not altogether agreed. In Power v. Power,^ Gibson, C. 
 J., speaking of her share before it had been thus ascertained 
 and charged, pronounces it " an annuity in the nature of a 
 rent charge," and held that consequently she could not be a 
 party to an action of partition. So in Shaupe v. Shaupe,^ 
 which involved the widow's share that had been ascertained 
 and charged on the land, the same learned judge declared 
 it to be " an interest issuing out of the land, in all respects 
 of the nature of a rent charge ;" and in Thomas v. Simp- 
 son,^ a similar case in this respect, Rogers, J., adopts 
 this definition, and holds that the interest is subject to 
 levy and sale upon execution. Again, in Miller v. Leidig,* 
 Sergeant, J., says of this interest, that " primarily and 
 essentially her estate is a rent issuing out of the land, 
 and therefore an incorporeal hereditament ranking as real 
 estate." lA Medlar v. Aulenbach,^ and Hise v. Geigar," it 
 is termed by Rogers, J., a " lien," or " statxitory lien." In 
 Bachman v. Chrisman,' Lowrie, J., calls the widow's inter- 
 est in the real estate of her deceased husband, " statutory 
 dower," and says it is " a defined interest in her late hus- 
 band's lands," and " a freehold estate." While in Kurtz's 
 Appeal,** it is said by Knox, J., that " whatsoever doubt 
 there may be as to the nature of the widow's estate, it is 
 certain that, so far as relates to the principal sum, it is 
 simply a charge upon the land in the nature of a lien, pay- 
 able at the widow's death to the heirs of the intestate, to 
 
 ' 7 Watts 212. '2 Penn. R. 359. 
 
 M2 S. & R. 12. « 7 W. & S. 274. 
 
 » 3 Ban- 69. '11 H. 163. 
 
 3 W. & S. 456. 8 2 c. 465. 
 
HER RIGHTS IN HER IIUSBANd's ESTATE. 149 
 
 be recovered as personal only." In Zeigler's Appeal/ the 
 authority of this latter case is questioned by Woodward, J., 
 and he holds the interest in question to be an estate in the 
 land, and not a mere lien. lie says : " There is nothing in 
 that Act" (the Act of 1794 relating to proceedings in par- 
 tition), "nor in any decision under it, to justify the idea 
 that the Legislature meant to reduce the widow's rights in 
 her deceased husband's estate from the dignity and dura- 
 bility of an estate to a mere lien."^ It is doubtless not a 
 mere lien. The true doctrine would seem to be that by 
 force of the statute, an initiate or inchoate interest at least, 
 in the land, vests in the widow eo instanti the husband dies, 
 giving her thus an interest in the land; and when her inter- 
 est is ascertained in money and charged on the land, her 
 interest in the land is converted into an interest issuing out 
 of the land, of the nature of a rent charge.^ 
 
 § 170. As a judgment, in Pennsylvania, is a lien upon 
 every kind of equitable and legal interest in land, vested in 
 the debtor, at the time of the judgment, the interest of the 
 widow would seem to be bound by a judgment.* And it is 
 clear that her interest may be seized and sold in execution 
 for the payment of debts.® Before the Act of -!Oth April, 
 1869,^ where the widow elected not to take under her de- 
 ceased husband's will, her interest in his real estate was 
 dower at common law, but under that Act it is no longer 
 such.^ 
 
 Widoivs Remedy to Recover her Share. 
 
 § 171. As already stated,* until assignment of her por- 
 tion, the widow is not seized of an undivided part, and if 
 
 1 11 C. 189. ■• See Thumasu. Simpson, 3 Ban- 69. 
 
 2 Gourley v. Kinley. 16 P. F. 8. ' Shaupe v. Shaupe, 12 S. & R. 12 ; 
 273, per Williams, J. See also Thomas v. Simpson, supra. 
 Soholl's Appeal, 4 Wr. 177. " Ante, p. 147, u. 3. 
 
 3 See Thomas v. Simpson, 3 Ban- ' M'Nickle v. Henry, 8 Phila. 87. 
 70 ; Gourley v. Kinley, supra. * Ante, p. 147. 
 
150 
 
 THE LAW OF MARRIED WOMEN. 
 
 there be no assignment she is excluded from the enjoyment 
 of the land itself. Prior thereto, therefore, she could not 
 maintain ejectment for her share, for ejectment is a pos- 
 sessory action.^ " It has been the general understanding in 
 Pennsylvania," says Duncan, J.,^ " that a widow cannot sup- 
 port ejectment for her thirds as dower at common law, and 
 that she cannot for her interest under the intestate laws." 
 By the common law, it is well settled that if the widow's 
 claim be in the nature of dower, ejectment will not lie before 
 assignment.^ She is not seized of an undivided third part 
 with the heirs ; and she and the heir or heirs are neither 
 tenants in common, joint tenants, nor coparceners. She can- 
 not, therefore, join with them in ejectment under the Act 
 of 13th April, 1807, section 1 (4 Sm. 476), enabling the 
 latter parties to join in ejectment.* So she cannot be made 
 co-defendant with the heirs at law of an intestate in an 
 action of partition. She cannot, says Gibson, C. J., be a 
 party to such an action.^ 
 
 § 172. Where the husband dies seised and intestate, the 
 proceeding must be by petition to the Orphans' Court, ac- 
 cording to the Acts of Assembly, to make partition of the 
 estate, and have the widow's share assigned to her.^ Before 
 the Act of 20th April, 1869,' there was an exception to 
 this where the widow refused to take under her husband's 
 will, and elected dower. In that case she might have had 
 her common law action of dower against the testator's de- 
 visees, though he might have been seized of the lands de- 
 vised, out of which dower was demanded.* But under that 
 
 1 Pringle v. Gaw, 5 S. k R. 536 ; Gourley v. Kinley, 16 P. F. S. 274 ; 
 
 Bratton v. Mitchell, 7 Watts 113; Lippenoott's Estate, 7 Phila. 504; 
 
 Gourley v. Kinley, 16 P. F. S. 273. Thomas u. Simpson, 3 Ban- 60 ; Tay- 
 
 ' Pringle v. Gaw, supra. lor v. Birmingham, 5 C. 306 ; Mus- 
 
 " Pringle v. Gaw, supra. selman's Appeal, 15 P. F. S. 4^0. 
 
 * Pringle v. Gaw, supra. ''Ante, p. 147, n. 3. 
 
 ' Power V. Power, 7 Watts 205. » Bradfords p. Kents, 7 Wr. 483 ; 
 
 8 See Seider v. Seider, 5 Wh. 217 ; Shaffer v. Shaffer, 14 Wr. 394. 
 
HER BIGHTS IN HER HUSBANU's ESTATE. 151 
 
 Act the share of the widow in the real estate of her de- 
 ceased husband is not dower at common law, and the Or- 
 phans' Court alone has jurisdiction in partition.^ She may 
 maintain an action of dower if the land is in possession of 
 one claiming it by title adverse to the heirs, and denying 
 her right ; or of one not amenable to the Orphans' Court f 
 or where the husband aliened the land during coverture, and 
 the wife did not unite in the conveyance.^ The Intestate 
 Act of 19th April, 1794 (3 Sm. 143), is similar to that of 
 1833 in respect to the interest of the widow in her deceased 
 husband's estate. In Seider v. Seider,* which arose under 
 the Act of 1794, Huston, J., says that "Where a person 
 dies leaving a widow and no issue, her interest in his lands 
 is in no respect like her dower at common law, except that 
 it is only for life. No writ of dower lies for this, her in- 
 terest, if it does in any case for the interest of the widow 
 of an intestate in his lands." And he suggests (parenthet- 
 ically) " it may lie against a purchaser of lands from her 
 husband after marriage, where she has not executed the 
 deed ; because her children having no interest, no petition 
 fof the appraisement, or valuation, can be sustained, and 
 unless she could support an action of dower for such lands, 
 she would have a right and no remedy ;" " but," he adds, 
 " where the husband dies seized and intestate, the better 
 opinion seems to be that the proceeding must be according 
 to the Acts of Assembly." The learned judge was doubtless 
 right as to the ability of the widow to maintain an action of 
 dower against the purchaser of lands from her husband after 
 
 ' M'Niokle v. Henry, 8 Phila. 87 ; ' Galbraith v. Green, supra, p. 93 ; 
 
 s. c, 28 Lea;. Int. 44. Leinaweaver v. Stoever, 1 W. & S. 
 
 ^ Galbraith «. Green, 13 S. & R. 85; 160; Riddlesberger v. Mentzer, 7 
 
 Evans u. Evans, 5 C. 280 ; Gourley x>. Watts 141 ; Borland «. Nichols, 
 
 Kinley, 16 P. F. S. 274; Evans «. 2 Jones 41; Seider v. Seider, 5 Wh. 
 
 Evans, 1 Phila. 114. See Evans i>. lYl. 
 
 Evans, 9 Barr 190 ; Thomas v. Simp- * 5 Wh. 217. 
 son, 3 Barr 68. 
 
152 
 
 THE LAW OF MARRIED WOMEN. 
 
 marriage, where she had not joined in the conveyance; but it 
 would seem at least questionable if the reason he assigns, 
 though it might be a sufficient, be the true one ; whether 
 the true reason be not that, in the event named, the action 
 of dower will lie, because in that event the widow (as we 
 have hereinbefore suggested)-' is entitled to dower at com- 
 mon law, and not to a share under the Act of Assembly. 
 And it may be observed in reference to the doubt expressed 
 as to whether the writ of dower lies in any case for the in- 
 terest of the widow of an intestate in his lands, that this 
 doubt is negatived, as we have seen, by more recent cases. 
 It is, however, a general principle, that the Orphans' Court 
 has jurisdiction over the statutory substitute for dower, but 
 not over dower itself.^ 
 
 § 173. Equity has jurisdiction to decree an account 
 of the rents and profits from the time of the husband's 
 death until partition is made.^ So in equity, the personal 
 representatives of the widow entitled to dower in her hus- 
 band's lands may recover the rents and profits thereof, 
 although dower was not assigned in her lifetime, and no 
 proceedings were instituted for that purpose.* 
 
 Share of Widotv to he in Lieu and Satisfaction of her Dower 
 at Common Law. 
 
 § 174. The share of the widow, under the Act, as we 
 have seen, is to be " in lieu and full satisfaction of her dower 
 at common law." This language, taken literally, would seem 
 to comprehend all that a widow can claim at common law 
 under her right of dower. But the law is otherwise ; and 
 it appears settled that the dower of which the widow is de- 
 
 ' Ante, p. 140. ' M'Nickle l\ Henry, supra. 
 
 2 Bi-adfords v. Kents, 7 Wr. 483 ; " Paul's Executors v. Paul, 12 C. 
 
 Shaffer v. Shaffer, 14 Wr. 397 ; Ilin- 270. 
 nershitsw. Bernhard'sExr., 1 II. 518. 
 
HER RIGHTS IN HER HUSBANd's ESTATE. 153 
 
 prived by accepting her share under the Act is only dower 
 in the lands of the husband of which he was the owner at 
 the time of his death. So that if the husband aliens any of 
 his lands during coverture, without the wife's conveying her 
 interest also, she may accept her share in her deceased 
 husband's estate, and claim her dower also in the lands 
 aliened by the husband alone. The husband, in this case, 
 seRs subject to her right of dower; that interest is hers. 
 It is but an initiate right in his lifetime, but when it becomes 
 consummate by the death of the husband, she may claim it 
 in addition to her share in his estate under the Act of 
 Assembly.^ 
 
 Jurisdiction of Courts where Lands to he Divided lie in one or 
 
 more Counties. 
 
 § 175. All the courts of this Commonwealth having juris- 
 diction in matters of partition have power to entertain suits 
 and proceedings, whether at law or in equity, or otherwise, 
 for the partition of real estate, or the recovery of dower or 
 the widow's third or other part, although the lands to be 
 divided or recovered may lie in one or more counties of the 
 Commonwealth : Provided, that such proceeding intended to 
 embrace lands in more than one county shall be brought 
 only in the county where a decedent, whose land is to be 
 divided, had his domicil, or where the homestead, or larger 
 part of the estate in value, shall be situated, and service of 
 process may be made by any sheriff where real estate to be 
 divided shall be situated, or any defendant may be found ; 
 and exemplifications of the record may be filed in every 
 county where such real estate shall be situated, in such 
 court thereof as shall correspond in character with that of the 
 court in which such proceeding may have taken place, and 
 
 ^ Leinaweaver v. Stoever, 1 W. & S. Watts 141 ; Borland v. Nichols, 2 
 164 ; Riddlesberger v. Mentzer, 7 Jones 41. 
 
154 THE LAW OF MARRIED WOMEN. 
 
 be received in evidence with the like effect as the records 
 of the court where filed. ^ 
 
 Action of Dower not to Abate hy Reason of Death of Plaintiff. 
 
 §176. BytheActofl4thMarch,1865,sectionl (P.L..345), 
 it is provided " That no action of dower, unde nihil hahet, 
 hereafter brought, or now pending and undetermined in this 
 Commonwealth, shall abate by reason of the death of the 
 plaintiff therein ; but the same may be prosecuted by the 
 executors or administrators of said plaintiff, who shall be 
 substituted as plaintiffs therein on the record, on suggestion 
 of the death of the plaintiff, to recover the annual value of 
 the said plaintiff's estate in dower, or the rents, issues, and 
 profits thereon from the time of the decease of the husband 
 until the date of the death of the original plaintiff in such 
 action." 
 
 Some Modes hy which Doiver may he Barred. 
 
 § 177. Dower may be barred by an election to take 
 under the Avill of the husband.^ So it may be barred by 
 joining with the husband in a conveyance of the land, and 
 an acknowledgment of the deed as required by the Act 
 of 24th February, 1770, section 2 (1 Sm. 307).^ It is 
 barred, also, by a sheriff's sale, under a levari facias on a 
 mortgage executed by the husband alone after the mar- 
 riage.* Lands in Pennsylvania are assets for the payment 
 of debts, and it results from this that any judicial sale of 
 the husband's lands for the payment of his debts would bar 
 the wife's dower.^ In Pennsylvania, a divorce a vinculo 
 matrimonii is in every case a bar to dower. Even when the 
 
 ' Act of 20th February, 1854, sec- * Soott v. Crosdale, 2 Ball. 127, 
 tion 1 (P. L. 89). s. c, 1 Y. 75. 
 
 2 Ante, p. 138. ^ See Scott v. Crosdale, 1 Y. 75. 
 
 ' Ante, p. 70. 
 
HER EIGHTS IN HER HUSBANd's ESTATE. 155 
 
 divorce is obtained by the wife on the ground of the adul- 
 tery of the husband is her dower barred.^ 
 
 § 178. Under the statute of Westminster, 13 Edw. I., 
 section 1, c. 34, in force in Pennsylvania,^ elopement, or, to 
 speak more accurately, a voluntary separation by the wife 
 from the husband, and adultery, bar a wife of dower, unless 
 the husband becomes reconciled to her, and suffers her to 
 dwell with him. But voluntary separation and adultery by 
 the wife are necessary to make the bar complete. The 
 elopement, however, need not be with the adulterer, for 
 even where there has been a voluntary separation, by 
 mutual agreement, the statute applies. But it is still neces- 
 sary that she should have separated herself from him 
 sponte — willingly.^ 
 
 ' Mittimore v. Mittimore, 4 Wi-. her husband's lands, if she be eon- 
 
 156. vioted thereupon, except that her 
 
 ^ Rob. Dig. 188. By the statute it is husband willingly, and without coer- 
 
 provided"thatifawife willingly leave cion of the church, reconcile her, and 
 
 her husband, and go away and con- suffer her to dwell with him, in which 
 
 tinue with her adulterer, she shall be ease she shall be restored to action." 
 
 barred forever of action to demand ' Reel v. Elder, 2 P. F. S. 316. 
 her dower that she ought to have of 
 
156 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XV. 
 
 WIDOW MAY RETAIN THREE HUNDRED DOLLARS. 
 
 § 179. By the Act of 14th April, 1851, section 5 (P. L. 
 613), it is provided that "Hereafter the widow or the chil- 
 drenof any decedent dying within this Commonwealth, testate 
 or intestate, may retain either real or personal property be- 
 longing to said estate to the value of three hundred dollars, 
 and the same shall not be sold, but suffered to remain for 
 the use of the widow and family ; and it shall be the duty 
 of the executor or administrator of such decedent to have 
 the said property appraised, in the same manner as is pro- 
 vided in the Act passed the 9th day of April, in the year 
 1849, entitled, 'An Act to exempt property to the value of 
 three hundred dollars from levy and sale on execution and 
 distress for rent.' Provided, that this section shall not 
 affect or impair any liens for the purchase-money of such 
 real estate. And the said appraisement, upon being signed 
 and certified by the appraisers, and approved by the 
 Orphans' Court, shall be filed among the records thereof." 
 Section 1 of the Act of 8th April, 1859 (P. L. 425), enacts 
 that " The widow or children of any decedent entitled to 
 retain three hundred dollars out of such decedent's estate by 
 the laws of the Commonwealth" ..." may elect to retain 
 the same, or any part thereof, out of any bank notes, money, 
 stocks, judgments, or other indebtedness to such person. 
 And in all cases hereafter, where property shall be set 
 apart for the widow and children of any decedent, the same 
 shall be appraised and set apart to said widow and children 
 by the appraisers of the other personal estate of said dece- 
 dent." Section 1 of the Act of 27th November, 1865 (P. L. 
 1866, 1227), provides that "Whenever any widow or chil- 
 
WIDOW MAT RETAIN THREE HUNDRED DOLLARS. 157 
 
 dren of any decedent shall claim the benefit of the Act" (of 
 14th April, 1851) "out of the real estate left by said dece- 
 dent, and the real estate appraised shall consist of a single 
 messuage or tenement, lot of ground, or other real estate 
 which cannot be divided without prejudice, or spoiling the 
 whole, and the appraisers may have appraised, or shall ap- 
 praise and value, the same at any sum not exceeding six 
 hundred dollars, it shall and may be lawful for the Orphans' 
 Court, to whom such application shall be made, to confirm 
 such appraisement, and to set apart, for the use of the 
 widow or children, such messuage or tenement, lot of 
 ground, or other real estate ; conditioned, however, that the 
 person or persons in whose behalf the claim is made shall 
 pay the amount of the valuation or appraisement, in excess 
 of the three hundred dollars, within one year from the date 
 of confirmation of such valuation. Provided, that if the 
 widow and children interested in said real estate refuse to 
 take the same at such appraisement, the Court, on applica- 
 tion of any person interested, shall grant an order to sell 
 the same, in the manner provided by law for the sale of 
 real estate of decedents, after proceedings in partition." 
 And by section 2 of the same Act it is enacted " That the 
 real estate, if taken by the widow or children, as aforesaid, 
 shall vest in her or them, and their heirs or assigns, abso- 
 lutely, upon her or them paying the surplus over and 
 above the sum of three hundred dollars to the parties 
 legally entitled thereto. Provided, that if the real estate 
 shall not be so taken at the appraisement, but should be 
 sold as provided for in the Act, then the sum of three hun- 
 dred dollars of the purchase-money shall be paid to the 
 widow or children entitled thereto, and the balance, after 
 payment of costs and expenses, distributed to the heirs, or 
 other persons legally entitled thereto." 
 
 § 180. Nothing more was intended by the Act of 1851 
 
158 THE LAW OF MARRIED 'WOMEN. 
 
 than a temporary provision for the widow and those imme- 
 diately dependent on the deceased. It was not designed 
 as a statute of distributions. Where, therefore, there is a 
 widow, the three hundred dollars are to be paid directly to 
 her though there be adult children living. In a certain 
 sense she is a trustee for herself and family, but she is re- 
 sponsible only in a court of conscience. The law has left 
 to her discretion the proper use of the fund placed in her 
 hands, declaring only that it is intended for herself and the 
 family.-^ The appraisement of property retained is to her, 
 vesting the title of the decedent in her, and she may sell, 
 though she is entrusted with it for the benefit of herself and 
 children.^ And, of course, if she has no children it is hers 
 absolutely.^ The confirmation of the appraisement is an 
 adjudication of the property mentioned in the inventory to 
 her. It is a judgment in rem, is conclusive against all the 
 world, and vests the property in her absolutely.* 
 
 § 181. She is entitled to the exemption, under the Act, 
 as against debts not liens upon her husband's estate, con- 
 tracted before its passage,'^ and exclusive of her share 
 under the intestate Act.'' And whether the husband dies 
 testate or intestate, solvent or insolvent, or whether the 
 widow elects to take under the will, if there be one, or pre- 
 fers her statutory rights in the distribution of the estate,' 
 she is entitled, out of the proceeds of the sale of real estate, 
 in preference to a judgment creditor, in whose favor the 
 husband had waived the benefit of the Act of 1849, exempt- 
 ing three hundred dollars' worth of property from levy and 
 
 ' Nevin's Appeal, 11 "Wr. 230; j). Hill, 6 Wr. 198. See Neff's Ap- 
 
 Sipes V. Mann, 3 Wr. 414. peal, 9 H. 243. 
 
 ^ 2 Sipes w. Mann, supra. ^ Bowermaster v. Bowermaster, 0. 
 
 ' Compiler v. Compiler, 1 C. 31. C, Lancaster, 27th April, 1849, cited 
 
 * Bunyan's Appeal, 3 C. 121 ; 1 Purd. Dig. 416, note e. 
 
 Soult's Appeal, 1 Norris 153. ' Compiler v. Compiler, 1 C. 31. 
 
 » Baldy's Appeal, 4 Wr. 328 ; Hill 
 
WIDOW MAY RETAIN THREE HUNDRED DOLLARS. 159 
 
 sale/ and as against a mechanic's lien creditor.^ And 
 although, by the express language of the Act, she cannot 
 claim against a lien for the purchase-money of the property, 
 she can against a judgment creditor for money which he 
 loaned the husband to pay for the property.^ 
 
 § 182. Her claim is postponed to the lien of a judgment 
 against her husband which was obtained prior to the passage 
 of the Act, and which continued a lien until the husband's 
 death.* So a claim made by the children of the decedent 
 is postponed to arrears of ground rent acci'uing after the 
 decedent's death; the real estate, upon his death, having 
 descended to them as heirs, and they taking it subject to 
 the payment of the ground rent accruing while they were 
 the owners.^ 
 
 § 183. The widow is not entitled, however, under all cir- 
 cumstances, to the benefit of the Act. Thus, a widow who 
 had deserted her husband more than twelve years before 
 his death, without reasonable cause, though there had been 
 no actual divorce, was held not entitled." So the Act does 
 not apply to the case of a wife who has lived in a foreign 
 country for years, separated from her husband, and who 
 never formed part of his family here.'' Nor to that of one 
 who lived separate and apart from her husband, under ar- 
 ticles of separation, by which they agreed to live separate 
 and apart, and she with her trustee covenanted that she 
 would not claim any jointure, dower, or third out of her 
 husband's estate.* Nor where the woman was never the 
 lawful wife of the decedent." Nor one who has been divorced 
 
 ' Spencer's Appeal, 3 C. 218. 510 ; Odiorne's Appeal, 4 P. F. S. 
 
 ' Hildebrand's Appeal, 3 Wr. 133. 175. 
 
 ' Notte's Appeal, 6 Wr. 361. ' Spier's Appeal, 2 C. 233. 
 
 ' Rishell I!. Rishell, 12 Wr. 243. « Dillenger's Appeal, 11 C. 357. 
 
 ' Pepper's Estate, 1 Phila. 562. See Hutton v. Duey, 3 Barr 104. 
 
 6 Tozer v. Tozer, 2 Am. L. R. ' Shaak's Est., 18 Pitts. L. J. 118. 
 
160 THE LAW OP MARRIED WOMEi^f. 
 
 a mensa et thoro} The Act contemplates the case of a ■wife 
 who lives with her husband till his death, and faithfully per- 
 forms all her duties to his family, not one who voluntarily 
 separates herself from him, and performs none of the duties 
 imposed by the relation.^ 
 
 § 184. The appraisement should be made immediately 
 after the administrator has qualified himself to act. He is 
 to cause it to be done with the promptitude with which the 
 sheriff or constable proceeds, under the Act of 9th April, 
 1849 (P. L. 533), when a similar amount of a debtor's goods 
 are to be exempted from sale.^ The 2d section of that Act 
 provides " That the sheriff, constable, or other officer 
 charged with the execution of any warrant issued by com- 
 petent authority, for the levying upon and selling the pro- 
 perty, either real or personal, of any debtor, shall, if re- 
 quested by the debtor, summon three disinterested and com- 
 petent persons, who shall be sworn or affirmed to appraise the 
 property which the said debtor may elect to retain under 
 the provisions of this Act," &c. The Act, it will be ob- 
 served, fixes no time within which the appraisement must 
 be made, but would seem to require it to be proceeded with 
 at once. 
 
 § 185. The claim must be made in a reasonable time after 
 the husband's death ; in the forms of a legal administration, 
 and while a widow. A delay of seven years, and through a 
 second husband, would be fatal to the claim.* And a widow 
 
 ' Hettriok v. Hettriok, 5 P. F. S. penses of burial, is not entitled to 
 
 290. See Hill v. Hill, 6 Wr. 198. money payable by a beneficial society 
 
 ^ Odiorne's Appeal, 4 P. F. S. 175 ; to " his widow or relative for and 
 
 Piatt's Appeal, 30 P. F. S. 504. towards his decent interment;" Bcr- 
 
 So a wife who had been separated lin Beneficial Society v. March, 33 
 
 from her husband by mutual under- Leg. Int. 32S. 
 
 standing, for several years, and is ' Yandevort's Appeal, 7 Wr. 462. 
 
 not living with him at the time of his * Burk v. Gleason, 10 Wr. 297. See 
 
 death, and who did not pay the ex- Shumate v. M'Garity, 2 Norris 3S. 
 
WIDOW MAY RETAIN THREE HUNDRED DOLLARS. 161 
 
 whose husband died before the passage of the Act is not 
 entitled.^ But a married woman is not required to take 
 notice, at her peril, of the death of her husband who has 
 deserted her, and been absent for a long period before and 
 at the time of his death.^ The widow is not entitled to any 
 portion of the proceeds of real estate sold for payment of 
 debts, where no election to retain either real or personal 
 estate was made before sale.® And this notwithstanding 
 the Act of 8th April, 1859, allowing her to retain three 
 hundred dollars, or any part thereof, out of any bank notes, 
 money, stocks, judgments, or other indebtedness of the de- 
 cedent.* The demand for an appraisement is too late if not 
 made until after the administrator has incurred expenses in 
 proceedings to effect a sale of real estate.^ But if her claim 
 has not been fully satisfied out of the personalty, and in 
 process of administi'ation the realty is converted into money, 
 she may claim her deficiency out of that.® The right of the 
 widow is a personal one, and may be waived, and it is 
 waived entirely where she neglects to demand an appraise- 
 ment.' This applies equally to real estate, and it makes no 
 difiTerence that it consists of but one tract of land which 
 could not be divided f or if an appraisement be made, and 
 she elect to retain less than the value of three hundred dol- 
 lars, she waives her claim to all which she neglects to retain.'' 
 
 ' Shumate v. M'Garity, 34 Leg. Phila. 623, it was held that where 
 
 Int. 77. the lands of a decedent are inoa- 
 
 ^ Terry's Appeal, 5 P. F. S. 344. pable of division, the claim is pay- 
 
 ' Neff's Appeal, 9 H. 243 ; Crause's able out of the proceeds of sale, 
 
 Estate, 6 Phila. 71. although a demand was not made 
 
 " Dech's Estate, 6 Phila. 72. before sale, and this as against a 
 
 " Davis's Appeal, 10 C. 256. judgment creditor of the decedent. 
 
 ^ Lyman's Admr. v. Byam, 2 Wr. But the law would seem to be set- 
 
 475. tied otherwise. There must be a 
 
 ' Weaver's Appeal, 6 H. 309 ; Neff's proper appraisement made. 
 
 Appeal, 9 H. 243 ; Davis's Appeal, * Hufman's Appeal, supra, 
 
 supra; Hufman's Appeal, 31 P. F. "Davis's Appeal, sttpra ; Soult's 
 
 S. 329. In Lehman v. Dorley, 8 Appeal, 1 Norris 153. 
 11 
 
162 THE LAW OP MARRIED WOMEN. 
 
 For there can be but one appraisement.^ But where she 
 claims three hundred dollars out of the estate, and elects to 
 take chattels appraised at less than that amount, and the 
 balance out of a designated security, and the appraisement 
 of the chattels is approved by the court, she is not precluded 
 from receiving the balance out of the proceeds of the secu- 
 rity because this part of the thing claimed was not appraised 
 with the chattels, and at the same time set out, reported to 
 the court, and confirmed by it ; for, Avhere money is claimed, 
 if a demand has been made in proper time, the money may 
 be claimed in the administration account without any ap- 
 praisement. " It is not the widow's claim," says Mr. Jus- 
 tice Woodward, as a reason for this, " but the appraisement 
 of chattels elected to be retained, on which it is made the 
 duty of the court to pass. The right to elect rests in the 
 statutes, and is a question between the widow and the admin- 
 istrator."^ This, however, would not seem an accurate 
 statement of the law, for, as we have seen,^ the court do 
 pass upon the claim itself, when the right is disputed. 
 The claim is waived unless made before the expenses of full 
 administration are incurred, as well in respect to the per- 
 sonalty as to the realty.* And a waiver once made is past 
 recall.^ So she is too late if she neglects to make her claim 
 until after the payment of debts, and a sufficient amount 
 does not remain in the hands of the administrator to pay 
 the expenses of administration and the amount claimed by 
 her.® But where the property in the executor's hands is 
 chiefly money, or soon reduced to money, and all debts are 
 paid, and a surplus of money remains in the executor's 
 hands, to be distributed among legatees, and where no in- 
 
 ' Soult's Appeal, 1 Norris 153. see Zimmerman v. Briner, 14 Wr. 
 
 ^ Soult's Appeal, supra. See Bal- 535 ; JVIaier's Estate, 1 Leg. Gaz. 475. 
 
 dy's Appeal, 4 Wr. 328 ; Peterman's ° Baskin's Appeal, supra, per 
 
 Appeal, 26 P. F. S. 116. Woodward, J. 
 
 » Ante, p. 159, sec. 183. « Tibbins Estate, 5 Phila. 100. 
 
 * Baskin's Appeal, 2 Wr. 65. And 
 
WIDOW MAY RETAIN THREE HUNDRED DOLLARS. 163 
 
 terests have intervened from the time of taking out letters 
 testamentary, it is not too late for the widow to present her 
 claim before the money is distributed, and this may be done 
 before the auditor of the executor's account.^ Where the 
 three hundred dollars are claimed out of notes and evidences 
 of debt, the property need not be appraised.^ 
 
 § 186. The widow cannot compel the legal representative 
 to sell property in order to give her three hundred dollars 
 in money, instead of taking the goods to that amount. The 
 Act of April 8, 1859, authorizes the widow and children to 
 elect to retain the three hundred dollars, or any part thereof, 
 out of any bank-notes, money, stocks, judgments, or other 
 indebtedness of such person. They are to retain, which 
 implies that the articles were in the hands of the decedent 
 at the time of his death. The legal representative, there- 
 fore, cannot be called on to sell the goods in order to raise 
 money.^ Nor can the Orphans' Court order a sale of dece- 
 dent's real estate for the purpose of giving the widow this 
 statutory allowance. The Acts contemplate an election on 
 her part of realty or personalty, and an appraisement, not 
 an Orphans' Court sale.* But where a widow had elected 
 to take a part of her claim in personal property and the 
 balance in real estate, and the appraisers set apart the per- 
 sonal property, and reported that the real estate could not 
 be divided so as to set apart as much thereof as would 
 amount in value to the balance for the widow, without 
 injury to or spoiling the whole, and they therefore deter- 
 mined against a division of the real estate, or any part or 
 tract of it, and their report was confirmed by the Orphans' 
 
 ' Kirkpatriok's Estate, 5 Phila. 98. '' Witmer's Estate, 2 Leg. Gaz. 355, 
 
 See Baldy's Appeal, 4 Wr. 328 ; Hur- per Pearson, P. J. 
 
 ley's Estate, 35 Leg. Int. 68. ' Lyman's Admr. v. Byam, 2 Wr. 
 
 ^ Larrison's Appeal, 12 C. 130. 475. 
 
164 THE LAW OF MABEIED WOMEN. 
 
 Court, and the real estate was afterwards, and after par- 
 tition made in the Orphans' Court, sold by the heirs, it was 
 held that the balance of the widow's claim was a charge 
 upon the land in the hands of the alienees, and that the 
 Orphans' Court could enforce payment by a decree of sale 
 of the land.^ Her re-marriage does not affect the payment 
 of the money to her by her husband's executor, and he 
 cannot recover it back from her on that account.^ 
 
 § 187. Ordinarily the benefit to be derived from the Act 
 of 1851 should be under the supervision of the Orphans' 
 Court; but where the executor refuses to allow the property 
 to be appraised and remain with the widow, and converts 
 the whole estate into money, she may maintain an action in 
 the Court of Common Pleas to recover damages for the 
 injury sustained.^ Her remedy is a special action on the 
 case, or, at her option, she can maintain assumpsit for money 
 had and received to her use, but in the case of personalty, 
 she cannot maintain trespass, as the possession of the per- 
 sonalty is in the personal representative, and the widow has 
 neither a general nor special property in any particular 
 goods until after the election and appraisement.* If she 
 appropriate to her own use three hundred dollars' worth of 
 her deceased husband's personal property, this would be a 
 defence in an action by her for damages against his admin- 
 istrator for not setting apart for her property to that 
 amount.' 
 
 May retain Property under the Domestic Attachment Act. 
 
 § 188. The 20th section of the Act of 13th June, 1836, 
 relating to domestic attachments (P. L. 610), provides 
 
 ' Detweiler'8 Appeal, 8 Wr. 243. ' Neely v. M'Cormiok, 1 C. 255. 
 
 ■' Hilt V. Walton, 34 Leg. Int. 115. * Lyman's Admr. v. Byam, 2 Wr. 
 
 " Compiler v. Corapher, 1 C. 31 ; 475 ; see Speakman's Appeal, 21 P. 
 
 Soult's Appeal, 1 Norris 153. F. S. 25. 
 
WIDOW MAY RETAIN THREE HUNDRED DOLLARS. 165 
 
 " That the wife and family (if any) of such debtor shall 
 be entitled to retain for their own use such articles as may 
 by law be exempted from levy and sale upon execution." 
 Where, therefore, property has been set apart to the wife 
 under this Act, the waiver of exemption by the husband to 
 his creditor, though good against him, is of no avail against 
 the property thus set apart to the wife and family for their 
 use. Such property ceases to be the property of the hus- 
 band for the purpose of execution.-^ 
 
 ' Hess V. Beates, 28 P. F. S. 431. 
 
166 
 
 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XVI. 
 
 CERTAIN ACTS AND FUNCTIONS A MARRIED WOMAN MAY PERFORM. 
 
 She may act as Trustee, Administratrix, &c. 
 
 § 189. A married woman, like others non sui juris, may 
 be trustee, and her legal incapacity to sue in her own name 
 may be obviated by joining the- husband.^ So coverture 
 forms no incapacity for the ofQce of administratrix, and if a 
 feme covert be next of kin to the intestate, administration 
 should be granted to her. The assent, however, of the hus- 
 band is necessary ; and this assent may be evidenced by 
 his joining with her in the administration bond. If he re- 
 fuses or neglects, the register would be jastified in with- 
 holding the letters, unless in case of his absence or incom- 
 petency,- when it seems a stranger may take his place in 
 the bond.^ 
 
 She may exercise Parental Rights to the Exclusion of the 
 Hushand in certain cases. 
 
 § 190. A married woman may, by statute, in certain 
 cases, exercise parental rights to the exclusion of her hus- 
 band. By the Act of 4th May, 1855, section 3 (P. L. 
 430),^ whenever a husband or father, from drunkenness, 
 
 ^ Still V. Ruby, lie. 374. prenticeship, without the interference 
 
 ^ Gyger's Estate, 15 P. F. S. 313. of such husband, the same as the 
 
 " The section provides that ■' When- father can now do by law : Provided, 
 
 soever any husband or father, from always, that she shall afford to them 
 
 drunkenness, profligacy, or other a good example, and properly edu- 
 
 cause, shall neglect or refuse to pro- cate and maintain them according to 
 
 vide for his child or children, the her ability : And provided, that if 
 
 mother of such children shall have the mother be of unsuitable charao- 
 
 all the rights, and be entitled to ter to be entrusted as aforesaid, or 
 
 claim, and be subject to all the du- dead, the proper court may appoint a 
 
 ties reciprocally due between a father guardian of such children, who shall 
 
 and his children, and she may place perform the duties aforesaid, and ap- 
 
 them at employment, and receive ply the earnings of such children for 
 
 their earnings, or bind them to ap- their maintenance and education.'' 
 
ACTS ANH FUNCTIONS A MARRIED WOMAN MAY PERFORM. 167 
 
 profligacy, or other cause, shall neglect or refuse to provide 
 for his children, the mother shall have all the rights, and be 
 entitled to claim, and be subject to all the duties recipro- 
 cally due betvpeen a father and his children. She may 
 place them at employment and receive, their earnings, or 
 bind them to apprenticeship, without the husband's inter- 
 ference, the same as the father can do by law ; provided, 
 she afford them a good example, and properly educates and 
 maintains them according to her ability. But if she is not 
 of suitable character to be thus trusted, or if she be dead, 
 the proper court may appoint a guardian of the children, 
 who shall perform those duties, and apply the earnings of 
 the children for their maintenance and education. 
 
 She may Appoint a Testamentary Guardian of her Children 
 in Certain Cases. 
 § 191. By section 6 of the Act of 4th May, 1855 
 (P. L. 431), it is enacted that no father who shall have 
 "for one year or upwards previous to his death wilfully 
 neglected or refused to provide for his child or children, 
 shall have the right to appoint any testamentary guardian 
 for him, her, or them, during minority." In any case 
 coming within the provisions of this section, the wife, if 
 living, would seem to possess the power of appointing a 
 testamentary guardian for her children, under the 3d 
 section, which enacts, as we have just seen, that " When- 
 soever any husband, from drunkenness, profligacy, or 
 other cause, shall neglect or refuse to provide for his 
 child or children, the mother of such children shall have 
 all the rights, and be entitled to claim, and be subject to 
 all the duties reciprocally due between a father and his 
 children;" one of which rights unquestionably is the ap- 
 pointment of a testamentary guardian for his children, a 
 right which the wife does not ordinarily possess.^ 
 
 ^ See Act "Relating to last Wills Vanartsdalen, 2 H. 384; Robinson v. 
 and Testaments," of 8th April, 1833, Zollinger, 9 Watts 169. 
 g 4 (P. L. 249) ; Vanartsdalen v. 
 
168 THE LAW OF MARRIED WOMEN. 
 
 t 
 
 CHAPTER XVII. 
 
 IN CASE OF wife's INSANITY. 
 
 § 192. By section 7 of the Act of 28th October, 1851 
 (P. L. 725), it is provided that " When any married woman 
 in this Commonwealth hath become insane, it shall be law- 
 ful for her husband, upon application to the Court of Com- 
 mon Pleas of the proper county, to select and appoint three 
 discreet and intelligent persons, one of whom shall be a 
 practicing physician, who shall make an examination, per- 
 sonal or otherwise, of such alleged insanity, and report the 
 facts to the Court, and if the said Court be fully satisfied 
 that the said married woman is insane, and approve the said 
 report, the same shall be filed of record in said Court ; and 
 the husband shall thenceforth, upon giving good and suffi- 
 cient security to the Commonwealth for the faithful per- 
 formance of his trust, have full power to transact all busi- 
 ness relating to the management or disposition of his or her 
 real and personal estate, in as full and ample a manner as 
 he might or could do if his said wife was sane, and gave her 
 full consent thereto." 
 
 Illegitimate Children. 
 
 § 193. By the Act of 27th April, 1855, section 3 (P. L. 
 368),^ illegitimate children take and are to be known by 
 the name of their mother, and they and their mother re- 
 spectively have capacity to take or inherit from each other 
 personal estate as next of kin, and real estate, as heirs, in 
 
 ^ The section is as follows : " lUe- estate as next of kin, and real estate 
 
 gitimate children shall take and be as heirs in fee simple ; and as respects 
 
 known by the name of their mother, said real or personal estate so taken 
 
 and they and their mother shall re- and inherited, to transmit the same 
 
 epectively have capacity to take or according to the intestate laws of 
 
 inherit from each other, personal this State." 
 
IN CASE OF wife's INSANITY. 169 
 
 fee simple, and transmit the same according to the intestate 
 laws of this State. This does not legitimatize illegitimate 
 children, but merely gives the child and mother capacity to 
 inherit from each other, as next of kin and heirs ; and the 
 operation of the Act, as regards the child, is confined to pro- 
 perty taken or inherited from the mother, leaving all property 
 derived by the child from other sources unaffected by the Act. 
 So that, where the child survives the mother, and dies in- 
 testate, unmarried, and without issue, the brothers and 
 sisters of the mother and their descendants, who are the 
 next of kin to the mother, would not inherit from the 
 child ; and if they did, they could only take such property 
 as the child had derived from the mother.-' Where there 
 are both legitimate and illegitimate children, the ille- 
 gitimate are entitled to share in the proceeds of the real 
 estate of their deceased mother equally with a legitimate 
 child.^ 
 
 ' Grubb's Appeal, 8 P. F. S. 55. ^ Opdyke's Appeal, 13 Wr. 373. 
 
170 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XVIII. 
 
 SETTLEMENT OF MARRIED WOMEN UNDER THE POOR LAWS. 
 
 § 194. By the Act of 13th June, 1836, section 10 (P L. 
 543), "Every married woman shall be deemed, during cover- 
 ture, and after her husband's death, to be settled in the place 
 where he was last settled; but if he shall have no known set- 
 tlement, then she shall be deemed, whether he be living or 
 dead, to be settled in the place where she was last settled 
 before her marriage." And it is a principle of law that Sifeme 
 sole who has a settlement exchanges it at her marriage for the 
 settlement of her husband, if he has one ; but if he has not, 
 her maiden settlement remains till she acquires another. So 
 the widow of a man who has a settlement has it also, and if 
 the coverture be dissolved by a divorce a vinculo matrimonii, 
 she still retains his settlement.-^ But though she has a legal 
 settlement in the place where her husband was living at the 
 time of his death, this does not prevent her from acquiring 
 a different settlement by her own act when she has become 
 sui juris by his decease.^ It is the headship of the family 
 which gives the settlement of the father to his children. 
 And upon his death, it is the same as to the mother, who 
 then becomes the head of her family.^ And a wife divorced 
 a mensa et ilioro for cruel and barbarous treatment and in- 
 dignities to her person by the husband, who has deserted 
 her and moved out of the State, may acquire a settlement 
 in her own right, entitling her to support as a pauper.* 
 
 § 195. An order of removal of a married woman to the 
 
 ' Buffaloe v. Whitedeer, 3 H. ' Burrell Township v. Guardians, 
 
 184. supra. 
 
 2 Mifflin Township v. Elizabeth, < Overseers of Poor of Williamsport 
 
 6 H. 20 ; Burrell Townsliip v. Guard- v. Overseers of Poor of Eldred Town- 
 
 ians, 12 P. F. S. 472. ship, 34 Leg. Int. 280. 
 
SETTLEMENT OP MARRIED WOMEN. 171 
 
 place where she was last legally settled before her mar- 
 riage is not defective because it does not appear therein that 
 her husband had no known legal settlement, as this might 
 have been amended, both in form and substance, and the 
 Supreme Court will not presume that he had any such set- 
 tlement, nor make any intendment against the order.^ If 
 removed in the lifetime of her husband, the Act of 13th 
 June, 1836, section 17 (P. L. 546), provides "That it 
 shall not be lawful, by virtue of any order of removal, to 
 separate a wife from her husband." 
 
 ' Reading v. Cumreej 5 Binn. 81. 
 
172 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XIX. 
 
 DESERTION OF WIFE OR CHILDREN BY HUSBAND, OR OF CHILDREN 
 BY THE MOTHER. 
 
 § 196. By the Act of March 31, 1812, section 6 (5 Sm. 393, 
 applicable when passed only to the city of Philadelphia, dis- 
 trict of Southwark, and township of the Northern Liberties, 
 and now to the city of Philadelphia only), it is provided that 
 " Whereas, it sometimes happens that men separate them- 
 selves without reasonable cause from their wives and desert 
 their children, and women also desert their children, leaving 
 them a charge on the city, district, and township, although 
 such persons have estates, rights and credits which should 
 contribute to the maintenance of such wives and children ; be 
 it therefore enacted, &c., That it shall and may be lawful for 
 the guardians of the poor in the said city, district and town- 
 ship, having first obtained a warrant or order from two alder- 
 men of the said city, or from two of the justices of the peace 
 of the county residing in the said district or township where 
 such wife or children shall be so left or neglected, to take and 
 seize so much of the goods and chattels, rights and credits, 
 and receive so much of the annual. rents and profits of the 
 lands and tenements of such husband, father or mother, as 
 such two aldermen or justices shall order and direct, for 
 providing for such wife, and for maintaining and bringing up 
 such child or children, which warrant or order being con- 
 firmed at the next Mayor's Court for the city, or Quarter 
 Sessions for the county, it shall and may be lawful for the 
 said court there to make an order for the guardians of the 
 poor to dispose of such goods and chattels, rights and 
 credits, by sale or otherwise, or so much of them, for the 
 purpose aforesaid, as the court shall think fit, to receive the 
 rents and profits, or so much of them as shall be ordered by 
 
DESEETION OF WIFE OR CHILDREN BY HUSBAND. 173 
 
 the said court, of his or her lands and tenements, for the 
 purpose aforesaid ; and if no real or personal estate, rights 
 and credits of such husband, father or mother, can be 
 found wherewith provision may be made as aforesaid, it 
 shall and may be lawful for the said court to order the pay- 
 ment of such sums as they shall think reasonable for the 
 maintenance of any wife or children so neglected, and com- 
 mit such husband, father or mother to the common jail, 
 there to remain until he or she comply with the same order, 
 give security for the performance thereof, or be otherwise 
 discharged by the said court; and on complaint made to 
 any alderman of the city of Philadelphia, or to any justice 
 of the peace residing in the district of Southwark or town- 
 ship of Northern Liberties, of any wife or children there 
 being so neglected, such alderman or justice shall take 
 security from the husband, father or mother neglecting as 
 aforesaid for his or her appearance at the next Mayor's 
 Court, or Court of Quarter Sessions, there to abide the deter- 
 mination of the said court, and for want of security, to commit 
 such persons." This section appears not to be repealed by 
 the general Act of 13th June, 1836 (P. L. 547), the 45th 
 section of which excepts special provisions. The material 
 difference, however, in the two Acts is in allowing bail in 
 the first instance, as this Act does, as auxiliary to the pro- 
 ceeding to be taken by one magistrate.^ By the Act of 
 14th April, 1853 (P. L. 418), it is enacted that so much of 
 this section "as requires the warrant therein provided for 
 to issue before two aldermen or justices of the peace, be and 
 the same is hereby repealed, and one alderman or justice of 
 the peace is hereby authorized and empowered to issue the 
 said warrant." 
 
 § 197. In Commonwealth v. Nathans,^ decided in 1845, 
 
 ' See note to Commonwealth v. "2 Barr 143. 
 Nathans, 2 Barr 138 ; Guardians v. 
 Nathans, 3 Penn. L. J. R. 139. 
 
174 THE LAW OF MARRIED WOMEN. 
 
 it was held that cases arising under the Act of 1812, or 
 " under the poor laws," could not be adjudicated by a single 
 judge of the Court of Quarter Sessions for the City and 
 County of Philadelphia; but that, under the Act of 3d 
 February, 1843 (P. L. 8), creating that Court, two judges 
 were required. The Act of 26th March, 1846 (P. L. 
 173), was then passed, which provides: "Section 1. 
 That in addition to the proceedings heretofore authorized, 
 it shall and may be lawful, on complaint made by or on 
 behalf of the guardians for the relief and employment of the 
 poor of the city of Philadelphia, the district of Southwark, 
 and the townships of the Northern Liberties and Penn, 
 before any alderman of the City and County of Philadel- 
 -phia, that any man has without reasonable cause separated 
 himself from or deserted his wife, child or children, or has 
 deserted his child or children, leaving the said wife or 
 children a charge on the said city, district or townships, or 
 likely to become chargeable to the said city, district or 
 townships, for such alderman to issue a wai-rant to appre- 
 hend the person so charged, and take from him security 
 for his appearance at the then present or next Court of 
 Quarter Sessions for the City and County of Philadelphia, 
 there to abide the determination of said court ; and, for 
 want of such security, to commit such person to the prison 
 of the said city and county. 
 
 " Section 2. It shall and may be lawful for any one 
 judge of the Court of Common Pleas, holding a Coui-t of 
 Quarter Sessions, to order such husband or father to give 
 security to such guardians for the payment of such sums of 
 money as the said judge shall think reasonable, for the 
 maintenance of any wife or children so neglected, and com- 
 mit such husband or father to prison, there to remain until 
 he comply with said order, or be discharged from confine- 
 ment under the provisions of the Act relating to insolvent 
 debtors, passed June sixteenth, one thousand eight hundred 
 
DESERTION OF WIFE OR CHILDREN BY HUSBAND. 175 
 
 and thirty-six : Provided, that such husband or father 
 shall not be entitled to make application for his discharge, 
 under the said Act, until after he shall have been in actual 
 confinement, in pursuance of said order, for a period not less 
 than three months." 
 
 § 198. The Act of 13th June, 1836 (P. L. 547), provides : 
 "Section 29. That if any man shall separate himself 
 from his wife without reasonable cause, or shall desert his 
 children, or if any woman shall desert her children leaving 
 them a charge upon the district, in any such case it shall be 
 lawful for any two magistrates of the county, upon com- 
 plaint made by the overseers of the district, to issue their 
 warrant to such overseers, therein authorizing them to take- 
 and seize so much of the goods and chattels, and receive so 
 much of the rents and profits of the real estate of such man 
 or woman as, in the judgment of the said magistrates, shall 
 be sufficient to provide for such wife, and to maintain and 
 bring up such children, which sum or amount shall be speci- 
 fied in such warrant ; but if sufficient real or personal estate 
 cannot be found, then to take the body of such man (or 
 woman) and bring him (or her) before such magistrates, at 
 a time to be specified in such warrant. 
 
 " Section 30. It shall be lawful for such magistrate, on 
 the return of such warrant, to require security from such 
 man or woman, for his or her appearance at the next Court 
 of Quarter Sessions of the county, there to abide the order 
 of the court, and for want of such security to commit such 
 person to the jail of the county. 
 
 " Section 31. The warrant aforesaid shall be returned to 
 the next Court of Quarter Sessions of the county, when it 
 shall be lawful for the said court to make an order for the 
 payment of such sums as they shall think reasonable for the 
 purpose aforesaid, and therein authorizing the overseers to 
 dispose of the goods and chattels aforesaid, by sale or other- 
 
176 
 
 THE LAW OF MARRIED WOMEN'. 
 
 wise, and to collect and receive the rents and profits afore- 
 said, or so much of either as in the judgment of the court 
 shall be sufficient for the purpose aforesaid; but if there be 
 no real or personal estate, it shall be lawful for the court 
 to commit such person to the jail of the county, there to 
 remain until he or she comply with such order, give security 
 for the performance thereof, or be discharged by due course 
 of law." 
 
 § 199. By the Act of 13th April, 1867 (P. L. 78), it is 
 enacted : " Section 1. That in addition to the remedies now 
 provided by law, if any husband or father, being within the 
 limits of "this Commonwealth, has or hereafter shall sepa- 
 rate himself from his wife, or from his children, or from 
 wife and children, wnthout reasonable cause, or shall neglect 
 to maintain his wife or children, it shall be lawful for anj^ 
 alderman, justice of the peace, or magistrate of this Com- 
 monwealth, upon infoi'mation made before him under oath 
 or affirmation, by his wife or children, or either of them, 
 or by any other person or persons, to issue his warrant to 
 the sheriff, or to any constable, for the arrest of the person 
 against whom the information shall be made as aforesaid, 
 and bind him over, with one sufficient -surety, to appear at 
 the next Court of Quarter Sessions, there to answer the 
 said charge of desertion. 
 
 " Section 2. The information, proceedings thereon, and 
 warrant, shall be returned to the next Court of Quarter 
 Sessions, when it shall be lawful for the said court, after 
 hearing, to order the person against whom complaint has 
 been made, being of sufficient ability, to pay such sum as 
 such court shall think reasonable and proper, for the com- 
 fortable support and maintenance of the said wife or chil- 
 dren, or both, not exceeding one hundred dollars per month, 
 and to commit such person to the county prison, there to 
 remain until he comply with such order, or give security by 
 
DESERTION OP WIFE OR CHILDREN BY HUSBAND. 177 
 
 one or more sureties to the Commonwealth, and in such 
 sum as the court shall direct, for the compliance there- 
 with. 
 
 " Section 3. The cost of all proceedings by virtue of 
 this Act shall be the same as are now allowed by law in 
 cases of surety of the peace, to be imposed in like manner; 
 and all proceedings shall be in the name of the Common- 
 wealth; and any wife so deserted shall be a competent 
 witness on the part of the Commonwealth, and the husband 
 shall also be a competent witness. 
 
 " Section 4. Should any such person abscond, remove, 
 or be found in any other county of the Commonwealth than 
 the one in which said warrant issued, he may be arrested 
 therein, by the said warrant, being backed by any alderman 
 or justice of the peace of the county in which such person 
 may be found, as is now provided for backing warrants by 
 the third section of the Act of 31st March, 1860."i By a 
 Supplement to this Act, passed 15th April, 1869 (P. L. 
 75), it is provided " That whenever the Court of Quarter 
 Sessions of any county in the Commonwealth shall, under 
 the second section of the Act to which this is a Supple- 
 ment, commit the person complained of to the county prison, 
 there to remain until he comply with their order, or give 
 
 ' P. L. 429. By this section it is warrant was originally directed, to 
 
 declared to be lawful for, and made execute the same in such other city 
 
 " the duty of any alderman, justice or or county, out of the jurisdiction of 
 
 justices of the city or county where the alderman, justice or justices 
 
 such person" as is mentioned in the granting such warrant as aforesaid, 
 
 section "shall escape, go into, reside, and to apprehend and carry such of- 
 
 or he, upon proof being made, upon fender before the alderman, justice or 
 
 oath or affirmation, of the hand- justices who indorsed such warrant, 
 
 writing of the judge, alderman, jus- or some other alderman, justice or 
 
 tioe or justices granting such war- justices of such other city and county 
 
 rant, to indorse his or their name or where such warrant was indorsed." 
 
 names on such warrant, which shall Whereupon, the Act makes provision 
 
 be sufficient authority to the person as to bail, and subsequent proceed- 
 
 or persons bringing such warrant, ings. 
 and to all other persons to whom such 
 12 
 
178 THE LAW OF MARRIED WOMEN. 
 
 security, et cetera, it shall be lawful for the said court at 
 any time after three months, if they shall be satisfied of 
 the inability of such person to comply with the said order 
 and give such security, to discharge him from imprison- 
 ment." In the title, this Act purports to be a Supplement 
 to another Act, but in Keller v. Commonwealth,^ it has been 
 held to be a Supplement to this Act of 13th April, 1867.^ 
 
 § 200. The Act of 1867, by its terms, applies only to 
 desertion by the husband or father, and not to desertion by 
 the mother of her children, as does the Act of 1836. And it 
 differs from the Act of 1836, among other things, in that the 
 information or complaint may be made by the wife or children, 
 or indeed by any one,^ instead of by the overseers of the dis- 
 trict only; it may be made to one magistrate instead of two; 
 applies to cases where the husband "shall neglect to main- 
 tain his wife or children," even though he should not have 
 separated himself from his wife, or deserted his children, 
 " leaving them a charge upon the district ;" and it allows in 
 the first instance of an arrest of the person only, whUe the 
 Act of 1836 authorizes a seizure of the goods and chattels, 
 and reception of rents and profits of the real estate of the 
 offender, by the overseers of the district, under authority 
 given them by the warrant of the magistrates ; and an 
 arrest of the person in case sufiScient real or personal estate 
 to provide for the wife, and maintain and bring up the chil- 
 dren, cannot be found. 
 
 § 201. The law regards a desertion of this kind as an 
 offence ; not indictable, indeed, but punishable by imprison- 
 ment, unless security is given to comply with the order of 
 
 ' 21 P. F. S. 416. is not proposed further to refer to in 
 
 ^ There are a number of local Acts this work, 
 confined to particular counties or ^ Demott u. Commonwealth, 14 P. 
 cities of the State, which are referred F. S. 304 ; Ex parte Bailey, 27 Leg- 
 to in the foot-notes of Purdon's Di- Int. 399. 
 gest, under the title " Poor,'' which it 
 
DESERTION OF WIFE OR CHILDREN BY HUSBAND. 179 
 
 the court.^ Ordinarily, where the husband is domiciled in 
 another State, the guardians of the poor have no jurisdiction, 
 under the Act of 1836, of desertion by him, his domicil, 
 in law, being also the domicil of the wife.^ But the Act 
 of 1867 is broader in its terms, and allows any wife deserted 
 by her husband to make complaint to an alderman, if the 
 parties are within the Commonwealth ; and such a proceed- 
 ing is entirely independent of the guardians of the poor. 
 The Act would seem to create a distinct offence, viz. : that 
 of desertion, which may be committed within our jurisdic- 
 tion, whether the parties are domiciled here or not. The 
 whole scope of the Act implies that the desertion must take 
 place within this State.^ But there is nothing in the Act to 
 confine the jurisdiction of the offence to the court of the 
 county where the defendant has his residence or settle- 
 ment.* 
 
 § 202. The reasonable cause which relieves from a war- 
 rant under the 29th section of the Act of 1836 is such only 
 as will relieve the husband from the legal duty of maintenance, 
 this being the object of the law to enforce ; and it is only 
 for a cause of divorce that he will be discharged from that 
 duty.* A husband who, by cruel and barbarous treatment, 
 compels his wife to withdraw from his habitation and pro- 
 tection, is liable to proceedings under the Act for desertion.'^ 
 It is not necessary that the wife and children should be 
 declared paupers, in due form of law, by the previous order 
 of two justices to authorize proceedings to seize the hus- 
 
 ^ Commonwealth v. Keeper of the F..S. 304; Keller v. Commonwealth, 
 
 Jail, 4 S. & R. 506 ; Demott v. Com- 21 P. F. S. 413. 
 
 monwealth, 14 P. F. S. 302; Ex parte ^ Sterling v. Commonwealth, 2 Gr. 
 
 Bailey, 27 Leg. Int. 399. 164. See Commonwealth v. Shafer, 
 
 ^ Ex parte Bailey, supra. 1 Luz. Reg. 221. 
 
 ' Ex parte Bailey, supra, per Pax- * Directors v. Mercer, 3 Penn. L. J. 
 
 son, J. 304. 
 
 "' Demott V. Commonwealth, 14 P. 
 
180 THE LAW OF MAERIED WOMEN. 
 
 band's property for their maintenance.'^ Nor is the husband 
 entitled to notice, under the Act of 1812, previously to the 
 seizure of his property.^ Nor, apparently, under that of 
 1836, as the two Acts are very similar in this respect. And 
 in these proceedings the wife herself would seem to be a 
 competent witness to prove her marriage with the defen- 
 dant.^ 
 
 § 203. Under the Act of 1812, the guardians of the poor 
 must make the complaint for desertion of the wife and chil- 
 dren, and the guardians, and not the Commonwealth, should 
 be named as plaintiffs.* And so, under the Act of 1836, 
 the overseers of the district must make the complaint, as, 
 by the express terms of the Act, the warrant is to issue 
 upon their complaint, just as, by the Act of 1812, it is made 
 the duty of the guardians of the poor to obtain the warrant." 
 But, under the Act of 1836, the fact that the warrant issued 
 in the name of but one of the directors of the poor would 
 be cured by the joinder of a majority of the board in its 
 execution." The right to hold to bail given to one magis- 
 trate by the Act of 1812 is but auxiliary to the proceeding 
 authorized before two justices, and that complaint must, 
 therefore, be made by the same persons, viz. : the guardians 
 of the poor.^ 
 
 § 204. Under the Act of 1812 (and it would be the same 
 under the Act of 1836), the aldermen or justices must direct 
 in the warrant how much of the goods and chattels of the hus- 
 band shall be seized. The warrant is defective if they make a 
 
 ' Sterling v. Commonwealth, 2 Gr. 365 ; Commonwealth v. Hill, 2 Bro. 
 
 163. 212. 
 
 2 Overseers v. Smith, 2 S. & R. 263. « Worrell's Case, 11 P. F. S. 105. 
 
 ^ Guardians v. Nathans, 2 Brewst. ^ Sterling v. Commonwealth, 2 Gr. 
 
 149. 163. 
 
 * Commonwealth u. Nathans, 2 Barr ' Commonwealth v. Nathans, 2 
 
 142; Overseers v. Smith, 2 S. & R. Barr 141. 
 
DESERTION OF WIFE OR CHILDREN BY HUSBAND. 181 
 
 general order for the seizure of his property.^ As to the 
 subjects of seizure, choses in action cannot be seized, under 
 the Act of 1836.^ The Act of 1812 expressly authorizes 
 the seizure of " goods and chattels, rights and credits ;" but 
 the Act of 1836 omits "rights and credits." Nor, of 
 course, can property, held en autre droit, as executor, ad- 
 ministrator, &c.^ A lease for years, however, is not a chose 
 in action, but a chattel real, and may be seized under this 
 Act.* 
 
 § 205. To justify a warrant of arrest either undertheAct of 
 1812 or that of 1836, it must appear that sufficient real or 
 personal estate of the defendant could not be found.^ 
 
 § 206. It is the right of the defendant to prove before 
 the Court of Quarter Sessions that he had not deserted his 
 wife, but that she had deserted him.'' And it would be 
 error in the Court of Quarter Sessions, upon the hearing of 
 the defendant, who was bound over to answer a charge of 
 deserting his wife, to order payment of a weekly sum for 
 the support of his child, in addition to a weekly sum 
 ordered for the support of the wife. The order must be 
 confined to the original charge.^ 
 
 § 207. The pendency of an action brought by the grand- 
 father to recover the amount alleged to be due him for the 
 support and maintenance of the children of the defendant, 
 at the time of the institution of the action, is no bar to a 
 
 ' Guardians v. Picard, 1 S. & R. ' Commonwealth v. Nathans, 
 
 240. Barr 142; Worrell's Appeal, 11 P. 
 
 ^ Sterling v. Commonwealth, 2 Gr. P. S. 107. 
 
 165. ^ Overseers v. Smith, 2 S. & R, 
 
 ' Guardians v. Roberts, 5 S. & R. 305. 
 
 112. ' Anthony's Appeal, 3 Pitts. L. J, 
 
 ■■ Sterling v. Commonwealth, 2 Gr. 420. 
 166. 
 
 o 
 
182 
 
 THE LAW OF MARRIED WOMEN. 
 
 proceeding by the grandfather against the father under the 
 Act of 1867; the latter being made for the purpose of ob- 
 taing an order of the Court requiring the defendant to pay 
 for their future support and maintenance.^ And it is 
 clear, from all the provisions of the Act, that it was not 
 intended to provide a remedy for the recovery of the 
 expense previously incurred in the support of minor chil- 
 dren vrhose father had deserted or neglected to maintain 
 them.^ 
 
 § 208. Whenever the father is willing to take charge of 
 his children, support, maintain and educate them as becomes 
 a parent, he is entitled to their custody, and to obtain a 
 suspension of the order of the Court of Quarter Sessions, 
 and in the end a vacation of the decree, on satisfying the 
 Court that he is maintaining them properly.^ So it is 
 generally true that where a husband, after separation, offers 
 in good faith to receive his wife, and expresses his willing- 
 ness to maintain her if she will come home and do her 
 duty, the Court will not, b}^ this summary mode, devote 
 his property to her support without his consent. But this 
 rests in the discretion of the Court; and it ought to be 
 convinced, not only that the offer is made in sincerity, but 
 that, from the character and conduct of the man, there is 
 a reasonable probability it will be faithfully adhered to.* 
 
 § 209. The decision of the Court of Quarter Sessions in 
 desertion cases is not final and conclusive, but a certiorari 
 lies from the Supreme Court to remove their order and 
 examine the regularity of their proceedings f but not for 
 
 ^ Keller !). Commonwealth, 21 P. r. ■'Directors v. Mercer, 3 P. L. J. 
 
 S. 417. 304. See Commonwealtb i\ Jones, 
 
 ^ Keller v. Commonwealth, siipra. supra. 
 
 ^ Keller D. Commonwealth, siijjj-n; ^Overseers v. Smith, 2 S. & R. 
 
 Demott V. Commonwealth, 14 P. F. S. 3fi6 ; Lower Augusta v. Selin.sgrove, 
 
 305. See Commonwealth v. Jones, 1 14 P. F. S. 167. 
 Luz. Leg. Reg. 46. 
 
DESERTION OP WIFE OR CHILDREN BY HUSBAND. 183 
 
 the purpose of trial, or review of their judgment on the 
 merits, as on appeal.^ 
 
 § 210. The decree of the Court of Quarter Sessions does 
 not affect the rights of creditors of the husband existing 
 before the seizure of his property. The Court authorizes 
 the seizure subject to the right of all other persons ; and 
 the guardians have no better right than the defendant 
 himself has.^ Nor is the decree itself affected by a sub- 
 sequent discharge of the husband under the insolvent laws 
 as to future payments. The discharge could only affect 
 payments then due.^ 
 
 ^ Commonwealth v. Nathans, 5 ^ Thomas v. McCready, 5 S. & R. 
 Barr 124 ; Lower Augusta v. Selins- 389. 
 grove, 14 P. F. S. 167. ' Newhouse v. Com., 5 Wh. 83. 
 
184 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XX. 
 
 DIVORCE. 
 
 § 211. Divorce is either the dissolution or the partial 
 suspension, by law, of the marriage relation. The dissolu- 
 tion is termed divorce from the bond of matrimony, or, 
 according to the Latin expression, a vinculo matrimonii ; the 
 suspension, divorce from bed and board — a mensa et thoro. 
 In the former case the marriage is terminated -^ in the 
 latter it continues.^ The term divorce is sometimes also 
 applied where the marriage, or supposed marriage, was 
 never valid, but a nullity from the beginning. In this case, 
 however, the decree is more properly one declaring the 
 nullity of the marriage.^ 
 
 Divorce from the Bond of Matrimony. — Causes of Divorce. 
 
 § 212. The causes of divorce in Pennsylvania, as pre- 
 scribed by statute, are the following : 
 
 1. That either party, at the time of the (marriage) con- 
 tract, was, and still is, naturally impotent, or incapable of 
 procreation. 
 
 2. That he or she hath knowingly entered into a second 
 marriage, in violation of the previous vow he or she made 
 to the former wife or husband, whose marriage is still sub- 
 sisting. 
 
 3. That either party shall have committed adultery. 
 
 4. WUful and malicious desertion and absence from the 
 habitation of the other, without a reasonable cause, for and 
 during the term of two years. 
 
 5. When any husband shall have, by cruel and barbarous 
 treatmeiit, endangered his wife's life ; or, 
 
 , 1 Act of 13th March, 1815, § 8 (6 ^ Clark v. Clark, 6 AV. & S. 87. 
 Sm. 286) ; Flory v. ]?eaker, 2 Barr 472 ; ^ Bouv. Law Diet., tit. Divorce. 
 Miltmore v. Miltmore, 4 Wr. 156. 
 
mvoKCE. 185 
 
 6. Offered such indignities to her person as to render her 
 condition intolerable and life burdensome, and thereby force 
 her to withdraw from his house and family. 
 
 7. Where the wife shall have, by cruel and barbarous 
 treatment, rendered the condition of her husband intoler- 
 able or life burdensome. 
 
 8. Marriages within the degree of consanguinity or affi- 
 nity, according to the table established by law (which are 
 declared void). 
 
 9. Where the alleged marriage was procured by fraud, 
 force, or coercion, and has not been subsequently confirmed 
 by the acts of the injured party. 
 
 10. Where either of the parties shall have been con- 
 victed of a felony, and sentenced by the proper court, either 
 to the county prison of the proper county or to the peniten- 
 tiary of the proper district, for any term exceeding two 
 years ; Provided, that such application for a divorce be 
 made by the husband or wife of the party so convicted and 
 sentenced. 
 
 11. Where the wife is lunatic, or non compos mentis, on 
 petition, or libel, by a relative or next friend of the wife. 
 
 12. Where either party has been absent for two years, 
 and the other, upon false rumor of the death of the absent 
 one, marries again, and the absent one returns unmarried. 
 
 Naturally Impotent or Incapable of Procreation. 
 
 § 213. This is the first of the causes of divorce men- 
 tioned in the Act of 13th March, 1815 (6 Sm. 286).^ 
 
 ' The 1st section prO¥ides as fol- procreation ; or that he or she hath 
 lows: — "That whenever a marriage knowingly entered into a second mar- 
 hath been heretofore, or shall here- riage, in violation of the previous 
 after be, contracted and celebrated vow he or slie made to the former 
 between any two persons, and it shall wife or husband, whose marriage is 
 be judged, in the manner hereinafter still subsisting; or that either party 
 mentioned, that either party, at the shall have committed adultery ; or 
 time of the contract, was and still is wilful and malicious desertion and 
 naturally impotent or incapable of absence from the habitation of the 
 
186 THE LAW OF MARRIED WOMEN. 
 
 Impotence is treated of as incurable, curable, accidental, or 
 temporary. Absolute or incurable impotence is that for 
 which there is no known relief, principally originating in 
 some malformation or defect of the genital organs. Where 
 this defect exists at the time of the marriage, the marriage 
 may be declared void ab initio by the ecclesiastical law, as 
 well as our own.-^ This cause of divorce arises primarily 
 from high considerations of public policy. " The great end 
 of matrimony," says Gibson, C. J.^ (in speaking of divorce 
 on the ground of adultery, — and it is equally applicable to 
 divorce for impotency), "is not the comfort and conveni- 
 ence of the immediate parties, though these are necessarily 
 embarked in it, but the creation of a progeny having a legal 
 title to maintenance by the father ; and the reciprocal taking 
 for better, for worse, for richer, for poorer, in sickness and 
 in health, .to love and cherish till death, are important but 
 only modal conditions of the contract, and no more than 
 ancillary to the principal purpose of it ;" and he then alludes 
 to " the paramount purposes of the marriage" as " the pro- 
 creation and protection of legitimate children, the institu- 
 tion of families, and the creation of natural relations among 
 mankind, from which proceed all civilization, virtue, and 
 happiness to be found in the world." Cases of divorce for 
 the causes of impotency, however, are not of frequent occur- 
 rence. 
 
 Second Marriage while First Subsistint/. 
 
 § 214. A prior marriage renders a second marriage of 
 either of the parties during the existence of the first abso- 
 
 other, without a reasonable cause, for her to withdraw from his house and 
 
 and during the term of two years ; family ; in every such case it shall 
 
 m- when any husband shall have, by and may be lawful for the innocent 
 
 cruel and barbarous treatment, en- and injured person to obtain a di-' 
 
 dangered his wife's life, or offered vorce from the bond of matrimony." 
 
 such indignities to her person as to ' Bouv. Law Diet., tit. Impotence, 
 
 render her condition intolerable and ' Matohin v. Matohin, 6 Barr 337. 
 life burdensome, and thereby force 
 
DIVORCE. 187 
 
 Mely void} And, although it is made a cause of divorce 
 by the Act of 13th March, 1815,^ a subsequent Act gives 
 the Court of Common Pleas power to decree such " sup- 
 posed or alleged marriage" to be null and void, upon the 
 application of an innocent or injured partj.^ 
 
 § 215. Although it is undoubtedly true that a second 
 marriage during the existence of the first is alsohdely void, 
 and all the legal consequences of such a condition of the 
 parties thereto, both as to persons and property, must 
 necessarily follow, yet the manner in which that condition 
 must be made to appear has been the subject of judicial 
 discussion, and it may be a question whether the parties 
 can, in any case, themselves legally act upon the mere fact 
 itself, as within their own knowledge, and the law as thus 
 pronounced in reference to it. Thus it has been held that 
 the second wife, in such a case, cannot treat the second 
 marriage as a nullity for the purpose of commencing a civil 
 action against her husband in fad, as though she were sole, 
 as the court cannot judicially know that the mariiage, sub- 
 sisting as it does in form, was not binding in law, and in 
 such an action that issue cannot be tried and determined. 
 The wife must first establish the nullity of her marriage by 
 a judicial proceeding instituted for the purpose, before she 
 can get a footing in court against the husband.* There are 
 
 ' Kenley v. Kenley, 2 Y. 207 ; Ileff- alleged marriage to be null and void, 
 
 ner J). Heifner, 11 H. 104; Rumpff u. upon the application of an innocent 
 
 A^ichestein, 16 Pitts. L. J. 84. or mjured party ; and the jurisdiction 
 
 ' Aiite, p. 185, n. 1. shall be exercised, and proceedings 
 
 ^ The Act of 14th April, 1859, sec- conducted, according to the principles 
 
 tion 1 (P. L. 647), enacts "that in all and forms which are or shall be pre- 
 
 cases where a supposed or alleged scribed by law for cases of divorce 
 
 marriage shall have been contracted, from the bond of matrimony." 
 
 which is absolutely void by reason of * Griffith v. Smith, 3 Penn. L. J. 
 
 one of the parties thereto having a 151, Dist. Court, C. C. P. ; Harrison 
 
 husband or wife living at the time, v. Harrison, 1 Phila. 389, Com. Pleas 
 
 the Court of Common Pleas shall have Phila. Co. 
 power to decree the said supposed or 
 
188 THE LAW OP MARRIED WOMEN. 
 
 three modes by which this end can be attained, viz. : either 
 by proceedings for divorce under the Act of 13th March, 
 1815 (which, as we have seen, enumerates this as one of 
 the causes of divorce from the bonds of matrimony) ; or 
 by proceedings under the Act of 14th April, 1859 (P. L. 
 647),^ for a decree that the second marriage is null and 
 void ; or by prosecution and conviction of the offender for 
 bigamy under the Act of 31st March, 1860, section 34 (P. 
 L. 392) : this Act, like that of 1705 (1 Sm. 29), providing 
 that on such conviction the second marriage shall be void.^ 
 
 § 216. But, under this view of the law, other questions 
 arise out of this abnormal condition of the parties, as to 
 their freedom of action, one of which is, whether a second 
 marriage, pending the existence of the first, may be so 
 far treated as a nullity by the parties themselves that 
 the innocent one may marry another without first having 
 the nullity of the second marriage judicially determined. 
 Would such a marriage be valid ? In Harrison v. Harri- 
 son,^ which was a libel for divorce, the court was of the 
 opinion that by the Act of 13th March, 1816, it was not the 
 intention of the Legislature to declare that an invalid mar- 
 riage is binding upon the contracting parties, so as to exact 
 a performance of the reciprocal obligations incident to the 
 mari'ied state, but simply to prevent other marriages being 
 contracted by persons thus situated, until the existence of 
 
 ' AnU, p. 187, n. 2. and the second marriage shall be 
 
 ' Harrison v. Harrison, 1 Phila. 389. void : Provided, that if any husband 
 
 The section enacts that "If any person or wife, upon any false rumor, in ap- 
 
 shall have two wives or two husbands pearance well founded, of the death 
 
 at one and the same time, he or she of the other (when such other has 
 
 shall be guilty of a misdemeanor, and been absent for two whole years), 
 
 on conviction, be sentenced to pay a hath married, or shall marry again, 
 
 fine not exceeding one thousand dol- he or she shall not be liable to the 
 
 lars, and to undergo an imprisonment, penalties of fine and imprisonment 
 
 by separate and solitary confinement imposed by this Act." 
 at labor, not exceeding two years, " Supra. 
 
DIVORCE. 189 
 
 legal disability has been judicially determined, and a sen- 
 tence of divorce has been had, dissolving the nuptial tie. 
 That as the same Act which declares a previous marriage 
 to be a sufficient ground of divorce confers the power to 
 decree the divorce, and then provides (section 8), "After 
 such sentence," &c., the parties shall be at liberty to marry 
 again, by implication, the law prohibits a marriage lefore 
 decree, where the mode pointed out by this Act is resorted 
 to for relief, by the injured party. And so, too, the same 
 result would seem to follow, upon the reasoning of this 
 case, where the proceeding was under the Act of 1705, or 
 that of 31st March, 1860, by prosecution for bigamy, 
 as these Acts provide that on conviction of the offender, 
 the second marriage shall be void. But the effect of 
 a proceeding under the Act of 14th April, 1859, to 
 decree the second marriage void, would appear to be very 
 different, as that Act proceeds entirely upon the theory 
 that the second marriage is " absolutely void," and the 
 sole purpose of the proceedings is to declare it so by 
 judicial determination. In other words, the Act regards the 
 marriage void ah initio, and provides the means of judicially 
 determining its nullity. If this be a correct view of the 
 effect of this Act, it would seem to follow that since its 
 passage, the marriage of the innocent party to another, 
 before the second marriage has been decreed void under this 
 Act, is valid, and that such decree at any time afterwards 
 would have the effect of pronouncing the second marriage 
 void ah initio. 
 
 Adultery. 
 
 § 217. Adultery consists in sexual intercourse by a mar- 
 ried person with any person not his or her wife or husband.^ 
 By the Act of Assembly of 31st March, 1860, section 36 
 
 ' Helfrioh v. Commonwealth, 9 C. 68. 
 
190 
 
 THE LAW OF MARRIED WOMEN. 
 
 (P. L. 392), it is proAdded that "If any married man shall 
 have carnal connection with any woman not his lawful 
 wife, or any married woman have carnal connection with 
 any man not her lawful husband, he or she so offending 
 shall he deemed guilty of adultery." Adultery is not 
 only a cause of divorce, but a criminal offence, punishable 
 by fine and imprisonment. An unmarried person having 
 carnal connection with a married one is not guilty of adul- 
 tery.^ But the married person is thus guilty, according to 
 the definition above given. 
 
 § 218. It is never necessary to prove the direct fact of 
 adultery ; for, being committed in secret, it could seldom be 
 proved except by circumstances ; and the circumstances are 
 sufficient whenever they would lead the guarded discretion of 
 a reasonable and just man to a conclusion of guilt. Thus, a 
 wife's visit with a man to a brothel, or to a man at his 
 lodgings, has been held sufficient proof of it, because it 
 would be impossible to assign an innocent motive for such 
 a meeting.^ 
 
 § 219. Insanity on the part of the wife, at the time of 
 committing adultery, is no bar to a divorce for that cause ; 
 even though the insanity was so absolute as to have effaced 
 from her mind the first lines of conjugal duty. It would, 
 however, be a defence to an indictment for it. The offence 
 is a social as well as a moral one. And a libel for divorce, 
 for the cause of adultery, is said to partake of the nature of 
 a criminal proceeding : " but the primary intent of it is, un- 
 doubtedly, to keep the sources of generation pure, and when 
 they have been corrupted, the preventive remedy is to be 
 applied without regard to the moral responsibility of the 
 subject of it."^ 
 
 ' Respublica v. Roberts, 2 Dall. ' Matchin i*. Matchin, 6 Barr 336, 
 124 ; s. c, 1 Y. 6. per Gibson, C. J. 
 
 ■' Matchin v. Matchin, 6 Barr 338. 
 
DIVORCE. 191 
 
 § 220. By the Act of 13tli March, 1815, section 9 (6 
 Sm. 289), the wife or husband who shall have been guilty 
 of the crime of adultery is prohibited from marrying the 
 person with whom the crime was committed, during the life 
 of the former wife or husband.^ This provision, however, 
 applies onl}^ where there has been a divorce for the cause of 
 adultery; where, therefore, there has been a divorce for any 
 other cause, adultery committed with the person whom the 
 guilty party afterwards married would not avoid the subse- 
 quent marriage.^ The 7th section of the same Act pro- 
 vides that in a suit for divorce on the ground of adultery, 
 if the defendant allege and prove that the plaintiff had been 
 guilty of a like crime, it shall be a good defence to the suit.* 
 •By confining this defence to the single case of a divorce on 
 account of adultery, the Legislature may fairly be considered 
 as having intended to make it the only case in which such 
 a defence should be available, unless as a good excuse or 
 reasonable cause for the defendant's deserting the plain- 
 tiff.* 
 
 § 221. Under the 7th section of the Act of 13th March, 
 1815, in a suit for divorce, for the cause of adultery, con- 
 donation of the offence, after knowledge of its commission, 
 
 ' The section is as follows : " The of adultery, if the defendant shall 
 
 wife or husband who shall have been allege and prove that the plaintiff has 
 
 guilty of the crime of adultery shall been guilty of the like crime ; or has 
 
 not marry the person with whom the admitted the defendant into conjugal 
 
 said crime was committed, during the society or embraces, after he or she 
 
 life of the former wife or husband ; knew of the criminal fact ; or that 
 
 but nothing herein contained shall be the said plaintiff (if the husband) 
 
 construed to extend to, or affect, or allowed of the wife's prostitutions, or 
 
 render illegitimate, any children born received hire for them, or exposed his 
 
 of the body of the wife during cover- wife to lewd company, whereby she 
 
 tare." became ensnared to the crime afore- 
 
 ^ Hill«. Hill, 6 Wr. 198. said, it shall be a good defence and a 
 
 ^ The section provides " That in perpetual bar against the same :" 6 
 
 any action or suit commenced in the Sm. 288. 
 
 said Court for a divorce for the cause " Ristiue v. Ristine, 4 Rawle 461. 
 
192 
 
 THE LAW OF MAEEIED WOMEN. 
 
 is a good defence to the suit. If, therefore, such condona- 
 tion take place after the commencement of the suit, it is a 
 complete bar to that suit, and subsequent acts of adultery, 
 pending the suit, will not avoid this effect. The libellant 
 has no remedy but to begin de novo} But in a libel for 
 divorce a mensa et thoro, for cruel and barbarous treatment, 
 condonation after the commission of the acts complained of 
 is no bar to the divorce.^ And so condonation, after a 
 divorce a mensa et thoro, and decree for alimony for the 
 same cause of divorce, does not, it seems, annul the decree 
 for alimony ; and if the wife after the condonation leave her 
 husband in consequence of renewed acts of cruelty, the 
 decree may be enforced against him.'^ Condonation would 
 seem to be a bar to a divorce only where adultery was the 
 cause of divorce, and a bar in this case by virtue of the Act 
 of Assembly in question.* 
 
 Desertion. 
 
 § 222. By the express words of the Act of Assembly, 
 the desertion must be wilful and malicious, accompanied by 
 absence from the habitation of the party deserted, without 
 reasonable cause, for the space of two years.* The libellant 
 must establish with sufficient certainty each and every of 
 these ingredients, as elements necessary to constitute de- 
 sertion within the meaning of the Act. They all must 
 co-exist in proof, or no decree can be granted.^ Mere 
 separation is not desertion. Desertion is an actual aban- 
 donment of matrimonial cohabitation, with an intent to 
 desert, wilfully and maliciously persisted in, without reason- 
 able cause, for two years. But if either party withdraws 
 
 ' BroDson v. Bronson, 7 Phila. 406. ' Act 13th March, 1815, § 1, ante, 
 
 2 flollister v. HoUister, 6 Barr 449. p. 185, n. 1. 
 
 ' Nathans v. Nathans, 2 Phila. 373. « Angier v. Angier, 13 P. F. S. 
 
 * See Bronson v. Bronson, supra; 458. 
 Hollister v. Ilollister, supra. 
 
DIVORCE. 193 
 
 from the residence of the other, without reasonable cause 
 and without consent, the desertion is wilful and malicious.^ 
 The assent of either party to the other's withdrawal, 
 whether previous or subsequent thereto, prevents such ab- 
 sence from being wilful and malicious ; such assent, however, 
 is revocable, and if after its withdrawal the absence is con- 
 tinued, it amounts to desertion.^ But the absence must be 
 continued for two years at least, for if either leaves the 
 other with a view not to return, the law allows that 
 period as locus penitentice? And if the wife offers to return 
 to her husband, nothing less will justify him in refusing to 
 receive her than that which would be a sufficient cause for 
 divorce at the suit of the husband.* In this respect our 
 courts have adopted the principle which rules in the English 
 ecclesiastical courts. In that country, when cohabitation is 
 suspended by either the husband or wife of his or her own 
 motion, without sufficient reason, a suit for a restitution of 
 conjugal rights may be maintained by the injured party ; 
 and nothing amounts to a bar against such a suit, but such 
 facts as would entitle the defendant to a divorce.^ In the 
 language of Strong, J. :® " The interests of society, the 
 happiness of the parties, and the welfare of families, de- 
 mand such a rule. Separation is not to be tolerated for 
 light causes, and all causes are light which the law does not 
 recognize as ground for the dissolution of the marriage 
 bond." 
 
 § 223. So on the other hand, the reasonable cause which 
 would justify either party in abandoning the other must be 
 such as would entitle the injured party to a divorce.^ 
 
 ^Ingersoll e. Ingersoll, 13 Wr. Mbid. 
 
 251 ; McClurg's Appeal, 16 P. F. S. ' Cattison v. Cattison, 10 H. 276 ; 
 
 370 ; Smith v. Smith, 3 Phila. 493. Butler v. Butler, 1 Pars. 329 ; May v. 
 
 ' Butler V. Butler, 1 Pars. 329. May, 12 P. F. S. 210 ; Doan v. Doan, 
 
 = Boyd's Appeal, 2 Wr. 245. 4 Perm. L. J. 332 ; Angier v. An- 
 
 * Grove's Appeal, 1 Wr. 447. gier, 13 P. F. S. 460. 
 « Ibid. 
 
 13 
 
194 THE LAW OF MAKEIED WOMEN. 
 
 Where the husband, who had broken up housekeeping, and 
 taken, and proposed to his wife to take, boarding, which she 
 declined, and refused to follow him, if he has not acted in good 
 faith towards his wife, and her alleged desertion of him was 
 the result of his management, scheming and colorable conduct, 
 and such conduct on his part has acted upon the conduct of 
 the wife so as to keep her absent from him, he haying first 
 left her and her abode, this necessarily meets the allegation 
 of wilful desertion, and deprives him of any advantage from 
 those acts and conduct which he has promoted and designed. 
 In such a condition of things neither party could claim a 
 divorce ; their case would not be within the Act of Assem- 
 bly. This sort of conduct on the part of the husband would 
 be a mode of negativing the charge of wilful and malicious 
 desertion. He could not claim a divorce based upon his 
 own schemes to promote it. This would be permitting him 
 to take advantage of his own wrong. The party who would 
 win in such a contest must be clear of everything which is 
 charged as a cause of separation against the opposite party ; 
 and if the application is not, in fact, based upon the grounds 
 stated in the libel, but the causes set forth are to advance 
 a scheme or trick to make out a technical case to sever the 
 bonds of matrimony, the libellant cannot succeed.^ The 
 refusal of the wife to accompany her husband from a foreign 
 country, where they were domiciled, to this country, on his 
 removal hither, is not of itself wilful and malicious deser- 
 tion.^ Says Thompson, J.,^ in reference to the wife's re- 
 fusing so to accompany her husband : " The leaving home 
 and country, the dangers of a long ocean voyage, the priva- 
 tions of a stranger in a strange land, may have overmastered 
 her strongest desire to follow his footsteps further, and de- 
 termined her to cling to her native country." A bond given 
 by a husband to the guardians of the poor, conditioned for 
 
 ' Angier v. Angier, 13 P. F. S. " Bishop v. Bishop, 6 C. 415. 
 450. ' Ibid. 
 
DIVORCE. 195 
 
 the payment of a certain weekly sum for the support and main- 
 tenance of his wife, who was living apart from him, is a bartoa 
 libel for divorce by him for the cause of wilful and malicious 
 desertion. Such a bond negatives the fact of desertion on 
 the part of the wife.^ And, as we have seen,^ while the 7th 
 section of the Act of 13th March, 1815, provides that in a 
 suit for divorce on the ground of adultery, the like crime on 
 the part of the plaintiff shall be a good defence to the suit ; 
 yet this defence is restricted to suits for the cause of 
 adultery, and adultery committed by the husband after the 
 wife has separated herself from him is no bar to his obtain- 
 ing a divorce, in consequence of the wife's wilful and mali- 
 cious desertion of him ; though adultery committed before 
 her desertion would doubtless be a good excuse, or " reason- 
 able cause," and as such a defence, for the desertion.^ 
 
 § 224. Although the desertion must be for the period of 
 two years to entitle the injured party to a divorce, yet, 
 under section 5 of 26th April, 1850 (P. L. 591),* either 
 party may commence proceedings for the divorce at any 
 time not less than six months after the desertion, but a final 
 decree of divorce cannot be made until after the expii-ation 
 of two years from the time of desertion. 
 
 ' Vanleer v. Vanleer, 13 PI. 213. make application in such case, by 
 
 ^ Ante, p. 191. petition or libel, to the proper court, 
 
 "' Ristine v. Ristine, 4 Rawle 461. in accordance with the provisions of 
 
 * The section provides " That the the several Acts of Assembly now in 
 
 jurisdiction of the several Courts of force, at any time not less than six 
 
 Common Pleas of this Commonwealth months after such cause of divorce 
 
 shall hereafter extend to all cases of shall have taken place ; but the said 
 
 divorce from the bonds of matrimony court shall not proceed to make a 
 
 for the cause of wilful, malicious and final decree divorcing the said parties 
 
 continued desertion by either of the from the bonds of matrimony afore- 
 
 parties from the habitation of the said until after the expiration of two 
 
 other, without reasonable cause ; and years from the time at which such 
 
 it shall be lawful for either party to detertion took place." 
 
196 THE LAW OF MARRIED WOMEN. 
 
 Cniel and Barharous Treatment ly the Husband of the Wife. 
 
 § 225. The cruelty -which, under the Act of 1815/ en- 
 titles a wife to divorce from her husband, is actual personal 
 violence, or the reasonable apprehension of it, or such a 
 course of treatment as endangers her life or health, and 
 renders cohabitation unsafe. Thus a husband may, by a 
 course of humiliating insults and annoyances, practiced in 
 various fox'ms which ingenious malice could readily devise, 
 eventually destroy the life or health of his wife, although 
 such conduct may be unaccompanied by violence, positive 
 or threatened.^ "The cruelty," says King, P. J.,^ "is to be 
 judged from its effects, not solely from the means by which 
 those effects are produced. To hold, absolutely, that if a hus- 
 band avoids positive or threatened personal violence the wife 
 has no legal protection against any means short of these which 
 he may resort to, and which may destroy her life or health, 
 is to invite such a system of infliction by the indemnity 
 given the wrong-doer. The more rational application of the 
 doctrine of cruelty is to consider a course of marital unkind- 
 ness with reference to the effect it must necessarily pro- 
 duce on the life or health of the wife, and if it has been 
 such as affect or injure either, to regard it as true legal 
 cruelty." Mere acerbity of temper, or rigidity of domestic 
 discipline, does not constitute such legal cruelty.* To justify 
 desertion by the wife, or furnish cause for divorce, act's of 
 cruelty must be shown ; declarations and admissions alone 
 are not sufficient, though declarations may form a part;^ 
 neither is the fact that the husband lay in a separate bed f 
 nor his intention to obtain his wife's property ;' nor the sin- 
 gle act of pulling his wife's nose.^ Thou^ it is not neces- 
 
 ' ^nie, p. 185, n. 1. 345; Edwards u. Edwards, 29 Leg. 
 
 2 Butler V. Butler, 1 Pars. 344, per Int. 177 ; 9 Phila. 617. 
 
 King, P. J.; Gordon v. Gordon, 12 ^ Ibid. 
 
 Wr. 238. ' Esohbach v. Eschbaeh, swpra. 
 
 ^ Butler K. Butler, supra. ' Richards v. Richards, 1 Gr. 391 ; 
 
 * Butler V. Butler, supra. 1 Wr. 225 s. c. 
 
 ' Esohbach v. Eschbaeh, 11 H. 
 
DIVORCE. 197 
 
 sary there should be repeated and continuous acts of cruelty 
 to entitle the wife to a divorce. A single act of cruelty, on 
 a single occasion, may be so severe, and attended with such 
 corresponding circumstances, as might, under a liberal con- 
 struction of the Act, justify a divorce.-^ But every single 
 touching of the wife's person in anger, at a moment of sud- 
 den excitement or of passion, will not form such justifica- 
 tion.^ Indeed, no single act of cruelty, however severe, 
 that comes short of endangering life, is sufficient to justify 
 a divorce.^ And herein it difl'ers from indignities offered to 
 her person, which, in the terms of the Act, are sufficient if 
 they render her condition intolerable and life burdensome, 
 and thereby force her to withdraw from the husband's house 
 and family.* As we have seen, nothing is a defence to a 
 libel for divorce on account of desertion but such facts as 
 would entitle the defendant to a divorce.* Therefore, when- 
 ever it is held in such a libel that the desertion was justifi- 
 able, it is equivalent to holding that the defendant had good 
 cause of divorce. 
 
 Indignities to the Wife's person.^ 
 
 § 226. Indignities to the person of the wife constitute a 
 distinct cause of divorce from cruel and barbarous treat- 
 ment.^ These indignities do not mean mere personal indig- 
 nities.^ What acts, or course of conduct, will amount to 
 such indignities seem to be nowhere defined, and perhaps 
 they are incapable of specification or exact definition. But 
 they must be such as, in the language of the Act, render 
 the wife's condition intolerable, and her life burdensome. A 
 single act of indignity will not be sufficient. There must 
 
 1 Richards v. Richards, 1 Gr. 391 ; 1 « See Act of 13th March, 1815, sec- 
 
 Wr. 225, s. c. ; May v. May, 12 P. F. S. tion 1, ante, p. 185, n. 1. 
 
 210. ' Richards v. Richards, supra; May 
 
 ' Richards v. Richards, supra. v. May, supra. 
 
 ^ May V. May, supra. ' Butler v. Butler, 1 Pars. 344, per 
 
 * See May v. May, supra. Kif gi P- J- 
 
 ' Ante, 193. 
 
198 THE LAW OF MARRIED WOMEN. 
 
 be such a course of conduct, or continued treatment, as 
 renders the wife's condition intolerable and her life burden- 
 some.^ But the ill treatment, or indignities, to her person, 
 need not be such as to endanger her life or health.^ It is 
 sufficient that they would render her life too humiliating 
 and burdensome for her to bear.' 
 
 § 227. Where in answer to a libel by the husband 
 against the wife for desertion, she denies in her answer that 
 her desertion was wilful and malicious, and assigns as the 
 cause of her leaving her husband, his violent temper, intem- 
 perate habits, and repeated indignities to her person, which 
 had embittered her life, and that he had assaulted her with a 
 knife in his hand, hurt her and driven her off, and was guilty of 
 other cruel and barbarous treatment df such enormity as to 
 make her condition intolerable and life burdensome, and 
 thereby forced her to withdraw from his house, and the 
 court submitted to the jury the question whether the wife 
 had suffered such treatment as acquitted her of wilful and 
 malicious desertion from her duty and her husband's roof, 
 and the jury found that she had, the desertion was justified, 
 though tested by the rule that the reasonable cause which 
 would justify a wife in abandoning her husband must be 
 such as would entitle her to a divorce, this reasonable cause 
 having been found by the verdict of the jury.* So, frequent 
 intoxication of the husband, inducing the use of profane, 
 threatening, and abusive language towards his wife, by 
 which she was held in fear and terror, neglecting to provide 
 her with the necessaries of life, and finally beating her with 
 considerable severity, bruising and disfiguring her face, 
 without provocation, though but once, amount to such indig- 
 nities as rendered her life intolerable, and will entitle the 
 wife to a divorce.^ 
 
 iMay V. May, 12 P. F. S. 210; < Cottison u. Cottison, 10 11.276. 
 
 Richards v. Rioharda, 1 Wr. 227. ' Doan v. Doan, 4 Penna. L. J. 332, 
 
 ' May V. May, supra. C. P. Chester Co. 
 " Ibid. 
 
DIVORCE. 199 
 
 § 228. It is no bar to her suit for divorce that more than 
 two years elapsed between the time of her withdrawal from 
 the society of her husband and the commencement of her 
 proceedings against him, when she has continued to live 
 separate from him, and he has neglected to support her. 
 But if this period, or a large portion of it, had been passed 
 by the wife in the society of and cohabiting with her hus- 
 band, it would have amounted to an implied condonation, 
 sujBficient to defeat her application.^ So, if the harshness 
 and violence of the husband's conduct had been excited or 
 promoted by any impropriety of demeanor, or manifestation 
 of ill temper on the part of the wife, or by other conduct 
 incompatible with her duty, a divorce would not be granted.^ 
 
 Cruel and Barbarous Treatment hy Wife to Husband. 
 
 § 229. In Gordon v. Gordon,^ the court suggested that, 
 perhaps, the cruel and barbarous treatment by the wife 
 to the husband should under the Act of 8th May, 1854,* 
 be such as endangers life, to entitle the husband to a divorce, 
 or to justify him in turning his wife out of doors. But in 
 
 ' Doan V. Doan, 4 Penna. L. J. 335. proper county or to the penitentiary 
 ^ Doan V. Doan, supra. of the proper district, for any term 
 ^ 12 Wr. 237. exceeding two years : Provided, that 
 * This Act, section 1 (P. L. 644), such application for a divorce be 
 provides that, " In addition to the made by the husband or Tvife of the 
 cases now provided for by law, it party so convicted and sentenced, 
 shall be lawful for the Courts of Com- " III. Where the wife shall have, by 
 mon Pleas of this Commonwealth to cruel and barbarous treatment, ren- 
 grant divorces in the following cases : dered the condition of her husband 
 " I. Where the alleged marriage was intolerable, or life burdensome : Pro- 
 procured by fraud, force, or coercion, vided, that in cases of divorce under 
 and has not been subsequently con- this Act, if the application shall be 
 firmed by the acts of the injured made on the part of the husband, the 
 party. court granting such divorce shall 
 " II. Where either of the parties allow such support or alimony to the 
 shall have been convicted of a felony, wife as her husband's circumstances 
 and sentenced by the proper court will admit of, and as the said court 
 either to the county prison of the may deem just and proper." 
 
200 THE LAW OP MARRIED WOMEN. 
 
 Jones V. Jones/ the court held the law to be otherwise; and 
 that by the express language of the Act the cruel and bar- 
 barous treatment was such as rendered the condition of the 
 husband intolerable, or life burdensome. And that while this 
 would, of course, include acts endangering life, such acts 
 Avere not necessary, as a cause of divorce under the Act. The 
 cruel and barbarous treatment of the husband by the wife 
 must be either actual personal violence or the reasonable 
 apprehension of it, or such a course of treatment as endan- 
 gers his life or health, and renders cohabitation unsafe f and 
 not mere want of sympathy, disagreeable manners, ebullitions 
 of ill temper, or habitual disregard of feelings;' nor personal 
 indignities.* And a libel for divorce is fatally defective which, 
 under this Act, sets forth as cause for divorce, such indig- 
 nities to the person of the husband as rendered his condi- 
 tion intolerable, and such conduct generally as rendered his 
 life burdensome ; with the additional averment of grossly 
 immoral conduct, rendering the bringing up of the issue of 
 the marriage properly, impossible.^ The cruel and barbarous 
 treatment, under this Act, must receive the same interpre- 
 tation as the same words have in the Act of 1817, and 
 " obstinate silence, laziness, or wilful neglect of household 
 duties," are not sufficient cause of divorce under this Act.^ 
 And this cruel and barbarous treatment ought to be clearly 
 proved by acts, with their times, places and circumstances 
 given, so that it might be seen to be of the kind and degree 
 which the law requires.^ It is far from being clear that 
 under this Act the husband can obtain a divorce from bed 
 and board. But he is entitled to a divorce from the bond 
 of matrimony; and in such case he must be decreed to pay 
 
 1 16 P. F. S. 496. " Gordon u. Gordon, 12 Wr. 236. 
 
 2 Jones V. Jones, supra; Edwards " Miles v. Miles, 26 P. F. S. 358. 
 fc. Edwards, 29 Leg. Int. 117, 9 Phila. ^Harris v. Harris, 33 Leg. Int. 
 
 617 -, Gordon v. Gordon, 12 Wr. 238. 169 ; s. c, 2 Weekly Notes 331. 
 
 " Edwards v. Edwards, supra. See ' Edwards v. Edwards, supra. 
 Breinig v. Meitzler, 11 H. 160. 
 
DIVORCE. 201 
 
 alimony to the wife. Without this the decree is fatally 
 defective.^ But if successful in obtaining a divorce, he can- 
 not be decreed to pay all the costs.^ 
 
 § 230. The Act of 9th March, 1855, section 1 (P. L. 68), 
 confers upon the several courts of the State jurisdiction 
 " of all cases of divorce from the bonds of matrimony, for 
 the cause of personal abuse, or for such conduct on the part 
 of either the husband or wife as to render the condition of 
 the other party intolerable and life burdensome, notwith- 
 standing the parties were at the time of the occurring of 
 said causes domiciled in another State." This Act, however, 
 gives to neither of the parties any new cause of divorce. 
 Its sole purpose is to extend the jurisdiction of the courts 
 where the injury complained of is either cruel and barbar- 
 ous treatment, or personal indignities, notwithstanding the 
 parties were, at the time of the occurring of such causes, 
 domiciled in another State.'' 
 
 Marriages within the Degrees of Consanguinity or Affinity. 
 
 § 231. The degrees of consanguinity and af&nity, as es- 
 tablished by statute in Pennsylvania, have been set forth 
 in a preceding part of this work, under the title of " Inces- 
 tuous Marriages""^ and need not be repeated here. Although, 
 by the Act' establishing these degrees, marriages within the 
 degrees of consanguinity or affinity are declared void ; yet, 
 as the Act also declares that when any of such marriages 
 shall not have been dissolved during the lifetime of the 
 parties, their unlawfulness shall not be inquired into after 
 the death of either the husband or wife,** such marriages 
 
 1 Shoop's Appeal, 10 C. 235 ; Miles ^ Act of 31st March, 1860, § 39, 
 
 ». Miles, 26 P. F. S. 358. P. L. 393, ante, p. 20. 
 
 * Shoop's Appeal, supra. ^ Act of 13th March, 1815, J 5 (6 
 ' Gordon v. Gordon, 12 Wr. 236. Sm. 286), which enacts that " all mar- 
 
 * Ante, p. 19. riages within the degree of consan- 
 
202 
 
 THE LAW OF MARRIED WOMEN. 
 
 are not void, but voidable ; and a marriage, therefore, be- 
 tween uncle and niece, which had not been dissolved during 
 the lifetime of the parties, upon the death of either party 
 becomes conclusively a lawful marriage.^ But, in proceed- 
 ings instituted before the death of either of the parties for 
 a divorce, such marriage would seem to be, as to those pro- 
 ceedings, absolutely null and void, ab initio,^ and the appro- 
 priate decree, therefore, would appear to be, not one of 
 divorce from a valid marriage, but one declaring the nullity 
 of the marriage itself. 
 
 Marriages procured hy Fraud, Force or Coercion? 
 
 § 232. The libel for divorce must set forth " particularly 
 and specially" the causes thereof, the nature of the force 
 employed, the kind of fraud practiced, or in what consisted 
 the false representations. General allegations are not suffi- 
 cient. It is the most important element in the administra- 
 tion of justice, that the accused shall have notice of what 
 he is to answer ; and as to the kind of coercion or duress 
 which comes within the meaning of the Act, forcing the 
 libellant into the marriage contract, it must be either by 
 actual force, by imprisonment, or by putting in fear, as by 
 threats of death, or bodily harm : which constitute duress 
 j}er minas} Where fraud is alleged the evidence of the fraud 
 in procuring the marriage contract should be distinct. When 
 the evidence was, that the respondent stated to some of the 
 
 guinity or affinity, according to the said marriages shall not have been 
 
 table established by law, are hereby dissolved during the lifetime of the 
 
 declared void, to all intents and pur- parties, the unlawfulness of the same 
 
 poses; and it shall and may be lawful shall not be inquired into after the 
 
 for the Courts of Common Pleas of death of either the husband or wife." 
 
 this Commonwealth, or any of them, ' Parker's Appeal, 8 Wr. 309. 
 
 to grant divorces from the bonds of '' See Walter's Appeal, 20 P. F. S. 
 
 matrimony in such cases ; and the 393. 
 
 parties shall be subject to the like ' Act of 8th May, 1854, § 1, ante, 
 
 penalties as are contained in the Act p. 199, n. 4. 
 
 against incest But when any of the * Hoffman v. Hoffman, 6 0. 420. 
 
DIVORCE. 203 
 
 libellant's friends (not to him) that she was pregnant by 
 him, which, he ^lieges in his petition, he did not know at 
 the time was false, and by which he was induced to marry 
 her, and she was delivered of a child within nine months 
 after the marriage, this would not be a fraud within the 
 purview of the Act.^ 
 
 Conviction of Felony. 
 
 § 233. Under the Act of 8th May, 1854, S. 1 (P. L. 
 644),^ by its express terms, there must have been a convic- 
 tion of one of the parties im felony, and not a misdemeanor 
 merely ; and there must have been, also, a sentence of such 
 party by the proper court, either to the county prison of 
 the proper county, or to the penitentiary of the proper dis- 
 trict, for a term exceeding two years ; and the application 
 for a divorce must be made by the husband or wife of the 
 party so convicted and sentenced. 
 
 Where the Wife is Lunatic or Non Compos Mentis. 
 
 § 234. Where the cause of divorce is the alleged lunacy of 
 the wife, or that she is non compos mentis, the petition or libel 
 for the divorce must, by the terms of the Act of 13th April, 
 1843, S. 8 (P. L. 235),^ authorizing a divorce in these cases, 
 
 ' Hoffman v. Hoffman, 6 C. 4:i0. under the directions of this section : 
 ^ Ante, p. 199, n. 4. Provided, that the fact of the lunacy 
 ' The section provides, " That in of the wife, and such circumstances as 
 cases where the wife is lunatic, or non may be sufficient to satisfy the mind 
 compos mentis, the Courts of Common of the court as to the truth of the al- 
 Pleas of this Commonwealth are in- legation, shall be set forth in the pe- 
 vested witli authority to receive a tition ; and upon the hearing of the 
 petition or libel for divorce, which case before the court, or upon an 
 maybe exhibited by any relative or issue to be tried by the jury, the ques- 
 next friend of the wife; and the affi- tion of lunacy, with every other mat- 
 davit required by the Act concerning ter of fact that is affirmed by one 
 divorces may be made in the manner party and denied by th ■ other, shall 
 required by the Act by such relative be heard and investigated in the 
 or next friend ; and all the provisions manner prescribed by the provi- 
 of the several Acts relating to divorces sions of the several acts concerning 
 shall apply to all applications made divorces." 
 
204 THE LAW OF MARRIED WOMEN. 
 
 be exhibited on her behalf by any relative or next friend of 
 hers, and not on behalf of the husband. It is a privilege ac- 
 corded to her and not to the husband. And not only the fact 
 of her lunacy, but such circumstances as may be sufficient to 
 satisfy the mind of the Court as to the truth of the allega- 
 tion, must be set forth in the petition. The hearing then 
 takes the usual course of petitions or libels for divorce. 
 
 Absence for Ttvo Years, and on False Rumor of Death, the 
 Other Marries Again and Unmarried One Returns. 
 § 235. By the Act of 13th March, 1815, section 6^ (6 
 Sm. 288), where either husband or wife has been absent for 
 two years, and the other party, upon a false rumor, in 
 appearance well founded, of the death of the absent one, 
 marries again, and the unmarried one returns, he or she so 
 returning is entitled to a divorce from the bond of matri- 
 mony ; but the proceedings for the divorce must be insti- 
 tuted within six months after the return. And to justify 
 such second marriage, there must be a general report that 
 the party whose death is rumored died at some particular 
 place, was shipwrecked or died in some way which the 
 report specifies.^ 
 
 § 236. Power to grant divorces in cases of the marriage 
 of minors under the age of consent, and of persons of un- 
 sound mind, except in the wife's case,'' does not seem to have 
 been conferred upon any of the courts of this Common- 
 wealth ; nor the power to decree such marriages void. 
 
 ' The section is as follows: "If any her wife or husband restored, or to 
 
 husband or wife, upon any false have his or her own marriage dis- 
 
 rumor, in appearance well founded, solved, and the other party to remain 
 
 of the death of the other (when such with the second husband or wife: and 
 
 other has been absent for the space of in any suit or action instituted for 
 
 two whole years), hath married, or this purpose within six months after 
 
 shall marry again, he or she shall such return, the court may and shall 
 
 not be liable to the pains of adultery ; sentence and decree accordingly." 
 
 but it shall be in the election of the ^ Comm. ». Smith, Oyer and Ter. 
 
 party remaining unmarried, at his or Phila. Whart. Dig. p. 920, pi. 463. 
 
 her return, to insist to have his or ^ Ante, p. 203. 
 
WHO ENTITLED TO SUE FOR DIVORCE. 205 
 
 CHAPTER XXI. 
 
 WHO ENTITLED TO SUE FOR DIVORCE. 
 
 § 237. Any one wlio has had a bond fide residence in this 
 State for one year previous to filing the petition or libel is 
 entitled to institute proceedings for a divorce under the 
 Acts of Assembly of the State relating to divorces. The 
 11th section of Act of 13th March, 1815 (6 Sm. 286)/ pro- 
 vides, in addition to residence for one year, that no person 
 should be entitled who was not a citizen of the State ; but 
 the Act of 8th May, 1854, section 2 (P. L. 644), ^ provides 
 that the word citizen, used in that section, should not be 
 so construed as to exclude any party who shall for one year 
 have a bond fide residence within the State, previous to the 
 filing of the petition or libel ; and all the other Acts upon 
 the subject require that the applicant for divorce shall be a 
 citizen of the State, or have resided therein for the term of 
 one year.^ 
 
 ^ This section is as follows: "No (ISth March, 1815), " shall not be so 
 
 person shall be entitled to a divorce construed as to exclude any party 
 
 from the bond of matrimony, by vir- who shall, for one year, have had a 
 
 tue of this Act, who is not a citizen of hondjide residence within this Com- 
 
 this State, and who shall have resided monwealth, previous to the filing of 
 
 therein at least one whole year pre- his or her petition or libel." 
 
 vious to the filing of his or her peti- ' See Act of 26th April, 1850, | 6, 
 
 tion or libel." P. L. 591 ; Act of 9th March, 1855, 1 1, 
 
 ' That portion of the section pro- P. L. 68, and 22d April, 1858, § 1, P. 
 
 vides that " The word citizen, used L. 450. 
 in the 11th section of the said Act" 
 
206 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XXII. 
 
 JURISDICTION IN DIVORCE. 
 
 § 238. The English rule as to jurisdiction in divorce would 
 seem to he that the dissolution of an English marriage, for 
 any cause whatever, can be effected so as to be acknowledged 
 in that country, only by English authority; and they acknowl- 
 edge no jurisdiction which is not founded on the law of divorce 
 at the place of the marriage, if it be an English one.^ But 
 this is not the law in Pennsylvania, nor in this country gen- 
 erally.^ And, according to Chief Justice Gibson, in Dorsey 
 V. Dorsey, the reason for the difference in the rules of 
 the two countries is, that in England they hold to the tenet 
 of perpetual allegiance, while in this country we reject 
 it. Here the doctrine of lex loci contractus, as affecting the 
 jurisdiction in matters of divorce, is entirely repudiated.* 
 It matters not what might be the law as to divorce, in the 
 State or country where the marriage took place, if the 
 cause of divorce was one recognized by our laws, and the 
 party was otherwise entitled, our courts would entertain 
 jurisdiction. In this State the rule as to jurisdiction in 
 divorce, except so far as the law has been altered by Acts 
 of Assembly, to be hereinafter noticed, would seem to be 
 that jurisdiction belongs exclusively to the courts of the 
 State or country where the parties are domiciled at the time 
 the cause of divorce occurs, without regard to the locus 
 delicti, or place where the cause occurred. This seems to be 
 the rule as laid down in Dorsey v. Dorsey, by Gibson, C. 
 J., and followed in McDermott's Appeal,'' by the same 
 learned judge.* But 'the law has been changed in this 
 
 ' Dorsey v. Dorsey, 7 Watts 350. " Nevertheless, in Colvin u. Reed, 5 
 
 '' Dorsey «. Dorsey, supra; Colvin P. F. S. 380, the Court, per Agnew, J., 
 
 V. Reed, 5 P. F. S. 380. alluding to the opinion in the case of 
 
 " Colvin V. Reed, supra; Dorsey v. Dorsey v. Dorsey, delivered by Chief 
 
 Dorsey, supra. Justice Gibson, says, "On one point 
 
 * 8 W. & S. 256. the opinion of this eminent jurist has 
 
JURISDICTION IN DIVORCE. 
 
 207 
 
 respect by several Acts of Assembly. Thus by the Act of 
 26th April, 1850, section 6 (P. L. 591), ^ in the cases of 
 
 1 This Act provides " That it shall 
 be lawful for the said several courts 
 to entertain jurisdiction of all oases 
 of divorce from the bonds of matri- 
 mony, for the causes of desertion 
 as aforesaid, or adultery, notwith- 
 standing the parties were at the time 
 
 of the occurrences of said causes do- 
 miciled in any other State : Provided, 
 that no such divorce shall be granted 
 unless the applicant therefor shall be a 
 citizen of this Commonwealth, or shall 
 have resided therein for the term of 
 one year, as provided by existing laws." 
 
 been much doubted, to wit, the locus 
 delicti, which he asserts is also essen- 
 tial to the jurisdiction. ... In 
 MoDermott's Appeal, 8 W. & S. 256, 
 the Chief Justice maintained the same 
 opinion as to the locus delicti, setting 
 out with the declaration that there is 
 no question that the courts have no 
 jurisdiction of marital duties abroad. 
 And this lead seems to have been 
 followed in Hollister v. Hollister, 6 
 Barr 451, and Bishop v. Bishop, 
 6 C. 412. In the former case, 
 Coulter, J., delivering the opinion of 
 the Court, says : ' If the acts of 
 violence complained of had been com- 
 mitted in the State of Ohio, the 
 Pennsylvania courts would not have 
 had jurisdiction,' citing Dorsey v. 
 Dorsey. And in the latter case, the 
 Court, per Thompson, J., alluding to 
 divorce for wilful and malicious de- 
 sertion, says, ' Our courts entertained 
 no jurisdiction for such causes oc- 
 curring in other States of the Union 
 before the passage of the statute,' 
 also citing Dorsey v. Dorsey ; and 
 the learned Judge further says that 
 it was decided in McDermott's Ap- 
 peal, 8 W. & S. 251, that for causes 
 occurring in a foreign country, this 
 Court had no jurisdiction. With 
 great respect, this seems to be a mis- 
 conception of the law as laid down in 
 those cases. In Dorsey v. Dorsey, 
 
 the parties resided and were married 
 in Pennsylvania, and after their mar- 
 riage removed to the State of Ohio, 
 where they became domiciled ; sub- 
 sequently the husband deserted his 
 wife, and she returned to Pennsyl- 
 vania, where she resided for several 
 years, and then instituted proceed- 
 ings for divorce in this State on the 
 ground of the desertion. It was held 
 by the Court that the courts of this 
 State had no jurisdiction of the case, 
 because the domicil of the parties at 
 the time the cause of divorce oc- 
 curred was the State of Ohio, and 
 that the libellant's case, therefore, 
 appertained to the authorities of that 
 State. The language of the Court, 
 after a discussion of the principles 
 upon which the English and Scotch 
 and those of our own country in refer- 
 ence to j urisdiction rest, is this : ' It fol- 
 lows, on our own principle, however, 
 that not only does j urisdiction belong to 
 the courts of the place of the domicil, 
 but that the retribution must be meted 
 by their measure. The appellant's case, 
 therefore, appertains to the authori- 
 ties in Ohio. The forum is there, 
 and the law which declares the 
 offence is there. The locus delicti 
 may not be there, but the injury was 
 suffered there.' That is the deser- 
 tion, which under the Act of Assem- 
 bly must be a wilful and malicious 
 
208 
 
 THE LAW OF MARRIED WOMEN. 
 
 desertion and adultery, and by the Act of 9th March, 
 1855, section 1 (P. L. 78),^ for the cause of personal abuse, 
 
 • This Act enacts " That it shall 
 be lawful for the several Courts of 
 Common Pleas of this Commonwealth 
 to entertain jurisdiction of all cases 
 of divorce from the bonds of matri- 
 mony for the cause of personal abuse, 
 or for such' conduct on the part of 
 either husband or wife as to render 
 the condition of the other party in- 
 tolerable and life burdensome, not- 
 
 withstanding the parties were at the 
 time of the occurring of said causes 
 domiciled in another State : Provided, 
 that no application for such divorce 
 shall be made unless the applicant 
 therefor shall be a citizen of this 
 Commonwealth, or shall have resided 
 therein for the term of one year, as 
 provided for by the existing laws of 
 this Commonwealth." 
 
 desertion and absence from the habi- 
 tation of the other, without reason- 
 able cause, for two years, may have 
 been committed by the husband's 
 going to and remaining in another 
 State or country during that time, 
 which other State or country would 
 then have been the locus delicti. He 
 committed the offence ; the design 
 and malice were his, and the place 
 where he remained during the two 
 years was the locus delicti; while the 
 injury from the desertion was suffered 
 by the wife in Ohio, whose domicil 
 was there at the time. Here, then, 
 is the distinct position taken by Chief 
 Justice Gibson in this case, that the 
 courts of the place of the domicil have 
 jurisdiction though the locus delicti 
 ' may not be there.' In the face of 
 this it cannot be supposed that the 
 Chief Justice intended to hold that 
 while the courts of the place of the do- 
 micil would alone h avej urisdiction , the 
 locus delicti must also have been that 
 place, which would lead to the con- 
 sequences that, let parties be domi- 
 ciled where they would, they had but 
 to commit the offence, as for example, 
 adultery, elsewhere, and this would 
 be no cause of divorce. The courts 
 of the place of the domicil would not 
 
 have jurisdiction, because the locus 
 delicti was elsewhere, and the courts 
 of the locus delicti would not have 
 jurisdiction because it belongs only 
 to those of the place of the domicil. 
 It is true the Chief Justice, at the 
 close of the opinion, says, ' On gene- 
 ral principles of law applicable to our 
 condition, and in conformity to the 
 spirit of our statute, the sum of the 
 matter seems to be that the law of 
 the domicil at the time and place of 
 the injury is the rule for everything 
 but the original obligation of the 
 marriage.' But looking at this as a 
 general proposition, the words ^and 
 place^ would seem to have been used 
 inconsiderately and without definite 
 meaning, inasmuch as to suppose that 
 by this language the Chief Justice 
 intended to hold that the place of the 
 domicil and that of the injury must 
 be the same to give jurisdiction, is to 
 suppose that he intended to hold 
 directly the reverse of what he had 
 just expressly stated as the law. He 
 certainly does not so hold in direct 
 terms, and it is rather to be inferred 
 from what preceded that he only in- 
 tended to say that where the place of 
 the domicil and that of the injury 
 were the same, the law of that place 
 
JURISDICTION IN DIVORCE. 
 
 209 
 
 or for such conduct on the part of either husband or wife 
 as to render the condition of the other party intolerable and 
 life burdensome, the several Courts of Common Pleas shall 
 have jurisdiction of all cases of divorce from the bonds of 
 matrimony, notwithstanding the parties were, at the time 
 of the occurrence of such causes, domiciled in any other 
 State ; and by a supplement to this Act passed 22d April, 
 1858, section 1 (P. L. 450),^ the same jurisdiction is ex- 
 
 wpuld be the rule ; not that both these 
 must unite to confer the rule. In 
 MoDermott's Appeal, the parties were 
 domiciled in Ireland, and the hus- 
 band, deserting his wife, came here, 
 where she followed him, and he re- 
 fusing to receive her, she applied for 
 a divorce a mensa et tJioro, and the 
 court in a very brief opinion affirmed 
 the decision of the court below decree- 
 ing alimony, on the ground that the 
 husband's refusing to receive her 
 here was a virtual turning her out of 
 doors, and it was proper that he and 
 not the community here should bear 
 the burthen of her support ; and the 
 Chief Justice says that if the court 
 were required to decree alimony for 
 desertion before the parties uere domi- 
 ciled in the State, it must have been 
 refused ; and as stated in Colvin v. 
 Eeed, he also says ' that there is no 
 question that the courts here have no 
 jurisdiction of marital duties abroad,' 
 viz., the marital duties abroad spring- 
 ing out of a domieil abroad. And 
 this agrees perfectly with the rule as 
 stated in Dorsey v. Dorsey. Neither 
 turns upon the locus delicti, but upon 
 the domieil of the parties at the time. 
 So our Acts of Assembly, to which 
 reference has been made, are founded 
 upon the same theory of the law, they 
 giving jurisdiction to our courts for 
 the causes of divorce specified in 
 14 
 
 them, notwithstanding the parties 
 were ' at the time of the occurrence of 
 said causes domiciled in any other 
 State: And the Act of 27th Tebruary, 
 1847, ? 1 (P. L. 169), provides that'a 
 certain class of divorces which had 
 been decreed by our courts for adul- 
 tery committed in this State, by par- 
 ties who were at the time residents of 
 another State, should under certain 
 conditions be deemed good and valid. 
 The section is as follows : ' In all 
 cases where divorces have been de- 
 creed by the courts of this Common- 
 wealth having jurisdiction, for the 
 offence of adultery, and no appeal has 
 been taken therefrom within the time 
 prescribed by law, such divorces so 
 decreed shall be deemed good and 
 valid, if the offence shall have been 
 committed within this Common- 
 wealth, and the libellants have re- 
 sided therein one year or more pre- 
 vious to the application therefor, al- 
 though at the time of the commis- 
 sion of such offence the libellants and 
 respondents may have been residents 
 of another State : Provided, that in 
 cases where the respondents resided 
 out of this Commonwealth at the time 
 of the preferment of the libels, per- 
 sonal notice shall have been given to 
 them.' " 
 
 ' By this supplement it is provided 
 " That the jurisdiction conferred in 
 
210 THE LAW OP MARRIED WOMEN. 
 
 tended to all cases of divorce where either of the parties 
 were, at the time of cause therein mentioned, domiciled in 
 another State or country. 
 
 § 239. If the parties be domiciled in this State at the 
 time the cause of divorce occurs, and afterwards the injured 
 party seeks a domicil in another State, the other remaining 
 here, the courts of the other State have no jurisdiction to 
 decree a divorce so as to affect the rights in this State of 
 the party remaining here.^ In the absence of a common 
 domicil, it has been a question whether, if it be the husband 
 who seeks the new domicil, he would not, by reason of the 
 legal unity which exists between the wife and himself, make 
 his domicil hers, and thus draw the jurisdiction after him 
 into the court of the new domicil.^ But this is now held 
 otherwise. " The unity of person created by the marriage," 
 says Agnew, J.,^ " is a legal fiction, to be followed for all 
 useful and just purposes, and not to be used to destroy the 
 rights of either, contrary to the principles of natural justice, 
 in proceedings which from their nature make them opposite 
 parties. ... In a proceeding to dissolve a marriage, the 
 parties stand upon a level of rights. When the injured 
 party seeks a new domicil, and the domicils are therefore 
 actually different, there is no greater reason why the hus- 
 band's new domicil should prevail over the wife's than that 
 hers should prevail over his. In this aspect, justice requires 
 that neither should draw the other within the folds of a 
 
 and Jay the said Act to which this is therefor shall be a citizen of this 
 
 a supplement is hereby extended to Commonwealth, or shall have resided 
 
 all cases of divorce from the bonds of therein for the term of one year, as 
 
 matrimony, for the causes therein provided by existing laws." 
 
 mentioned, where either of the par- ' Colvin v. Reed, 5 P. F. S. 375. 
 
 ties were or may be at the time of the ^ See Dorsey v. Dorsey, 7 Watts 
 
 occurring of said cause domiciled in 350. 
 
 another State or country: Provided, ' Colvin v. Reed, supra. See also 
 
 that no application for such divorce Bishop v. Bishop, 6 C. 416. 
 shall be made unless the applicant 
 
JURISDICTION IN DIVORCE. 211 
 
 foreign jurisdiction. . . . The eases ■which have furnished 
 the grounds of seemingly opposite conclusions, and the 
 arguments of writers upon this vexed question, have gene- 
 rally been those in which the offending party left the com- 
 mon domicil, and put it out of the power of the injured 
 party to proceed, except at the place of the common 
 domicil." It makes no difference that notice of the 
 pendency of the proceedings for divorce was given to or 
 process duly served upon the offending party .^ In the lan- 
 guage of the Court in Colvin v. Reed, " back of it lies the 
 want of power of the distant State to subject" such party 
 "to its jurisdiction." And "clearly," say the Court, in 
 Reel V. Elder, after adopting the language just quoted, 
 " when it is once determined that a court has no jurisdic- 
 tion, notice, or even process duly served, cannot give vitality 
 to the judgment it may pronounce. It is null and void, at 
 least as to any extra-territorial effect." The injured party 
 must seek redress in the forum of the defendant, unless 
 where such defendant has removed from what was before 
 the common domicil of both.^ Where, therefore, the hus- 
 band obtains a divorce in the forum of the new domicil, 
 under these circumstances, it of course follows that such 
 divorce would in no manner affect the rights of the wife 
 here, and should he afterwards conA^ey lands in this State, 
 without the wife joining in the conveyance, she would not 
 be deprived of her dower in the land by the divorce.^ A 
 divorce granted in another State is nugatory and void so far 
 as it affects the rights of the parties in the State of Penn- 
 sylvania, where the cause of divorce did not arise in that 
 other State, the parties did not reside there, and the de- 
 fendant was neither served with process nor appeared.* If 
 
 ' Colvin V. Reed, 5 P. F. S. 375 ; Reel ' Reel v. Elder, supra. 
 V. Elder, 12 P. F. S. 315. * Piatt's Appeal, 33 Leg. Int. 348 ; 
 
 " Colvin V. Reed, supra; Reel v. s. c, 2 Weekly Notes 501 ; 30 P. P. 
 
 Elder, supra; Dorsey v. Dorsey, 7 S. 501. 
 Watts 350. 
 
212 THE LAW OF MARRIED WOMEN. 
 
 the parties are domiciled here at the time the cause of 
 divorce occurs, and the offending party afterwards seeks a 
 domicil in another State or country, the other remaining 
 here, the courts of this State would seem to retain jurisdic- 
 tion of proceedings for a divorce, on the principle that juris- 
 diction once vested is not lost by such departure of the 
 offending party .^ 
 
 § 240. By the Act of 26th April, 1850, section 5 (P. L. 
 591), it is enacted " That the jurisdiction of the several 
 Courts of Common Pleas of this Commonwealth shall here- 
 after extend to all cases of divorce from the bonds of matri- 
 mony for the cause of wilful, malicious, and continued deser- 
 tion by either of the parties from the habitation of the 
 other, without reasonable cause ; and it shall be lawful for 
 either party to make application in such case, by petition or 
 libel, to the proper court, in accordance with the provisions 
 of the several Acts of Assembly now in force, at any time 
 not less than six months after such cause of divorce shall 
 have taken place ; but the said court shall not proceed to 
 make a final decree divorcing the said parties from the 
 bonds of matrimony aforesaid until after the expii-ation of 
 two years from the time at which such desertion took 
 place." And by section 6 it is enacted " That it shall be 
 lawful for the said several courts to entertain jurisdiction 
 of all cases of divorce from the bonds of matrimony for the 
 causes of desertion as aforesaid, or adultery, notwithstand- 
 ing the parties were, at the time of the occurrence of said 
 causes, domiciled in any other State : Provided, that no 
 such divorce shall be granted unless the applicant therefor 
 shall be a citizen of this Commonwealth, or shall have re- 
 sided therein for the term of one year, as provided for by 
 existing la,ws." This Act was held^ to apply to causes of 
 diA^orce occurring in one of the States of this country, and 
 
 1 Dorsey v. Dorsey, 7 Watts 352 ; '^ Bishop v. Bishop, 6 C. 416. 
 Colvin V. Reed, 5 P. F. S. 381. 
 
JURISDICTION IN DIVORCE. 213 
 
 not in a foreign country, the words " any other State" re- 
 ferring only to the States of the Union. The same construc- 
 tion would of course apply to the Act of 9th March, 1855, 
 section 1 (P. L. 68), which provides that "It shall be law- 
 ful for the several Courts of Common Pleas in this Com- 
 monwealth to entertain jurisdiction of all cases of divorce 
 from the bonds of matrimony for the cause of personal 
 abuse, or for such conduct on the part of either the husband 
 or wife as to render the condition of the other party intoler- 
 able and life burdensome, notwithstanding the parties were 
 at the time of the occurring of said causes domiciled in 
 another State : Provided, that no application for such 
 divorce shall be made unless the applicant therefor shall be 
 a citizen of this Commonwealth, or shall have resided therein 
 for the term of one year, as provided for by existing laws of 
 this Commonwealth." But by a supplement to this Act, pass- 
 ed 22d April, 1858 (P. L. 450), as we have seen,^itis enacted 
 " That the jurisdiction conferred in and by the said Act to 
 which this is a supplement is hereby extended to all cases 
 of divorce from the bonds of matrimony for the causes 
 therein mentioned, where either of the parties were, or may 
 be, at the time of the occurring of said cause, domiciled in 
 another State or coimiry : Provided, that no application for 
 such divorce shall be made unless the applicant therefor 
 shall be a citizen of this Commonwealth, or shall have re- 
 sided therein for the term of one year, as provided by the 
 existing laws of this Commonwealth." So that now, for 
 wilful, malicious, and continued desertion by either of the 
 parties from the habitation of the other, without reasonable 
 cause, or for adultery, committed when the parties were 
 domiciled in another State of the Union, or for personal 
 abuse, or such conduct on the part of either husband or wife 
 as to render the condition of the other party intolerable and 
 life burdensome, occurring when they were domiciled in 
 
 1 Ante, p. 209, n. 1. 
 
214 THE LAW OF MARRIED WOMEN. 
 
 another State or country, the courts of this State have 
 jurisdiction of libels for divorce. 
 
 § 241. Jurisdiction in divorce belongs exclusively to the 
 Courts of Common Pleas of the respective counties.-^ But 
 after verdict in a Court of Common Pleas of any county, it 
 cannot be objected that the suit for divorce was not brought 
 in the proper county, if tried by a jury of the county where 
 the action is laid. The only modes of objecting to the venue 
 in such case are by demurrer, or, at the trial, as ground of 
 non-suit.^ But the objection that the suit is not brought in 
 the proper county, made by the husband to a libel filed by 
 his wife, touches his privileges and personal convenience, 
 rather than the jurisdiction of the court; as the courts of 
 the respective counties have jurisdiction over the subject- 
 matter of divorce, and these privileges and this personal 
 convenience, he may waive, and submit himself to the juris- 
 diction of the court.^ 
 
 ' Light V. Light, 17 S. & R. 273. => Nagie «,. Nagle, supra. 
 
 • 2 See Nagle v. Nagle, 3 Gr. 156. 
 
EVIDENCE IN DIVORCE. 215 
 
 CHAPTER XXIII. 
 
 EVIDENCE IN DIVORCE. 
 
 § 242. By the Act of March 4, 1870, section 1 (P. L. 36), 
 the testimony of either husband or wife is allowed " to be 
 given in his or her own behalf, in any proceeding for a 
 divorce, in every case where personal service of the subpoena 
 is made on the opposite party, or said party appears and 
 defends." Under this Act, while the parties are allowed to 
 testify in their own behalf, yet where their testimony is 
 uncorroborated, and they contradict each other as to the 
 facts testified to in support of the divorce, or where the tes- 
 timony of the libellant is contradicted in material points by 
 others, a divorce will not be granted.^ It seems, moreover, 
 that in a case coming before the court upon an examiner's 
 report, a divorce would not be granted upon the uncontra- 
 dicted, but uncorroborated, testimony of the parties, or of 
 the libellant alone.^ No admissions of the respondent will 
 avail the libellant,^ nor can they be compelled to testify 
 against themselves.* " He or she," say the court, in Win- 
 ter V. Winter,^ " must make out his or her case by inde- 
 pendent evidence. This rule is formed upon the highest 
 considerations of public policy, and cannot be relaxed with- 
 out opening the door to all manner of collusion and fraud. 
 To grant a divorce solely upon the testimony of parties to 
 the suit, or of the libellant alone, would sweep away at once 
 all the safeguards which the law has hitherto thrown around 
 proceedings of this nature," and there can be no decree pro 
 confesso in a libel for divorce.* But, whether the evidence 
 
 ' Winter v. Winter, 7 Phila. 369 ; * Bronson v. Bronson, 28 Leg. Int. 
 
 Stevenson v. Stevenson, Ibid. 386. 180, Com. Pleas, Phila. ; 8 Phila. 261. 
 
 ' Winter v. Winter, supra. ° Supra. 
 
 ' Ibid. ; Wood v. Wood, 2 Brewst, * Kilborn v. Field, 1 Weekly Notes 
 
 447. 556. 
 
216 THE LAW OF MARRIED WOMEN. 
 
 of the libellant, uncontradicted, but uncorroborated, would 
 be sufficient to entitle the cause to go to the jury, in case 
 of an issue, is a question the court say they were not called 
 upon, in that case, to decide. Where, however, the confes- 
 sion is full, confidential, reluctant, free from suspicion of 
 collusion, and corroborated by circumstances, it is ranked 
 with the safest proofs.^ The confession of the accomplice 
 of the wife charged with adultery, which had not been com- 
 municated to her, and confirmed by her, would not be evi- 
 dence to affect her.^ 
 
 § 243. The libellant cannot buy the silence or default of 
 the respondent, any more than a defendant in a criminal 
 prosecution can buy off the prosecutor, and compound a 
 felony; and a promissory note given by the libellant, in 
 consideration that the respondent should not appear and 
 oppose the divorce, is void.' 
 
 ' § 244. To justify a divorce in any case, the evidence of 
 the wrong, which the law treats as the justifying cause, 
 should be clear and satisfactory ; opinions and conclusions 
 of the witnesses will not suffice ; the acts which constitute 
 the wrong must be shown.* But threats that are both 
 serious and diabolical in their nature are, in themselves, 
 acts. They are not like mere words of reproach or anger, 
 or false imputations, but impress the mind with fear, and 
 tend directly to endanger health, and may even peril life." 
 
 1 Matohen v. Matchen, 6 Barr 337. * Edmond's Appeal, 7 P. F. S. 
 
 ' Ibid. 234. 
 
 3 Kilborn v. Field, 1 Weekly Notes « Jones v. Jones, 16 P. F. S. 497. 
 556 : 28 P. F. S. 194. 
 
PROCEEDINGS TO OBTAIN A DIVORCE. 217 
 
 CHAPTER XXIV. 
 
 PROCEEDINGS TO OBTAIN A DIVORCE. 
 
 The Suit. 
 
 § 245. It is provided by the Act of 13th March, 1815, 
 section 2 (6 Sm. 287), " That if any person hath been or 
 shall be injured as aforesaid," viz., as provided in the first 
 section,^ "the husband in his own proper person, or the wife 
 by her next friend, may exhibit his or her petition or libel to 
 the judges of the Court of Common Pleas of the proper county 
 where the injured party resides, in term time, or to one of 
 the judges of the same court in the vacation, at least thirty 
 days before the next term, setting forth therein particularly 
 and specially the cause of his or her complaint, and shall, 
 together with such petition or libel, also exhibit an afiidavit 
 on oath or affirmation, taken before one of the same judges or 
 a justice of the peace of the proper county, that the facts 
 contained in said petition or libel are true, to the best of his 
 or her knowledge and belief, and that the said complaint is not 
 made out of levity or by collusion between the. said husband 
 and wife, and for the mere purpose of being freed and sep- 
 arated from each other, but in sincerity and truth for the 
 causes mentioned in the said petition or libel; and thereupon a 
 subpoena shall issue from the said court, signed by one of the 
 judges thereof, directed to the party so complained against, 
 commanding him or her to appear at the next or any subse- 
 quent Court of Common Pleas to answer the said petition 
 • or libel, and upon due proof, at the return of the said sub- 
 poena, that the same shall have been served personally on 
 the said party, wherever found, or that a copy had been 
 given to him or her fifteen days before the return of the 
 
 ' See the section ante, p. 185, n. 1. 
 
218 THE LAW OP MARRIED WOMEN. 
 
 same, the said court shall and may make such preparatory 
 rules and orders in the cause that the same may be brought 
 to a hearing, and determined at the term to which the said 
 process may be returnable, or afterwards, at which hearing 
 the court may determine the same ex •parte if necessary ; 
 but if either of the parties shall desire any matter of fact, 
 that is affirmed by the one and denied by the other, to 
 be tried by a jury, an issue shall be formed, and the same 
 shall be tried accordingly ; but when neither of the parties 
 require an issue to be so formed, the court may inquire and 
 decide upon the case in the presence of the parties, or if 
 either of them will not attend, then ex parte by the examin- 
 ation of witnesses on interrogatories, exhibits or other legal 
 proof, had either before or at the hearing." 
 
 § 246. By section od of the same Act it is provided 
 " That if, upon return of the said subpoena, proof shall be 
 made that the said party could not be found in the said 
 county, an alias subpoena shall issue, returnable the first 
 day of the next or any subsequent term, and be served per- 
 sonally in manner aforesaid, and if so served the same pro- 
 ceedings shall be had as are directed and authorized in the 
 second sectiou of this Act ; and if on the return of the said 
 alias subpoena, proof shall be made that the said party 
 could not be found in the said county, the sheriff of the 
 same shall cause notice to be published in one or more 
 newspapers printed within or nearest to the said county for 
 four weeks successively, prior to the first day of the then 
 next term of said court, requiring the said party to appear 
 on the said day, to answer to the said complaint ; at which 
 term, or any subsequent term, the same proceedings shall 
 be had as are authorized and directed by the second section 
 of this Act." 
 
 § 247. Section 8th enacts " That it shall and may be 
 
PROCEEDINGS TO OBTAIN A DIVORCE. 219 
 
 lawful for the said court, after hearing any cause com- 
 menced before them by virtue of this Act, to determine 
 the same as to law and justice shall appertain, by either 
 dismissing the petition or libel, or sentencing and decreeing 
 a divorce and separation from the nuptial ties or bonds of 
 matrimony, or that the marriage is null and void, and that 
 after such sentence, nullifying or dissolving the marriage, 
 all and every the duties, rights and claims accruing to either 
 of the said parties at any time theretofore, in pursuance 
 of the said marriage, shall cease and determine ; and the 
 said parties shall severally be at liberty to marry again in 
 the like manner as if they never had been married." 
 
 § 248. Section 12th provides " That the said court may 
 award costs to the party in whose behalf the sentence or 
 decrees shall pass, or that each party shall pay his or her 
 own costs, as to them shall appear reasonable and just." 
 
 § 249. By section 13th it is enacted " That either of the 
 parties, in any suit or action now depending, or that shall 
 hereafter be brought under this Act, after the final sentence 
 or decree given, may appeal therefrom to the Supreme 
 Court of the proper district, upon entering into a recogniz- 
 ance before one of the judges of the Court of Common Pleas 
 before whom the cause shall have been tried, with at least 
 one good surety, in a sum double the amount of the costs 
 incurred, conditioned to prosecute the said appeal with 
 effect, and the same appeal shall be prosecuted in the usual 
 manner ; and the judges of the Supreme Court shall trans- 
 mit the record, with their judgment thereon, with all the 
 proceedings, as in other cases, to the court below, to be 
 carried into effect." But by the Act of 8th February, 1819, 
 section 1 (7 Sm. 151), it is provided " That no appeal 
 shall lie from the final sentence or decree of the Court of 
 Common Pleas, or other court having competent jurisdiction 
 
220 THE LAW OF MARRIED WOMEN. 
 
 in cases of divorce, after the expiration of one year from 
 the time of pronouncing the final sentence or decree." 
 
 The Proper Court. 
 § 250. The libel or petition is to be filed in the Court of 
 Common Pleas of the proper county, which court alone has 
 jurisdiction for any of the causes enumerated in the Acts 
 of Assembly concerning divorces.'^ For marriages of minors 
 under the age of consent, and of persons of unsound mind, 
 no power is conferred upon the courts of this Common- 
 wealth to grant a divorce (except where the wife is lunatic 
 or non compos mentis),^ or to declare such marriages void. 
 At common law, these marriages are void ah initio, and 
 the union meretricious ;^ and as the new constitution pro- 
 hibits the Legislature from passing any special law granting 
 divorces,* there would seem to be no remedy j)rovided to 
 meet these cases, unless to be found in the equity powers 
 of the courts. " The proper tribunal for the investigation 
 of this question, when it is brought up directly, and for the 
 mere purpose of testing the validity of the contract," says 
 Chancellor Kent, " will depend upon the local institutions 
 of every State. In those States which have equity tribunals, 
 it belongs to them ; and where there are no such tribunals 
 distinct from the supreme courts of common law jurisdiction, 
 for the exercise of equity powers, whatever jurisdiction is 
 exercised over the matrimonial contract must be in the 
 common law courts."® But the equity jurisdiction conferred 
 upon the Supreme Court and the several Courts of Common 
 Pleas of this State is limited, and the power to declare such 
 marriages void, in a suit instituted for the purpose of annul- 
 ling the marriage, is nowhere expressly granted to those 
 courts, nor would it seem to come within any of the powers 
 conferred, unless it could be brought within the jurisdiction 
 
 J Light V. Light, 17 S. & R. 723. •• Article III., ? 7. 
 
 2 See ante, p. 203. ^ 2 Kent's Com. 76. 
 
 3 Walter's Appeal, 20 P. F. S. 393. 
 
PROCEEDINGS TO OBTAIN A DIVORCE. 221 
 
 given them in cases of fraud ; or, as to persons of unsound 
 mind, that of the care of the persons and estates of those 
 who are non compos mentis. 
 
 The Petition or Libel. — Causes of Complaint. 
 
 § 251. It is sufficient to set forth in the libel, specially, 
 the causes of complaint, without a specification of times and 
 places wherein the cause arose.^ Thus, where the libel 
 charged, as to the respondent, " that he had not only refused 
 to cohabit with hei", but had offered such indignities to her 
 person as to render her condition intolerable and life bur- 
 densome, and by cruel and barbarous treatment endangered 
 her life, and thereby forced her to withdraw from his house 
 and family," without stating particular acts done and words 
 spoken ; and the respondent went to trial without demand- 
 ing notice of specific acts and words, the statement of the 
 cause of complaint in the libel would be sufficient.^ So, 
 where the libel set forth " that for a considerable time past 
 the defendant had given himself up to adulterous practices, 
 and had been guilty of adultery with a certain female, called 
 
 J McK , and divers other persons, to the petitioner 
 
 unknown," &c., without specification of times and places 
 wherein the acts were committed, and no notice of specific 
 acts as to times and places were demanded by the respond- 
 ent, the libel, in this respect, would be sustained f and in a 
 divorce, for adultery, it is not indispensably necessary to 
 name the particeps criminis.^ But where a libel, filed under 
 the Act of May 8, 1854, charged that the respondent "wil- 
 fully and maliciously obtained the said marriage (with the 
 libellant) fraudulently, and with force and coercion; and 
 that, in order to obtain the said marriage, the said A 
 
 1 Light V. Light, 17 S. & K. 276 ; ' Breinig v. Breinig, 2 0. 161. 
 
 Hancock's Appeal, 14 P. F. S. 473. ' Hancock's Appeal, supra. 
 
 See Edwards v. Edwards, 29 Leg. Int. " Garrat v. Garrat, 4 Y. 250. 
 117. 
 
222 THE LAW OF MARRIED WOMEN. 
 
 wilfully and knowingly made false representations to your 
 libellant and his friends, which said false representations, 
 your libellant not knowing them to be false, induced the 
 said libellant to enter into the bonds of matrimony with the 
 respondent ;" the causes of complaint are not set forth with 
 sufficient particularity, and the libel was held to be fatally 
 defective in this particular, though notice of particular acts 
 does not seem to have been demanded by the respondent.^ 
 The cause of complaint must be set forth in the libel, so as 
 to show a sufficient cause for the divorce asked for within 
 the Act of Assembly under which the libel is filed; as, for 
 example, in a libel for divorce, for the cause of desertion, it 
 is not sufficient to allege that the respondent " deserted" 
 the libellant, without also alleging that the desertion was 
 wilful and malicious ; and the libel cannot be amended, in 
 this respect, after the examiner's report has been filed.^ 
 The safe course is to set forth the entire cause of complaint 
 in the very language of the Act of Assembly. 
 
 § 252. If notice of the specific acts, times and places, or, 
 in other words, a particular statement of the libellant's 
 causes of complaint, be required by the respondent, under 
 the general allegations of the libel, he is entitled to it, and 
 may obtain it by rule or order of court.^ But if he goes to 
 trial without demanding it, he will be presumed to have 
 waived the notice, and the libellant may give evidence of 
 specific acts, under the general allegations of the libel. Yet 
 if the respondent is really surprised at the trial, from a want 
 of notice, an affidavit to that effect will entitle him to a con- 
 tinuance.* If the libellant, in answer to notice, furnishes 
 
 ' Hoffman v. Hoffman, 6 0. 419. * In Light v. Light it was held that 
 
 ' Pierie v. Pierie, 7 Phila. 405. the libellant having neglected to give 
 
 ' Hancock's Appeal, 14 P. F. S. thenot\ce,upontJierequisitionofthere- 
 
 473; Breinig v. Breinig, 2 C. 164; spowdeni, could neither give evidence 
 
 Light V. Light, 17 S. & R. 276 ; Wal- of the particular facts he intended to 
 
 dron V. Waldron, 5 P. P. S. 234. prove under the general allegations 
 
PROCEEDINGS TO OBTAIN A DIVORCE. 223 
 
 the respondent with a statement of the particular offences 
 relied upon, he ought not to he permitted to prove offences 
 not specified.^ 
 
 § 253. The same rule applies to the answer. Thus, when 
 to a libel by the husband on the ground of desertion, the 
 respondent in her answer denies the wilful and malicious 
 desertion, and assigns as the cause of her leaving the libel- 
 lant his violent temper, intemperate habits, and repeated 
 indignities to her person, which had embittered her life, and 
 especially that, on a day named, he assaulted her with a 
 knife in his hand, hurt her, and drove her off, and was 
 guilty of other cruel and barbarous treatment of such enor- 
 mity as to make her condition intolerable and life burden- 
 some, and thereby forced her to withdraw from his house ; 
 as to the general charges of barbarous treatment contained 
 in the answer, the libellant would be entitled to demand 
 specifications of time, place and circumstances, before join- 
 ing issue ; but he would waive this right by filing a general 
 replication, denying the truth of the matters and things in 
 
 of the libel, nor amend the libel by with E. P. and other lewd persons, to 
 
 stating the particular facts therein, the libellant unknown, if their names 
 
 The rule is laid down diiferently in are afterwards known, written notice 
 
 the other cases. In Steel v. Steel of them, and of times and places, 
 
 (1 Dall. 409) the Court say that notice should be given to the respondent, a 
 
 ought to be given of the facts in- reasonable time before trial, say the 
 
 tended to be proved under the gene- Court, without requisition. If their 
 
 ral allegations of the libel. In Garrat names are really unknown, the times, 
 
 V. Gai'rat, 4 Y. 250, it is held that places and attendant circumstances 
 
 notice of the times and places should should be contained in the specifica- 
 
 be given the respondent a reasonable tion, so as to give the party charged 
 
 time before the trial " without requi- a fair opportunity of defence against 
 
 sition.'" And failing in this, the the accusation, and failing therein, 
 
 libellant should be precluded from the libellant should be precluded 
 
 giving particular instances in evidence from giving particular instances in 
 
 on the trial, on a general charge, evidence on the trial ; and see Ewing 
 
 Thus, where in a libel for divorce v. Bwing, 2 Phila. 371. 
 
 on the ground of adultery, the adul- ' Realf w. Eealf, 1 Weekly Notes 67 ; 
 
 tery is stated to have been committed 27 P^ F. S. 31. 
 
224 THE LAW OF MARRIED WOMEN. 
 
 the respondent's plea alleged, and on this issue demanding 
 a jury.i 
 
 § 254. The libel must contain a positive averment of 
 the fact of marriage, or it is bad on demurrer.^ So the libel 
 must be sworn or affirmed to in the language of the Act of 
 Assembly, viz., " that the facts contained in said petition or 
 libel are true, to the best of" the libellant's "knowledge 
 and belief, and that the said complaint is not made out of 
 levity, or by collusion between the said husband and wife, 
 and for the mere purpose of being freed and separated from 
 each other, but in sincerity and truth for the causes men- 
 tioned in the said petition or libel." If not so sworn or 
 affirmed to, the omission is a fatal defect.^ And it must be 
 sworn or affirmed to before a judge or justice of the peace, 
 not before a notary public* 
 
 Service of the Subpoena. 
 
 § 255. Where the respondent can be found in the county, 
 the law requires actual personal service of the subpoena. It 
 contemplates an adverse proceeding, and therefore an ac- 
 ceptance of service cannot be recognized, but will be deemed 
 evidence of collusion f and if the respondent could not be 
 found in the county, then, upon return of the subpoena, and 
 proof made of the fact, an alias subpoena may issue, and may 
 be served personally or by advertisement, as directed by 
 the Act of 13th March, 1815, section third." 
 
 Testimony How Taken. 
 
 § 256. After service of the subpoena, either personally or 
 by advertisement, and due proof of service, as required by 
 
 ' Oattison v. Cattison, 10 H. 276. ' Eccler v. Ecoler, Common Pleas 
 
 2 BrinckU v. Brinoklfe, 4 Leg. Gaz. Phila., 2d July, 1853, MS. ; 1 Bright. 
 
 180 ; 30 Leg. Int. 36. Purd. p. 510, note g. 
 
 « Hoffman v. Hoffman, 6 C. 420. « Ante, p. 218. 
 * Reeves v. Eeeves, 34 Leg. Int. 115, 
 
PROCEEDINGS TO OBTAIN A DIVORCE. 225 
 
 the Act of 13th March, 1815, at the return of the suhpoena, 
 testimony may be taken in the manner provided by the 
 rules of the respective courts, under the power given them 
 by the Act to " make such preparatory rules and orders in 
 the cause that the same may be brought to a hearing and 
 determined at the term to which the said process may be 
 returnable, or afterwards," &c.^ If neither party demands 
 an issue, the court may then inquire and decide upon the 
 case in the presence of the parties, or if either of them will 
 not attend, then, ex parte, by the examination of witnesses 
 in open court, or upon written interrogatories, or by ex- 
 hibits or other legal proofs had either before or at the 
 hearing.^ 
 
 An Issue. 
 
 § 257. If either of the parties desires any matter of fact, 
 that is afl&rmed by the one and denied by the other, to be 
 tried by a jury, an issue is to be formed, and the same 
 tried accordingly.^ But the issue must be demanded in 
 time ; and if this be not done, the party forfeits his right to 
 it. He must exercise his right reasonably and with vigi- 
 lance.* If a party be in court by appearance, or there is a 
 service of the subpoena on him, and he makes no application 
 for an issue until after the testimony has been taken, and 
 the court is about to determine the case, it is too late then 
 to demand an issue.^ Even after taking the testimony 
 before a commissioner, a party may possibly be entitled to 
 an issue if anything appeared in the course of the testimony 
 which made an issue desirable, but in that event he should 
 at once withdraw, giving the opposite party notice of his 
 intention to apply, and make his application to the court at 
 
 ' Act ]3th March, 1815, § 2 (6 Sm. ' Ante, p. 217. 
 287), anU, p. 217. * Allison v. Allison, 10 Wr. 323. 
 
 2 Act 13th March, 1815, I 2 (6 Sm. ' Ibid. 
 287), mite, p. 217. 
 15 
 
226 
 
 THE LAW OP MARRIED WOMEN. 
 
 the earliest possible moment thereafter.^ A demand for an 
 issue made at the second meeting before an examiner may 
 be in time.^ To entitle a party to relief who has failed to 
 comply with the rules regulating proceedings in divorce, in 
 any case, he must show that the application is made without 
 unreasonable delay ; that it is based upon surprise, haste, 
 ignorance, or mistake; that unless relief be given, positive 
 injury and injustice would be done ; and that no right has 
 accrued to the other side which it would be inequitable or 
 unjust to disturb.^ Where, therefore, proceedings in divorce 
 had been carried on regularly, the respondent appearing 
 and taking part therein, until entry of the rule for divorce, 
 leave to file an answer nunc fro tunc was refused.* 
 
 Proceedings where Respondent is. in Prison. 
 
 § 258. Where the respondent has been confined in prison 
 under a conviction for a misdemeanor, from the commence- 
 ment of proceedings in divorce, and the testimony on the 
 part of the libellant has been taken, the court will not suff"er 
 the cause to be further proceeded with until the respondent 
 is out of prison, and personal notice is given to him of 
 further proceedings in the case, or until he is proceeded 
 against by leave of the court. The proper practice in such 
 a case is to apply to the court for leave to proceed against the 
 party in custody, and then the court will make such orders 
 in the case as will protect the rights of the prisoner, and if 
 necessary will bring him into court on a writ of habeas 
 corpus for that purpose.^ 
 
 Discontinuance of lAhel. 
 § 259. A libel for divorce, like other actions, cannot be 
 
 ' Allison V. Allison, 10 Wr. 323. ' Shay ». Shay, supra. See Magill's 
 
 See Shay v. Shay, 29 Leg. Int. 317 ; Appeal, 9 P. F. S. 431. 
 s. c, 9 Phila. 521. * Shay v. Shay, supra. 
 
 ' Derringer v. Derringer, 8 Phila. ° Finley v. Pinley, 4 Leg. Gaz. 
 
 269. 180. 
 
PROCEEDINGS TO OBTAIN A DIVORCE. 227 
 
 discontinued without the express or implied leave of the 
 court ;^ and it will not be permitted where it will give the 
 plaintiff an advantage, or tend to oppress the defendant.^ 
 Thus, where suit was brought in Dauphin county, in which 
 the defendant resided, and was discontinued without ex- 
 press leave, and another suit commenced for the same cause 
 of action in Philadelphia, the home of the plaintiff, the court 
 refused to sanction the discontinuance, because the discon- 
 tinuance appeared to be entered with a view to vex and 
 oppress the defendant, gave to the plaintiff an advan- 
 tage, and subjected the defendant to an inconvenience, 
 which was contrary to justice and equity.^ 
 
 ' Murphy v. Murphy, 28 Leg. Int. v. Fisher, 1 R. 341. See also Pollock 
 
 340 ; s. c, 8 Phila. 357 ; Bank ^v. v. Hall, 3 Y. 42 ; Broom v. Fox, 2 Y. 
 
 Macalester, Same v. Wager, 6 W. 531 ; MoCollough v. McCollough, 1 
 
 & S. 149. Binn. 214. 
 
 ' Murphy v. Murphy, supra ; Bank " Bank v. Fisher, supra. 
 
228 
 
 THE LAW OF MARBIED WOMEN. 
 
 CHAPTER XXV. 
 
 EFFECT OF DIVORCE. 
 
 § 260. A decree of divorce from the bond of matrimony 
 entirely annuls the marital relation, rights and duties, and 
 either party is at liberty to marry again, in the same man- 
 ner as if they never had been married. It works an entire 
 separation,^ except that in case of divorce for the cause of 
 adultery, the guilty party shall not marry the person with 
 whom the crime was committed during the life of the former 
 wife or husband.^ There is no difference in principle 
 whether the marriage is destroyed by death or by sentence 
 of the law.^ And a decree of divorce, though for adultery 
 on the part of the husband, deprives the wife of dower in 
 his lands.* The court, however, has power to vacate a 
 decree of divorce procured by fraud ; and even though the 
 
 1 Flory V. Becker, 2 Barr 472 ; 
 Miltimore v. Miltimore, 4 Wr. 156. 
 Act of 13th March, 1815, | 8 (6 Sm. 
 287), by which it is provided that 
 after a sentence nullifying or dissolv- 
 ing the marriage, " all and every the 
 duties, rights and claims accruing to 
 either of the said parties" (viz., the 
 husband and wife) " at any time 
 theretofore, in pursuance of the said 
 marriage, shall cease and determine, 
 and the said parties shall severally be 
 at liberty to marry again, in the like 
 manner as if they never had been 
 married." 
 
 ^Act of 13th March, 1815, § 9 
 (6 Sm. 288) ; Miltimore v. Miltimore, 
 supra. 
 
 " Flory V. Becker, supra; Miltimore 
 V. Miltimore, supra. 
 
 * Miltimore v. Miltimore, supra. 
 A wife who has deserted her hus- 
 
 band, retaining her child in her own 
 custody, cannot, after a divorce ob- 
 tained by her husband on the ground 
 of such desertion, maintain an action 
 against him for the support and 
 maintenance of the child. The father 
 being willing to receive and support 
 his child, cannot be made liable for 
 its maintenance to one who wrong- 
 fully withheld it from him : Fitler v. 
 Fitler, 9 C. 50. Where a divorce has 
 been procured by the husband on the 
 ground of desertion, and issue is born 
 nearly two years after the mother 
 left her husband, the record of the 
 divorce concludes only the desertion 
 of the wife during that time, but not 
 the non-access of the husband, and 
 does not estop the issue from claim- 
 ing to be legitimate : Kleinert v. 
 Ehlers, 2 Wr. 439. 
 
EFFECT OF DIVORCE. 229 
 
 application to vacate be made after the death of the party 
 who obtained the decree/ and though a marriage has been 
 contracted subsequently to the decree, by the party procur- 
 ing it, with one who acted upon the faith of the decree, and 
 they have issue born.^ 
 
 1 Smith V. Smith, 3 Phila. 489 ; ' Allen v. Maclellan, 2 Jones 328. 
 Boyd's Appeal, 241. 
 
230 
 
 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XXVI. 
 
 husband's liability for alimony and costs PENDENTE LITE. 
 
 § 261. Whether the husband be libellant or respondent, 
 if the wife be not herself of sufficient ability, he may be 
 compelled to make her a sufficient allowance to enable her 
 to maintain or defend her suit, and for her maintenance 
 during its prosecution ; and it is the duty of the court to 
 make such a decree, having regard to the ability of the 
 husband.-' But this is entirely within the discretion of the 
 court below, both as to amount and duration, and not the 
 subject of review.^ The husband cannot escape the pay- 
 ment of this allowance unless he be destitute of all ability, 
 in which case, if he be the libellant, the court will not re- 
 quire him to pay, but will stay proceedings in the suit until 
 provision is made for the wife.^ If the wife be the libellant, 
 she may have costs taxed de die in diem, and alimony 
 awarded by the court; and if it appear that the husband has 
 the means of payment, the order of the court will be en- 
 forced by attachment.* Whenever costs and alimony are 
 applied for, it should be shown to the court that the hus- 
 band has some means of paying the allowance asked for, to 
 enable the court to determine the proper sum to be allowed, 
 and to judge of the propriety of compelling a performance 
 of their order. The attachment for non-payment is not of 
 course. The court will exercise its discretion in awarding 
 it ; and as the attachment is designed to enforce a compliance 
 
 ' Melizet v. Melizet, 1 Pavs. 78 ; Ormsby v. Ormsby, I Phila. 578 ; 
 
 Graves v. Cole, 7 11. 173 ; Kline v. Shoop's Appeal, 10 C. 233. 
 
 Kline, 1 Phila. 383 ; Waldron v. ' Waldron v. Waldron, supra, 
 
 Waldron, 5 P. F. S. 235 ; Grove's ° Ormsby v. Ormsby, supra. 
 
 Appeal, 18 P. P. S. 145; Harris v. ' Ormsby t). Ormsby, sup/a; Grove's 
 
 Harris, 1 Phila. 442 ; Banes v. Banes, Appeal, 18 P. F. S. 145. 
 28 Leg. Int. 165 ; s. c, 8 Phila. 250 ; 
 
husband's liability for alimony and costs. 231 
 
 with the order, and not to punish for being unable to per- 
 form it, the attachment will not be issued where the court 
 is satisfied that the party is destitute of the means of mak- 
 ing the required payments. It would be useless to imprison 
 him, as by that means he would be disabled from earning a 
 livelihood, without in any way benefiting the cause of the 
 wife. But unless the plea of poverty is well founded, the 
 order for payment of costs and alimony will be enforced by 
 attachment.^ 
 
 § 262. The decree for allowance is not, however, a judg- 
 ment upon which an execution could issue, neither is it a 
 lien upon the husband's lands, nor a decree in equity for the 
 payment of money .^ And the husband cannot be decreed 
 to pay the costs where he is successful in obtaining a 
 divorce. These are of statutory origin. The Act of 13th 
 March, 1815, section 12 (6 Sm. 288), enacts that the court 
 may award costs to the party in whose behalf the decree or 
 sentence (that is of divorce) shall pass, or that each party 
 shall pay his or her own costs, but the Act does not author- 
 ize the imposition of all the costs upon the successful party .^ 
 Where a libel at the suit of the wife is dismissed with costs, 
 2. fieri facias may issue against the next friend for the costs/ 
 
 1 Ormsby v. Ormsby, 1 Phila. 578. ' South v. South, 1 Pitts. L. J. 187 ; 
 
 2 Grove's Appeal, 18 P. F. S. 145. 1 Bright. Purd. 511, note d. 
 ' Shoop's Appeal, 10 C. 235. 
 
232 THE LAW OF MARRIED WOMEN. 
 
 CHAPTER XXVII. 
 
 APPEAL. 
 
 § 263. Proceedings in cases of divorce are not according 
 to the course of the common law, and a writ of error does 
 not lie to the final sentence of the Court of Common Pleas, 
 decreeing a divorce, but an appeal only -^ and, upon appeal, 
 the matter is taken up de novo, and new evidence is admitted 
 in the superior court, which court may make such decree 
 as under all circumstances may appear proper.^ But this 
 does not apply where the cause has been tried by a jury. 
 In such case, although the appeal lies, the court above wUl 
 not re-try the matters of fact which have been decided by 
 the jury.^ If the recognizance required by the 13th section 
 of the Act of March 13, 1815 (6 Sm. 287), be not filed, the 
 appeal will be dismissed.* Upon appeal, an affidavit that 
 the appeal is not intended for delay should be filed; but this 
 is not a prerequisite, and the party wiU be permitted to 
 retrieve the omission to file such an affidavit afterwards, 
 provided it is done in proper time ; and the court will not 
 dismiss the appeal where the defect has been supplied 
 during the term and before motion.^ 
 
 ' Miller v. Miller, 3 Binn. 31 ; Allen ' Andrews v. Andrews, 5 S. & R. 
 V. Maclellan, 2 Jones 332, Act March 374. 
 13, 1815, § 13 (6 Sm. 287). * Brom ». Brom, 2 Wh. 94. 
 
 * Miller v. Miller, supra. ^ Brentlinger v. Brentlinger, 4 R. 
 
 241. 
 
DIVORCE FKOM BED AND BOARD. 233 
 
 CHAPTER XXVIII. 
 
 DIVORCE FROM BED AND BOARD. 
 
 § 264. The distinguishing features between a divorce from 
 the bond of matrimony and from bed and board are, that in 
 the former, either party, if injured, is entitled to a divorce ; 
 the marriage relation is entirely dissolved ; each party is 
 treated as single, and may marry again j while in the latter, 
 the wife only can apply for the divorce; the marriage relation 
 continues, there being but a legal separation;^ neither party, 
 therefore, is at liberty to marry again ; and the husband 
 may be decreed to pay alimony to the wife. 
 
 Causes of Divorce from Bed and Board. 
 
 § 265. The causes of divorce from bed and board are : 
 
 1. If the husband shall maliciously abandon his family; 
 or, 
 
 2. Turn his wife out of doors ; or, 
 
 3. By cruel and barbarous treatment endanger her life ; 
 or, 
 
 4. Ofier such indignities to her person as to render her 
 condition intolerable, or life burdensome, and thereby force 
 her to withdraw from his house and family ; or, 
 
 5. Adultery. 
 
 § 266. By a supplement to the Act of March 13, 1815 
 (6 Sm. 286), passed February 26, 1817, section 1 (6 Sm. 
 405),^ if a husband shall, maliciously, either abandon his 
 
 ' Clark V. Clark, 6 W. & S. 87. as to render her condition intolerable, 
 
 'The section is as follows: "If or life burdensome, and thereby force 
 
 any husband shall maliciously either her to withdraw from his house and 
 
 abandon his family or turn his wife family, it shall be lawful for the Court 
 
 out of doors, or, by cruel and barbar- of Common Pleas of the respective 
 
 ous treatment, endanger her life, or counties, upon complaint, and due 
 
 offer such indignities to her person proof thereof, made in the manner 
 
234 
 
 THE LAW OF MARRIED WOMEN. 
 
 family, or turn his wife out of doors, or, by cruel and bar- 
 barous treatment, endanger her life, or offer such indigni-: 
 ties to her person as to render her condition intolerable, or 
 life burdensome, and thereby force her to withdraw from 
 his house and family, the Court of Common Pleas, of the 
 respective counties, may grant her a divorce from bed and 
 board, and allow her alimony. And by a supplement to the 
 Divorce Acts passed April 11, 1862, section 1 (P. L. 430),^ 
 it is provided that, in addition to the several causes men- 
 tioned in the Act or Acts for which a married woman may 
 
 prescribed in the Act to which this 
 is a supplement, to grant the wife a 
 divorce from bed and board, and also 
 to allow her such alimony as her hus- 
 band's circumstances will admit of, 
 so as the same do not exceed the 
 third part of the annual profit or in- 
 come of his estate, or of his occupa- 
 tion and labor ; which shall continue 
 until a reconciliation shall take place, 
 or until the husband shall, by his pe- 
 tition or libel, offer to receive and co- 
 habit with her again, and to use her 
 as a good husband ought to do ; and 
 then, in such case, the court may 
 either suspend the aforesaid sentence 
 or decree, or, in case of her refusal 
 to return and cohabit, under the pro- 
 tection of the court, discharge and 
 annul the same according to their 
 discretion ; and if he shall fail in 
 performing his said ofTers and en- 
 gagements, the former sentence or 
 decree may be revived and enforced, 
 and the arrears of the alimony or- 
 dered to be paid." 
 
 ' By this section it is enacted " That 
 in addition to the several causes men- 
 tioned in the act or acts (to which 
 this is a supplement) for which a 
 married woman may obtain a divorce 
 from the bed and board of her hus- 
 band, with allowance of alimony, 
 
 shall be that of adultery ; and it shall 
 be lawful for the Court of Common 
 Pleas of the respective counties, upon 
 complaintanddueproof thereof, made 
 in the manner prescribed by the said 
 Acts to which this is a supplement, 
 or either of them, to grant the wife 
 a divorce from bed and board ; and, 
 in addition to the powers now con- 
 ferred upon the said court by the 
 said Acts, or either of them, to grant 
 alimony, and the amount thereof, it 
 shall be lawful for the said court to 
 decree to be paid by the said hus- 
 band, in addition thereto, to his said 
 wife, the one-half of the value of all 
 money and property of every kind 
 whatsoever which the said husband 
 may have received by, through or 
 from his said wife, as her individual 
 money and property ; which amount 
 the said court shall inquire into and 
 ascertain by proper proof, on and 
 at the time of the hearing of the said 
 complaint ; which decree the said 
 court shall have the power to enforce, 
 suspend, or discharge and annul, in 
 the same manner as the said court 
 may now enforce, suspend, or dis- 
 charge and annul its decrees, under 
 and by virtue of the said Acts, or 
 either of them." 
 
DIVORCE FROM BED AND BOARD. 235 
 
 obtain a divorce from the bed and board of her husband, 
 with allowance of alimony, shall be that of adultery. 
 
 Malicious Abandonment of his Family ly the Hushand, or 
 Turning his Wife Out of Doors. 
 
 § 267. Unlike the case of divorce from the bond of matri- 
 mony, where the desertion must have been continued for 
 two years to entitle either party to it, a divorce from bed 
 and board and alimony may be applied for and decreed the 
 very moment it appears that the husband has maliciously 
 abandoned his family, or turned his wife out of doors. 
 The real object of the proceeding is to obtain a support 
 for the wife by the husband, while she, from his fault, is 
 obliged to live apart from him, and to this support she is 
 entitled eo instanti the husband maliciously abandons his 
 family, or turns her out of doors. The Act providing 
 for this species of divorce is a municipal regulation for the 
 protection of the community as well as the wife; and when, 
 therefore, the husband refuses to maintain his wife, he, and 
 not the community, must bear the burden of her support. 
 Where, therefore, a foreigner becomes domiciled here, and 
 his wife follows him, and he refuses to receive her, this is a 
 virtual turning of her out of doors, and she is entitled to a 
 divorbe from bed and board, and to alimony.-^ But where a, 
 wife, who was absent from her husband, informed him by 
 letter of her intention to return to him at a time named, and 
 he replied to her, "I shall not receive you. You left my 
 bed and board without my permission. You have daily and 
 hourly insulted me, and treated me with the utmost con- 
 tempt. By the laws of the State I cannot refuse you ad- 
 mittance ;" and the wife construed this to be a refusal to 
 receive her at his house, and resting upon this construction 
 remained away ; but the husband, in the suit for divorce, 
 
 ' M'Dermott's Appeal, 8 W. & S. 443 ; Sowers v. Sowers, 33 Leg. Int. 
 256. And see Grove's Appeal, 1 Wr. 220. 
 
236 THE LAW OF MARRIED WOMEN. 
 
 explained that no more was meant by the expression, " I 
 shall not receive you," than that he would not meet his wife 
 at the place of her arrival, — this would not be such a turn- 
 ing out of doors as would entitle the wife to a divorce.^ 
 
 § 268. There would seem to be no case in Pennsylvania 
 in which the suit of the wife was maintained on the ground 
 that she was turned out of doors, where it was not shown 
 that the wife was ejected by force, or was compelled to 
 leave because of a threat to employ it, and a reasonable 
 apprehension that it would be used against her; or a refusal 
 to receive her upon demand that she should be taken into 
 her husband's home as wife; or an emphatic refusal to allow 
 her to remain after she had returned, accompanied by a 
 declaration of a wish to remain and " behave herself as a 
 good wife ought to do ;" or, lastly, where the facts did not 
 show a justification on the part of the wife in withdrawing 
 from the home of her husband, which would entitle her to 
 a divorce in her suit against an offending husband.^ 
 
 Cruel and Bariarous Treatment, and Indignities to Person of 
 
 Wife. 
 
 § 269. The law in reference to these causes of divorce 
 from bed and board differs in no degree from the same 
 causes of divorce from the bond of matrimony, the langauge 
 being almost identical; and as this has been treated in a 
 preceding part of this work,' it is unnecessary to repeat it 
 here. A wife may file her bill for a divorce from the bond 
 of matrimony for these causes under the Act of 1815, or 
 for alimony under that of 1817, at her election.* And upon 
 the libel of the wife for cruel and barbarous treatment, and 
 praying a divorce from the bond of matrimony, and alimony, 
 
 ^ Sowers v. Sowers, 33 Leg. Int. 220. ' Ante, p. 196, et seq. 
 ' Sowers V. Sowers, supra, per AUi- * Light v. Light, 1 Watts 263. 
 son, P. J. 
 
DIVORCE FROM BED AND BOARD. 237 
 
 the court may, notwithstanding the informality of the peti- 
 tion, decree a divorce from bed and hoard, and alimony, if 
 the libellant does not object to the decree.^ 
 
 § 270. By the express provisions of the Act of 1817, 
 alimony decreed by the court upon a divorce from bed and 
 board shall continue until a reconciliation shall take place, 
 or until the husband shall, by his petition or libel, offer to 
 receive and cohabit vrith his vrife again, and use her as a 
 good husband ought to do ; and in that event the court may 
 either suspend the sentence or decree, or in case the wife 
 refuses to return and cohabit, under the protection of the 
 court, discharge and annul it in their discretion ; and if the 
 wife return and the husband fail in performing his offers 
 and engagements, the former sentence may be revived and 
 enforced, and arrears of the alimony ordered to be paid. 
 Alimony continues only until a reconciliation takes place ; 
 and when the wife returns to her husband, she gives up 
 her claim to arrears of alimony — the reconciliation vacates 
 the order of alimony ; and if she afterwards leaves her hus- 
 band without just cause, she loses her right to alimony.^ 
 But if, after her return, she leaves him in consequence of 
 renewed acts of cruelty, the decree for alimony, with arrears 
 from the date of the last separation, may be enforced, the 
 decree being only suspended during the reconciliation.^ 
 Condonation, it may be observed, after the acts of violence 
 and ill treatment complained of, is not a bar to a divorce 
 a mensa et thoro, and there need not be proof of new outrages 
 after the reconciliation.* And if, after a divorce granted 
 and separation, the husband shall, by his petition or libel, 
 offer to receive and cohabit with his wife again, and use her 
 
 ^ Klingenberger v. Klingenberger, September, 1785, | 10, whioh is 
 
 6 S. & R. 187. See Smith v. Smith, 3 almost identical with that of 1817, 
 
 S. & R. 248. ante, p. 233, n. 2. 
 
 2 Tiffin V. Tiffin, 2 Binn. 206. This ' Nathans v. Nathans, 2 Phila. 393. 
 
 case arose under the Act of 19th * Hollister v. Hollister, 6 Barr 452. 
 
238 THE LAW OF MARRIED WOMEN. 
 
 as a good husband ought to do, yet where it appears, hy the 
 proofs exhibited, that the husband's conduct has been of 
 such a nature that the person of the wife cannot be in 
 safety, the court will grant an absolute divorce from bed 
 and board, notwithstanding the husband's offer. The Act is 
 not compulsory upon the court, but it rests in their discre- 
 tion, under all the circumstances of each case, whether they 
 will permit the husband to receive his wife again, against her 
 consent.-^ And it is a question for the court whether offers 
 of a husband to renew cohabitation are made in sincerity, 
 and with an intention bond fide to perform his marital 
 duty.^ 
 
 Adultery. 
 
 § 271. Like the last two causes of divorce mentioned, the 
 object of the Act of April 1st, 1862 (P. L. 430),^ making adul- 
 tery a cause of divorce from bed and board, is that the wife, 
 if she chooses, may have such a divorce, zvith alimony, instead 
 of a divorce from the bond of matrimony, without alimony. 
 And the Act confers upon the court power to decree to be 
 paid by the husband to his wife, in addition to alimony, one- 
 half the value of all money and property of every kind he 
 may have received through her as her individual money and 
 property; the amount of which the court are to inquire into 
 and ascertain, and to enforce, suspend, or discharge and 
 annul their decree, as under former Acts relating to divorces. 
 
 1 Thompson v. Thompson, 1 Y. 78 ; "^ MoClurg's Appeal, 16 P. F. S. 
 s. c, 2 Dall. 128 ; Breinig v. Breinig, 373. 
 2 C. 161. ' Anti, p. 234, n. 1. 
 
ALIMONY. 239 
 
 CHAPTER XXIX. 
 
 ALIMONY. 
 
 § 272. The amount of alimony wliicli maybe decreed the 
 wife under the Act of 1817^ must be such as her husband's 
 circumstances will admit of, not exceeding the third part of 
 the annual profit or income of his estate, or of his occupa- 
 tion and labor; while, under the Act of 1862,^ for the cause 
 of adultery, as we have seen,^ the court may decree to be paid 
 by the husband to his wife one-half the value of all money 
 and property of every kind whatsoever which he may have 
 received from her, as her individual maney and property; 
 which amount the court is to inquire into and ascertain, by 
 proper proof, at the time of the hearing of the complaint. 
 Under the Act of 1817, one-third of the husband's annual 
 profits or income, from his estate or his labor, is the maxi- 
 mum of alimony.* And in estimating this, where a portion 
 of the husband's rentals are appropriated to the payment of 
 creditors whose claims are secured on the estate, one-third 
 of the excess only will be allowed.^ The wife is entitled 
 to alimony even though she has, under her husband's re- 
 presentations that he had no property, waived her claim to 
 it in open court, if it be afterwards discovered that he had 
 property .° 
 
 § 273. An appeal lies to the Supreme Court on a decree 
 from bed and board and alimony in the Court of Common 
 Pleas, under this Act of 1817.' The order for alimony is 
 part of the final decree, and when brought up by appeal, 
 with aU the evidence, is the subject of the jurisdiction of 
 
 ' Ante, p. 233, n. 2. ' MoClurg's Appeal, supra. 
 
 ' Ante, p. 234, n. 1. * M'Karracher v. M'Karracher, 3 
 
 ' Ante, p. 234, n. 1, and p. 238. Y. 56. 
 
 * MoClurg's Appeal, 16 P. F. S. 374. ' Kobbartsu. Robbarts, 9 S. &R. 191. 
 
240 
 
 THE LAW OF MARRIED WOMEN. 
 
 the court above ;^ but after a trial by jury, the decision by 
 the court below as to the amount of alimony is conclusive, 
 the court above having no authority to review it.^ 
 
 § 274. By the Act of 15th April, 1845, section 1 (P. L. 
 455),^ upon a decree a mensa et thoro, and the allowance of 
 alimony, made or thereafter made by any of the Courts of 
 Common Pleas of the respective counties of the Common- 
 wealth, the prothonotary of the court is required to enter 
 the decree on the judgment docket of the court, and the 
 decree, so entered, is made a lien on the real estate of the 
 respondent, until satisfied for the amount due at the time of 
 
 iMcClurg's Appeal, 16 P. F. S. 
 374. 
 
 ' Breinig v. Breinig, 2 0. 161. 
 
 ' The Act is as follows : " Upon 
 (when) a decree a mensa et thoro 
 and the allowance of alimony shall 
 have been made by any of the Courts 
 of Common Pleas of the respective 
 counties of this Commonwealth, or 
 hereafter may be made, it shall be 
 the duty of the prothonotary of said 
 court to enter the said decree on the 
 judgment docket of said court, which 
 said decree, when so entered, is here- 
 by declared to be and shall remain a 
 lien on the real estate of such re- 
 spondent, until the same is satisfied 
 for the full amount that may be due 
 up to the period of such satisfaction ; 
 and after such lien shall be so en- 
 tered, it shall be the duty of the pro- 
 thonotary of said court, upon afS- 
 davit by the libellant that any pay- 
 ment under said decree, as the same 
 has been made due and payable by 
 the court, is due and unpaid, to issue 
 execution on the written order of the 
 libellant, or her attorney, setting 
 forth the amount so due and unpaid, 
 which shall be directed to and served 
 
 by the sheriff in like manner as ex- 
 ecutions upon judgment; and if the 
 court should be of opinion that the 
 said lien is not sufficient for the full 
 or permanent security for payment of 
 said decree, it shall have power and 
 authority, on satisfactory proof being 
 made that the respondent is possessed 
 of sufficient estate, to order a decree 
 and require that security, such as 
 shall be determined and approved by 
 said court, shall be given for the due 
 payment of said alimony according 
 to the terms of said decree ; the said 
 security to be either by bond, with 
 sufficient sureties, or mortgage on real 
 estate, taken in the name of the Com- 
 monwealth, to the use of the party 
 entitled to said alimony, or by the 
 deposit of money, to be invested as 
 the court may deem proper, as may 
 seem to the court sufficient to secure 
 the payment of said alimony, as the 
 same may fall due. 
 
 " I 2. The said courts may enforce 
 their decrees by attachment, on the 
 return of which they may make such 
 order, either to imprison or discharge 
 the defendant, as the facts of the case 
 may justify." 
 
ALIMONY. 241 
 
 such satisfaction ; and after the lien is so entered, it is made 
 the duty of the prothonotary of the court, upon affidavit of 
 the libellant that any payment under the decree as made 
 due and payable by the court is due and unpaid, to issue 
 execution on the written order of the libellant or her 
 attorney, setting forth the amount due and unpaid, which 
 execution shall be directed to and served by the sheriff in 
 like manner as executions upon judgment; and should the 
 court be of opinion that the lien is not sufficient for the full 
 or permanent security for payment of the decree, it is given 
 power and authority, on satisfactory proof being made that 
 the respondent has sufficient estate, to decree that security 
 such as the court shall determine and approve shall be 
 given for the payment of the alimony, according to the 
 terms of the decree ; the security to be either by bond, 
 with sufficient securities, or mortgage on real estate, taken 
 in the name of the Commonwealth, to the use of the party 
 entitled to the alimony, or by the deposit of money to be 
 invested as the court may deem proper and sirfficient to 
 secure payment of the alimony as it falls due. And by 
 section 2 of the same Act the courts are empowered to en- 
 force their decrees by attachment, on the return of which 
 they are authorized to make such order, either to imprison or 
 discharge the defendant, as the facts of the case may justify. 
 
 § 275. The lien upon the husband's land consequent on 
 a decree for alimony does not operate merely to bind the 
 land on his making default in the stated payments ordered, 
 and then only to the amount for which he is in arrear, but 
 it is a charge upon the land for the full compliance with the 
 decree until it is vacated or satisfied ; and the land passes 
 to the purchaser from the husband incumbered with the 
 charge.^ But a decree for alimony pendente lite is not 
 within the Act, and is not, therefore, a lien upon the land, 
 
 1 Melizet v. Melizet, 4 Penna. L. J. 381. 
 16 
 
242 THE LAW OP MARRIED WOMEN. 
 
 but the decree may be enforced by attachment, as a neces- 
 sary incident to the jurisdiction to decree a divorce.-^ A 
 defendant sentenced to imprisonment for non-compliance 
 with a decree for alimony is not entitled to be discharged 
 under the insolvent laws.^ 
 
 § 276. Alimony is not considered the separate property 
 of the wife, but it is that proportion of the husband's estate 
 which the court allows her for her present subsistence and 
 livelihood, according to law, when they decree a separation 
 from bed and board ; and upon her death, arrears of alimony 
 belong to the husband, and cannot be recovered from him 
 by her . personal representatives, unless the husband has 
 evaded payment and thereby compelled the wife to con- 
 tract debts, in which case the personal representatives of 
 the wife may recover the arrears for the benefit of the 
 creditors.^ 
 
 1 Grove's Appeal, 18 P. F. S. 143. « Clark v. Clark, 6 W. & S. 85 ; 
 
 ' Ileise V. Heise, Common Pleas, Bouslough v. Bouslough, 18 P. F. S. 
 
 Lancaster, 27th Dec, 1848, Pardon's 499. 
 Digest, vol. 1, p. 513, n. i. 
 
A VIEW OF THE LAW OF TRUSTS. 
 
 . CHAPTER XXX. 
 
 THEIR ORIGIN AND NATURE. 
 
 § 277. Trusts are so intimately connected with the es- 
 tates of married women that the topic cannot be considered 
 entirely foreign to the subject-matter of this volume. It is 
 not intended, however, to treat of th6 general doctrine of 
 trusts, but more particularly to illustrate the application of 
 the rule in Shelley's case to them as determined by the ad- 
 judicated cases in Pennsylvania, which, of course, involves 
 a view of the doctrine of active and passive trusts, the dis- 
 tinction between them, and under what circumstances the 
 legal estate in lands is executed in the cestui que trust, 
 under the Statute of Uses ; and also to furnish an abstract 
 of the principal cases, with a classification of them. It may 
 be well, however, as prefatory to this, to introduce a brief 
 account of the origin and nature of trusts ; in doing which, 
 we but reproduce what will be found in the text books. 
 
 § 278. Trusts are the offspring of uses. A use is where 
 the legal estate in lands is in A, in trust, that B shall take 
 the profits, and that A will make and execute estates accord- 
 ing to the direction of B. Before the Statute of Uses, a use 
 was a mere confidence in a friend, to whom the estate was 
 conveyed by the owner without consideration, to dispose of 
 it upon trusts designated at the time, or to be afterwards 
 appointed by, the real owner. The feoffee or trustee was, 
 to all intents and purposes, the real owner of the estate at 
 law, and the cestui que use had only a confidence or trust, 
 
241 A VIEW OF THE LAW OF TRUSTS. 
 
 for which he had no remedy at common law. The English 
 ecclesiastics borrowed uses from the Roman law, and intro- 
 duced them into England in the reign of Edward III. or 
 Richard II., to evade the Statutes of Mortmain, by granting 
 lands to third persons to the use of religious houses, and 
 which the clerical chancellors held to be fidei commissa, and 
 binding in conscience. Uses having, in time, been perverted 
 to mischievous purposes, a continual struggle was maintained 
 for upwards of a century between the patrons of uses and 
 the English Parliament, the one constantly masking property 
 and separating the open legal title from the secret equitable 
 ownership, and the other, by a succession of statutes, en- 
 deavoring to fix the duties and obligations of ownership upon 
 cestui que use ; when at last the Statute of 27 Henry VIII., 
 commonly called the Statute of Uses, was enacted, which 
 transferred uses into possession by turning the interest of 
 the destui que use into a legal estate, and annihilating the in- 
 termediate estate of the feoffee ; so that if a feoffment was 
 made to A and his heirs, to the use of B and his heirs, B, 
 the cestui que use, became seized of the legal estate by force 
 of the statute. The legal estate, as soon as it passed to A, 
 was immediately drawn out of him and transferred to B, 
 and the use and the land became convertible terms. Thus 
 the equitable estate in the use became a legal estate in the 
 land, was liable to all those rules to which common law es- 
 tates were liable ; and was thenceforth conveyed as legal 
 estates, in the same manner and by the same words. It 
 was the intention of the statute to extirpate the abuses and 
 frauds which were theretofore practiced by uses, by destroy- 
 ing the estate of the feoffee to uses, and reducing the estate 
 in the use to an estate in the land. It intended to destroy 
 uses in their distinct state, but not to interfere with the 
 then new modes of conveyance to uses ; and the manner of 
 raising uses out of the seisin created by a lawful transfer 
 stood as it had existed before. The cestui que use, since the 
 statute, however, takes the legal estate according to such 
 
THEIR ORIGIN AND NATURE. 245 
 
 quality, manner and form as he had in the use. The com- 
 plex and modified interests annexed to uses were engrafted 
 upon the legal estate. If it was the object of the Stat- 
 ute of Uses to destroy uses, that object was subverted by 
 the courts of law and equity. It was soon held that the 
 statute executed only the first use, and that a use upon a 
 use was void.^ In a feoffment to A, to the use of B, to 
 the use of C, the statute was held to execute only the use 
 to B, and there the estate rested, and the use to did not 
 take effect. In a bargain and sale to A in fee, to the use 
 of B in fee, the statute passes the estate to A by executing 
 the use raised by the bargain and sale, but the use to B, 
 being a use in the second degree, is not executed by the 
 statute, and it becomes a mere trust, and one which a court 
 of equity will recognize and enforce. Thus a strict con- 
 struction of the statute, at law, gave a pretext to equity to 
 interfere ; and it was held in chancery, that the uses in 
 certain cases, , though void at law, were good in equity, and 
 uses were thus revived under the name of trusts. A regular 
 and enlightened system of trusts was gradually formed and 
 established ; the ancient use was abolished, and a secondary 
 use or trust introduced. Trusts are now what uses were 
 before the statute, so far as they are mere fiduciary interests, 
 distinct from the legal estate and to be enforced only in 
 equity. There is no particular set of words or mode of ex- 
 pression requisite for the purpose of raising trusts if the in- 
 tention be clear. In the general and enlarged sense, a trust 
 is a right on the part of the cestui que trust to receive the 
 profits and to dispose of the lands in equity. But there are 
 special trusts for the accumulation of profits, the sale of es- 
 tates, and other dispositions of trust funds, which preclude 
 all power of interference on the part of the cestui que trust, 
 until the purposes of the trust are satisfied. Trusts are 
 
 ' In Pennsylvania, however, it seems outed : Kuhn v. Newman, 2 C. 231, 
 that a use limited upon a use is exe- per Lowrie, J. 
 
246 
 
 A VIEW OF THE LAW OF TRUSTS. 
 
 either executory or executed. A trust is executory when it 
 is to be perfected at a future period by a conveyance or sei> 
 tlement, as in the case of a conveyance to B in trust to 
 convey to C. It is executed either when the legal estate 
 passes, as in a conveyance to B in trust for the use of C, 
 or when only the equitable title passes, as in the case of a 
 conveyance to B to the use of C in trust for D. The trust 
 in the last case is executed in D, though he has not the 
 legal estate.-' In Pennsylvania, however, a use executed 
 by the statute is a legal estate to all intents and purposes, 
 as much as if it had been given by the instrument creating 
 the estate without the intervention of a trustee.^ Trusts, 
 properly so called, are uses that our law does not execute 
 as legal estates, because of circumstances that take them out 
 of the ordinary course of legal administration, and place 
 them under a special guardianship of the courts.^ 
 
 § 279. The advantages of trusts in the management, 
 enjoyment, and security of property for the multiplied pur- 
 poses arising in the complicated concerns of life, and princi- 
 pally as it respects the separate estate of the wife, and the 
 settlement of portions upon the children, and the security of 
 creditors, are constantly felt, and they keep increasing in 
 importance as society enlarges and becomes refined.* 
 " Trusts," says Agnew, C. J., in Earp's Appeal,* " supply 
 the means of carrying out family ai'rangements, and of 
 breaking, the force of the blow against the head. They fur- 
 nish a protection against improvidence, indiscretion, inex- 
 perience, imbecility, misfortune, and even vice ; upholding 
 the wishes of parents and friends, and inspiring even the 
 dying with comfort. They are contrary to no principle of 
 justice, wisdom, or morality, and therefore demand our con- 
 fidence and support in proper cases." 
 
 ' 4 Kent' 8 Com. 289-305, ^awm. » Kuhn v. Newman, 2 C. 232, per 
 
 ^ Steaoy v. Rice, 3 C. 80, per Black, Lowrie, J. 
 J. ♦ 4 Kent's Com. 304. 
 
 " 25 P. r. S. 123. 
 
TRUSTS ARE EITHER SIMPLE OR SPECIAL. 247 
 
 CHAPTER XXXI. 
 
 TRUSTS ARE EITHER SIMPLE OR SPECIAL. 
 
 § 280. A trust is where the legal estate is in one person 
 and the equitable interest in another.-^ They are of two 
 kinds, simple and special? In the former the trustee is 
 passive, and performs no duty, and the trust is there purely 
 technical. In the latter he is active, being an agent to exe- 
 cute the donor's will, and the trust is operative. A simple 
 trust gives to the cestui que trust a right to the possession, 
 control and disposal of the property, and the legal estate 
 becomes executed in him, unless when it is necessary to 
 remain in the trustee to preserve the estate for the cestui 
 que trust, or to pass it to others. A special trust, on the 
 other hand, maintains the legal estate in the triistee, to 
 enable him to perform the duties devolved on him by the 
 donor, and gives the cestui que trust only a right in equity to 
 enforce the performance of the trust.^ And where the trust 
 is not what is ordinarily termed active, the legal estate will 
 remain in the trustee so long as it is necessary to preserve the 
 estate itself, as in the case of a trust for a married woman, 
 or one in immediate contemplation of marriage, to protect the 
 estate from her husband, or a trust for a spendthrift son, to 
 protect it from his creditors, or to preserve contingent re- 
 mainders.* As a consequence, it is a general principle that 
 
 ' Chaffees v. Risk, 12 H. 434. 1 Wh. 520 ; Thomas v. Folwell, 2 Id. 
 
 = Vaux V. Park, 7 W. & S. 25 ; Dod- 11; Wright v. Brown, 8 Wr. 224; 
 
 son V. Ball, 10 P. P. S. 496 ; Bar- Fisher v. Taylor, 2 R. 33 ; Holdship 
 
 nett's Appeal, 10 Wr. 398. v. Patterson, 7 W. 547 ; Ashurst v. 
 
 5 Vaux V. Park, 7 W. & S. 25 ; Dod- Given, 5 W. & S. 323 ; Byriok v. 
 
 son V. Ball, 10 P. F. S. 496 ; see also Hetriok, 1 H. 491 ; Brown v. Wil- 
 
 Barnett's Appeal, 10 Wr. 400; Rife liamson, 12 C. 338; Harnett's Ap- 
 
 V. Geyer, 9 P. F. S. 393. peal, 10 Wr. 409 ; Rife v. Geyer, 9 
 
 * Dodson V. Ball, 10 P. F. S. 496, P. F. S. 393 ; Wells v. MoCall, 14 
 
 per Agnew, J., citing Lancaster v. P. F. S. 207 ; Megargee v. Naglee, 
 
 Dolan, 1 R. 247 ; Pullen v. Reinhard, Id. 216. 
 
248 
 
 A VIEW OF THE LAW OF TRUSTS. 
 
 a simple or passive trust cannot continue the legal estate in 
 the trustee, except for a proper and useful purpose, such as 
 the law ■will regard and protect, in which case, for this pur- 
 pose it becomes an active trust, and as soon as the purpose 
 fails, or ceases to exist, the legal estate becomes executed 
 in the cestui que trust. In the former case, equity preserves 
 the trust to give effect to the donor's right of dominion over 
 his property, and in the latter, in favor of public policy, 
 which forbids restraints upon alienation,^ permits it to fall 
 as useless.^ 
 
 § 281. It may be stated, then, in the general, that an 
 active trust — that is, one in which there is an active duty 
 for the trustee to perform, by the terms of the trust — is 
 preserved ; while a passive trust — that is, one in which 
 there is no active duty for the trustee to perform, by the 
 terms of the trust — is not preserved, but is executed by 
 the statute ; unless it be necessary to preserve it for the 
 protection of a married woman from her husband, or feme 
 sole, in immediate contemplation of marriage, from her con- 
 templated husband, or a spendthrift son from his creditors, 
 or to support contingent remainders ; or for some other pro- 
 per and useful purpose, such as the law will regard and pro- 
 tect, when the trust (in order to carry out any of these 
 purposes) becomes an active one, it being a general rule 
 that wherever it is necessary, for the accomplishment of any 
 useful and lawful object of the creator of the trust, that the 
 legal estate should remain in the tnistee, then the trust is 
 an active one.^ All active trusts are trusts not executed by 
 the Statute of Uses, and all trusts not executed by the stat- 
 ute are active trusts ; they are convertible terms. Thus, a 
 devise to a person to pay over the rents and profits to an- 
 other is an active trust, and the legal estate must continue 
 
 » Wells V. MoCall, 14 P. F. S. 212. ^ j^jfe ;,_ Qeyer, 9 P. P. S. 396 ; Bar- 
 
 2 Dodson V. Ball, 10 P. P. S. 496, nett's Appeal, 10 Wr. 399. 
 per Agnew, J. 
 
TRUSTS ARE EITHER SIMPLE OR SPECIAL. 249 
 
 in the trustee, so that he may perform the trust ; because, 
 without having the control of the estate, he could not re- 
 ceive the rents and pay them over as directed; but a devise 
 in trust to permit another to receive the rents and profits is 
 a passive trust, and the legal estate is vested by the Statute 
 of Uses in the person who is to receive the rents and profits ; 
 except where it is necessary to preserve the trust, as to 
 serve some useful purpose of the donor's permitted by the 
 law, for the protection of a married woman, &c.-^ But, as 
 a general rule, an active trust will be sustained, whether it 
 be created for a person sui juris, or to serve any of these 
 purposes.^ And it is to be observed that, if the trust be 
 created for the protection of a married woman, or one in 
 immediate contemplation of marriage, against the husband, 
 though it is expressed to be for her life, and whether it be 
 active or passive, upon the death of the husband before the 
 wife, the trust ceases ; and this because it has served the 
 purpose for which it is presumed to have been created by 
 the donor or testator.^ No trust, however, can endure longer 
 than a life or lives in being, and twenty-one years and nine 
 months thereafter ; the rule against perpetuities forbids it.* 
 
 § 282. "Two opposite principles," says Agnew, J., "un- 
 derlie the doctrine of trusts : private dominion and public 
 policy.^ Each has predominated as the judicial mind has 
 
 ' Pullen V. Rianhard, 1 Wh. 520 ; ^ The right of absolute private do- 
 Lanoaster v. Dolan, 1 E. 231 ; Bacon's minion asserts the right of the pro- 
 Appeal, 7 P. F. S. 511 ; Barnett's prietor to dispose of his property as 
 Appeal, 10 Wr. 399. See Dorrenoe v. he pleases, and tie it up in any man- 
 Soott, 3 Wh. 809; Cochran u. O'Hern, ner and for any length of time he 
 4 W. & S. 95 ; Kay v. Scates, 1 Wr. may think proper. But pubhc policy 
 36; Rush V. Lewis, 9 H. 76 ; Rife v. says no, if the proprietor is left at 
 Geyer, 9 P. F. S. 396. liberty to do this, he may tie up his 
 
 '■^ See Barnett's Appeal, 10 Wr. 399; property forever. He shall he al- 
 
 Rife V. Geyer, 9 P. F. S. 396 ; Earp's lovred to tie it up for a, life, or lives, 
 
 Appeal, 25 P. F. S. 119. in being, and twenty-one years and 
 
 ^ Post, p. 310, et seq. nine months thereafter, and no longer. 
 
 * See 4 Kent's Com. 271. This is called the rule against per- 
 
250 
 
 A VIEW OF THE LAW OF TRUSTS. 
 
 inclined to the one or to the other. The right to control 
 the disposal of property is fundanaental ; and yet this right 
 
 petuilies. Again, the proprietor, act- 
 ing within this rule, adopted a practice 
 of conveying property to one for the 
 use of another ; but public policy in- 
 tervened, by the Statute of Uses (on 
 the side of public policy, too, were 
 the several Statutes of Mortmain, ex- 
 tending from Magna Charta, 9 Henry 
 III. to 9 George II. See 2 Kent's 
 Com. 282), and declared that when- 
 ever he did this, the cestui que use 
 should be seized of the legal estate. 
 Thus came the rule that in such a 
 conveyance the estate of the cestui 
 que use was an executed use. The 
 proprietor then introduced a mode of 
 conveying to A, to the use of B, to 
 the use of C ; and public policy said 
 the use to A is executed and that to 
 B void. But the proprietor, urged 
 by family interests and necessities, 
 persisted, until, finally, public policy 
 yielded, and declared the use to 
 should be deemed a trust for C, and 
 in that aspect sustained. Out of this 
 has grown the system of trusts. Then 
 there grew up other rules, one of them 
 not applicable to trusts alone, that if 
 the proprietor disposed of his land to 
 the grantee, or donee, for life (a free- 
 hold estate), with remainder to his 
 heirs in fee, or in tail, the word heirs 
 was a word of limitation and not of pur- 
 chase, and that the grantee, or donee, 
 took a fee simple or fee tail, as the 
 case might be ; and this gave birth to 
 the rule known as the rule in Shelley's 
 case. This, however, was not a rule 
 established by public policy ; it was 
 simply a legal adjudication, that in 
 such case the word heirs was; a word 
 of limitation ; and then the legal se- 
 quence followed, that the grantee or 
 
 donee taking an estate to himself and 
 his heirs, or the heirs of his body, 
 took a fee simple in the one case, and 
 a fee tail in the other. Following 
 upon this came another rule, viz. : 
 that both estates — that for life and 
 that in remainder — must be of the 
 same nature — both legal or both equi- 
 table — or the rule in Shelley's case did 
 not apply. This, however, was but a 
 necessary legal deduction arising out 
 of the rule ; for, unless both estates 
 were of the same nature, the two 
 could not unite so as to form one 
 estate, and give the entire estate to 
 the tenant for life. There would be 
 an outstanding title or estate, either 
 legal or equitable, for life, or in re- 
 mainder, in another person. In con- 
 nection with this rule, it has been held 
 that if, in the case of a trust, the trust 
 for life was an active one, and that 
 in remainder executed or passive, in 
 the former case the estate of the life 
 tenant was equitable, and in the lat- 
 ter legal, and the rule did not apply, 
 and that a trust to receive and pay 
 over income was an active trust. 
 Then again, in the same connection it 
 was held that, in case of a devise, 
 the rule would apply, though the 
 word " heirs" was not used, provided 
 the testator used an equivalent term 
 by which, from the context of the 
 will, it appeared certain he meant 
 heirs — that those in remainder were 
 to take as heirs to the tenant for life. 
 But the words "child," "children," 
 &c., were held to be words of pur- 
 chase, though they might be con- 
 strued to mean heirs, if from the 
 context of the will it was apparent 
 the testator meant to use them in that 
 
TRUSTS AEE EITHER SIMPLE OR SPECIAL. 251 
 
 must be regulated so as not to conflict with high public 
 interests."^ Again, he says, "Since the return to the for- 
 mer doctrine of trusts, in Barnett's Appeal, 10 Wr. 392, it 
 has been our endeavor to maintain trusts upon their true 
 foundation, as a means of preserving the dominion of the 
 donor over his own property, for his reasonable purposes, 
 unless where a clear public policy strikes down the trust 
 as no longer useful, or as an unnecessary clog upon the 
 title." ..." The right of property is one protected by 
 the bill of rights ; and the right to regulate its use within 
 reasonable limits is a just corollary from the right itself" ^ 
 In Fisher v. Taylor,^ it is said that the intention of the donor 
 being ascertained, the only question is, whether his dispo- 
 sition is contrary to law. 
 
 * 
 
 sense. But primd facie they were in this State, ^rimayacig, the testator 
 
 words of purchase. Now, it was out meant "heirs ;'' and so, in such cases, 
 
 of this state of the law that the con- if the trust for life were passive, and 
 
 test arose between private dominion the remainder substantially to heirs, 
 
 and public policy in Kuhn v. New- the entire trust was stricken down, 
 
 man, and continued in a few subse- and the tenant for life would take a 
 
 quentcases. In favor of public policy, fee. Thus the "judicial mind" de- 
 
 which forbids (or is opposed to, for it cided, if inclined towards the public 
 
 does not altogether forbid) restraints policy in question ; and vice versa, if 
 
 upon alienation, it was held that a inclined towards private dominion (see 
 
 trust to receive and pay over income the cases post, " Rule in Shelley's 
 
 was a passive trust, and the inclina- Case"). 
 
 tion seemed to be to strike down ' Dodson v. Ball, 10 P. F. S. 496. 
 
 trusts for life and declare them ese- ' Earp's Appeal, 25 P. F. S. 122. 
 
 outed ; and then it was also said that ' 2 R. 36. 
 by the words "child," "children," &c., 
 
252 A VIEW OF THE LAW OF TRUSTS. 
 
 CHAPTER XXXII. 
 
 THE KULE IN SHELLEY's CASE. 
 
 § 283. The rule in Shelley's case is a settled rule of pro- 
 perty in Pennsylvania, and closely interwoven with her land 
 titles.^ It is so constantly brought into requisition in 
 determining the character of trust estates that it will be 
 necessary now to consider it. The rule existed long before 
 the case that gave it its name. It is thus stated by Lord 
 Coke : " When the ancestor, by any gift or conveyance, 
 takes an estate of freehold, and in the same gift or convey- 
 ance an estate is limited, either mediately or immediately, 
 to his heirs, in fee or in tail, always in such cases heirs are 
 words of limitation of the estate, and not words of pur- 
 chase."^ The rule has been somewhat differently stated by 
 other writers, but in every statement of it, the essentials 
 are substantially the same. 
 
 § 284. The effect of the rule in Shelley's case is that a 
 gift or conveyance to one for life, with remainder to his 
 heirs, creates a fee simple ; and a gift or conveyance to one 
 for life, with remainder to the heirs genei'al or special of his 
 body, creates a fee tail general or special. The Taw so treats it, 
 because, in either case, it is substantially so. It sets aside 
 the apparent intention to create two estates, and declares 
 them one.^ But the rule applies only where both estates, the 
 freehold and the remainder, are of the same qualiti/. That is, 
 both must be legal or both equitable, otherwise they cannot 
 unite as an estate of inheritance in the first taker.* Two 
 
 1 George v. Morgan, 4 II. 104 ; Hill- » Price v. Taylor, 4 C. 102. See 
 man v. Bouslaugh, I H. 351 ; Auman Bonnett v. King, 34 Leg. Int. 249. 
 
 V. Auman, 9 H. 343. ■• Steacy v. Rice, 3 C. 80, per Black, 
 
 2 1 Coke 104, a. ; Guthrie's Appeal, J. ; Kay v. Scates, 1 Wr. 35; Baoon'a 
 1 Wr. 12. Appeal, 7 P. P. S. 512. 
 
THE RULE IN SHELLEY's CASE. 253 
 
 things must, therefore, concur or the rule will not apply. 
 First, the remainder-man must take as heir to the life-tenant 
 (by words of limitation and not of purchase), and, second, the 
 two estates, freehold and remainder, must be of the same 
 quality — both legal or both equitable. It is, consequently, of 
 the greatest importance in all cases to ascertain whether the 
 remainder-man takes as heir or as purchaser, and what the 
 character of each of the estates; whether the one is legal and 
 the other equitable, or whether both are legal or both equi- 
 table ; as upon the solution of these questions depends that 
 other capital one, whether the first taker has a fee or a life 
 estate only. Some of the cases, therefore, will be found to 
 depend upon whether the trust as to the freehold estate is an 
 active or passive one, or, if otherwise passive, whether it be 
 for the protection of a married woman, or one in immediate 
 contemplation of maniage, or for the protection of a spend- 
 thrift child, or to support contingent remainders, or to serve 
 some other useful and lawful purpose ; while others, as inti- 
 mated, will depend upon the character in which the remain- 
 der-man takes, whether as heir or as purchaser ; and then, 
 again, whether the two estates be both legal or both equi- 
 table, or the one legal and the other equitable. 
 
 § 285. The inheritance in remainder must be given to the 
 heirs of the grantee or devisee of the estate for life, as heirs, 
 or the rule has no applicability to the case. It must be to 
 the heirs or heirs of the body of him who takes the particu- 
 lar estate of freehold by that description and in that char- 
 acter, or to his heir or the heir of his body, in the singular 
 number, but as a nomen coUectivum in the sense of heirs or 
 heirs of the body.^ "It is therefore always a precedent 
 question," says Mr. Justice Strong in Guthrie's Appeal, " in 
 any case to which it is supposed the rule is applicable, 
 whether the limitation of the remainder is made to the heirs 
 
 ^ Guthrie's Appeal, 1 Wr. 12, per Strong, J. ; Chew's Appeal, 1 Wr. 23. 
 
254 A VIEW OF THE LAW OF TRUSTS. 
 
 in fee or in tail, as such; and in solving this question, tlie 
 rule itself renders no assistance. It is silent until the 
 intention of the grantor or devisor is ascertained. But if 
 that intention is found to be that the remainder-men are to 
 take as heirs of the grantee or devisee of the particular free- 
 hold, instead of becoming themselves the root of a new suc- 
 cession, the rule is applied, though it may defeat a manifest 
 intention that the first taker should have but an estate for 
 life.'^ It is very carefully to be noted that in searching for 
 the intention of the donor or testator, the inquiry is not 
 whether the remainder-men are the persons who would have 
 been heirs had the fee been limited directly to the ancestor. 
 The thing to be sought for is not the persons who are di- 
 rected to take the remainder, but the character in which the 
 donor intended they should take. In the very many cases 
 in which the question has arisen whether the rule was ap- 
 plicable, the difficulty has been in determining whether the 
 intention was that the remainder-men should take as heirs 
 of the first taker, or originally as the stock of a new inherit- 
 ance ; the effort in almost aU of them has been to show that 
 
 ' "The decisions in all the cases Black, C. J., in Auman v. Auman, 9 
 show,'' says Agnew, J., in Dodson v. II. 348, "is to control such intentions, 
 Ball, 10 P. F. S. 500, " the undoubted and (in all cases properly within it) 
 tendency of the judicial mind in this to substitute a totally different opera- 
 State to follow the true intention of tion from that designed by the donor." 
 the donor, and whenever he means to And he concludes, in reference to the 
 limit an estate to the heirs of the life- case before the Court, "Although, 
 tenant, no matter how his intent is therefore, the grantor in the present 
 expressed, an estate of inheritance case may have intended to give the 
 will vest in the tenant for life ; but grantee a life estate only, yet if he 
 when he intends his bounty to vest in did at the same time, and by the same 
 certain persons, though they may be conveyance, give an estate in the same 
 the same as the heirs at law, the life lands to their heirs, we must read the 
 estate will not be enlarged;" never- deed as if it were an ordinary convey- 
 theless, the rule in Shelley's case must anoe of the fee to the first takers, 
 be adhered to, even when it comes in striking out all the words which de- 
 conflict with the evident intention of note his wish to make it less than a 
 the grantor or donor. "The very fee." 
 purpose and object of the rule," says 
 
THE ETJLE IN SHELLEy's CASE. 255 
 
 the words ' heirs' or ' heirs of. his body' were not used in 
 their technical sense, as expressive of the nature and extent 
 of the devise, and its descent, but as descriptio personarim, 
 designatory of individuals. To these words the law attaches 
 a definite meaning. They are words of limitation and not 
 of purchase. When used by a testator, the law presumes 
 that he used them in their legal sense ; that he intended, 
 not individuals, but quantity of estate and descent. When- 
 ever they are employed, therefore, the burden is thrown 
 upon him who contends that they are words of purchase, to 
 rebut the presumption, and to show that they were used in 
 the particular grant or devise, to designate persons." 
 
 § 286. If, however, the intention of the testator requires 
 it, the words " heirs" and " heirs of the body" must be di- 
 vested of their technical meaning as words of limitation, and 
 converted into words of purchase, as where the remainder 
 is distributive, with superadded words of limitation, as, for 
 example, where the devise is to tenant for life, remainder to 
 his heirs, or heirs of his body, their heirs, executors, &c., as 
 tenants in common.-^ "Undoubtedly," says Mr. Justice 
 Strong again, in Guthrie's Appeal, " the word ' heirs' may be 
 shown by the context to have been used in the sense of 
 sons, daughters, children, &c., and when it is so used the 
 rule in Shelley's case is inapplicable. But the cases abun- 
 dantly show that the intent not to use the words in their 
 legal sense must be unequivocal, that it must appear so 
 plainly that no one can misunderstand it." 
 
 § 287. In Auman v. Auman,^ there was a conveyance 
 (by the words " demise, lease and to farm let") of land to 
 A and his wife, for and during their natural lives, without 
 impeachment of waste, at the yearly rent during their lives, 
 
 ' Chew's Ap., 1 Wr. 27 ; Guthrie's ' 9 H. 343. 
 Ap., Id. 14 ; CriswelPs Ap., 5 Wr. 290. 
 
256 A VIEW OF THE LAW OF TRUSTS. 
 
 or of the survh''or, of one peppercorn, and then a grant of 
 the premises after the decease of A and his wife, to "the 
 lawful heirs of them," the said A and his wife, "in fee 
 simple ;" and it was held that A and his wife took a joint 
 estate in fee simple. That the conveyance to them during 
 their joint lives, or the life of the survivor, though by the 
 words "demise," &c., and without impeachment of waste, 
 and reserving the yearly rent of one peppercorn, gave to 
 them a freehold estate, not diminished by the reservation of 
 a rent, or by the clause " without impeachment of waste ;" 
 and as to the remainder, the word "heirs," in the term 
 " heirs of them," was a word of limitation, and not of pur- 
 chase. The term "heirs of them" was equivalent to "their 
 heirs," and a joint freehold estate to a man and his wife was 
 within the rule in Shelley's case. And in Criswell's AppeaP 
 there was a devise of land to a son '•' during his natural life 
 and that of his present wife," and after their decease, the 
 land to " descend to their heirs jointly, and their heirs and 
 assigns forever, or to such of them as may be then living ;" 
 and it was held that the son and his wife took a joint estate 
 in fee simple. That the presumption was that the testator 
 used the word " heirs" in its ordinary legal sense, that is, 
 as a word of limitation, and the use of the alternative 
 phrase " or to such of them as may be then living," which 
 might seem to indicate that the testator meant " children" 
 by the word " heirs," was not sufficient to overcome the 
 presumption. Moreover, in ascertaining whether the tes- 
 tator designed the remainder-men to take through the 
 tenants for life, or directly from himself, it was of some 
 weight that he declared that after the death of the life- 
 tenants, the land should " descend" to their heirs. 
 
 § 288. Moody v. SnelP was a case in which the words "law- 
 ful heirs" were, from the context of the will, interpreted to 
 
 1 5 Wr. 288. '^ 33 Leg. Int. 281. 
 
THE RULE IN SHELLEY's CASE. 257 
 
 mean "Imvful issue." A testa.tor made a devise to liis son 
 Lockvvood, and to " his lawful heirs" with a devise over in 
 the following words : " But in case the said Lockwood 
 should die without any lawful heirs, then the property to 
 revert back, and be equally divided among my children who 
 shall survive him, except the one equal third part of said 
 property, which shall belong to his widow as long as she 
 shall continue as such." It was held that this gave to the 
 son an estate tail ; and this because, although the principal 
 devise would have given him a fee simple, yet the devise 
 over to the testatoi^'s children, in case the son should die 
 without lawful heirs, was conclusive that the testator by 
 these words meant lineal descendants, or, in other words. 
 " lawful issue," as the children of the testator would themselves 
 be the son's laivful heirs in case he died leaving no issue ; 
 so that he could, not die without lawful heirs, if they survived 
 him. It would be absurd to suppose the testator meant to 
 say that in case his son should die without lawful hei'rs, 
 then over to his lawful heirs, to wit, his brothers and sis- 
 ters. The obvious meaning, therefore, was that if the son 
 should die without leaving lawful issue, then over to his 
 brothers and sisters ; and if the testator used the term 
 " lawful heirs" in the sense of " lawful issue" in the devise 
 over, he must have done so in the principal devise, as both 
 were descriptive of the same objects. And in Covert v. 
 Robinson,^ a testator devised real estate to his daughters 
 equally, but if his daughter N. K. " should be called away 
 by death without any lawful heir," then her share to be 
 equally divided between his other daughters ; and it was 
 held that N. K. took an estate tail, the Court, Strong, J., 
 saying, " Manifestly the words in the will, ' but if my 
 daughter N. should be called away by death without any 
 lawful heir,' mean if she should die without issue, for the 
 devise over is to her sisters, and the sisters are not to take 
 
 ' 10 Wr. 274. 
 17 
 
258 A VIEW OF THE LAW OF TRUSTS. 
 
 Avhile any issue of the first taker is in existence. The 
 limitation over is, therefore, after an indefinite failure of 
 issue." 
 
 § 289. The words son, children, &c., in their natural 
 import are words of purchase, and not of limitation ; they 
 are properly descriptive of a particular class or genera- 
 tion of issue. They point, not to heritable succession, but 
 individual acquisition. Nevertheless they may be used by 
 a testator in the sense of " heirs of the body." " But," we 
 quote again from Mr. Justice Strong, in Guthrie's Appeal, 
 " it is worthy of notice that among the eighty-two cases 
 contained in the tables of Mr. Hayes,^ there is not one in 
 which a devise of the remainder to children was held within 
 the scope of the rule in Shelley's case, and to vest an estate 
 in tail in the ancestor, to whom a freehold for life was 
 limited by the same will or conveyance. In every case in 
 which an estate tail was held to have thus vested, the 
 author of the gift had made use of the words, 'heirs of the 
 body' or ' issue,' which latter is a word of doubtful meaning, 
 though generally a word of limitation in a will ; and, if he 
 used the word ' son,' he used also in explanation of it, and 
 as its synonym, the word 'issue.' In most of the cases 
 where the word ' son' was used, the tenancy in tail of the 
 ancestor was implied, not from that word, but from a devise 
 over •' on failure of issue! It is not denied that the word 
 ' children' may be used by a testator as a nomen coUectivum, 
 signifying ' heirs of the body,' but I have found no case in 
 which it has been held to have been so used, unless the 
 testator has also employed the words ' heirs of the body' or 
 ' issue,' as descriptive of the same objects. Nothing less 
 appears to be sufiScient to repel the presiimption that the 
 testator did not intend a limitation by the use of this word 
 of purchase." 
 
 ' Treatise on Estate Tail. 
 
THE RULE IN SHELLEy's CASE. 259 
 
 § 290. Where the remainder is to children distrihutively, 
 as tenants in common, such a taking distributively as ten- 
 ants in common is altogether inconsistent with the children 
 taking as heirs in tail of the devisee of the life estate.^ And 
 still stronger is the case where there are superadded words 
 of limitation, as, to them, as tenants in common, their heirs, 
 executors, &c.^ The rules of construction freely permit, 
 however, the use of the words " heirs of the body" or " issue" 
 in the limited sense of children, and of the word " children," 
 in the comprehensive sense of the words "heirs of the body," 
 these rules, or rather the fundamental principle of legal in- 
 terpretation, requiring only a clear explanation to justify a 
 departure from the ordinary meaning, imposing on those 
 who would translate the term the onus of producing an ex- 
 press warrant under the hand of the author of the gift.^ 
 
 § 291. Such is the rule, at least, in reference to wiils. 
 " A devisor," says Gibson, C. J.,* " who uses words of limita- 
 tion in an improper sense, may so explain the meaning of 
 them by other words in the context as to exclude his devise 
 from the rule ; for it operates only on the intention when it 
 
 ' Guthrie's Appeal, 1 Wr. 14. See with superadded words of limitation ; 
 
 Osborne v. Soley, 2 Weekly Notes 533. and it was held that the first taker 
 
 ^ In Chew's Appeal, 1 Wr. 2.-!, there took but a life estate; the Court 
 was a devise to the testator's brother (Strong, J.) remarking "that in such 
 during his life, " and after his decease, a case the remainder-men take as pur- 
 er in the event of his dying before chasers, admits of no doubt. Even if 
 me, to the several children of my said the gift had been to them under the 
 brother, their heirs, executors, admin- description of the technical words of 
 istrators and assigns, share and share limitation, ' heirs' or ' heirs of the 
 alike, as tenants in common. Should body,' instead of the word of pur- 
 any of the children of my brother be chase, 'children,' they must still 
 deceased, leaving children, their chil- have taken as purchasers and not as 
 dren so left shall stand in the place heirs." See ante, Rule in Shelley's 
 of and representtheir parents.'' Here Case, Guthrie's Appeal, 
 the remainder is to the first taker's ' Guthrie's Appeal, suj)ra, quoting 
 " children," or to his children's chil- Hayes on Estates Tail 3.5. 
 dren in the alternative ; to them as * Hileman v. Bouslaugh, 1 H. 351 ; 
 tenants in common, and it is to them and see George v. Morgan, 4 H. 104. 
 
260 A VIEW OF THE LAW OF TRUSTS. 
 
 has been ascertained, and not on the meaning of the words 
 used to express it. The ascertainment is left to the ordinary 
 rules of construction peculiar to wills; but when the intention 
 thus ascertained is found to be within the rule, there is but 
 one way, it admits not of exceptions. It is to the applica- 
 tion of those ordinary rules, sometimes controlling the mean- 
 ing on weak and inconclusive grounds, and not on the nature 
 of the particular rule, which is, in truth, not a rule of construc- 
 tion, that the discrepance of the decisions is attributable. The 
 question on a will is not whether the testator intended that 
 the rule should not operate, for that is not subject to his 
 power, but whether he used the words ' heirs of the body' 
 as synonymous Avith the word ' children,' or its proper equiv- 
 alent. By not adverting to this, the rule has sometimes 
 been thought to be a flexible instead of an unbending one." 
 
 § 292. But technical words of limitation, such as "heirs 
 of the body," &c., in an executed conveyance of the legal 
 estate by a common law deed, cannot be qualified by im- 
 plication, or the context, or by anything whatever.^ As to 
 superadded words of limitation engrafted on words of pro- 
 creation, it is well settled that such words, either in a will 
 or deed, are inoperative, and will not turn the words of pro- 
 creation into words of purchase ; unless the superadded 
 words denote a different species of heirs from that described 
 by the first words, thus showing an intent to break the 
 wdinary line of descent from the first taker; for ex- 
 ample, if the words be "heirs," or "heirs of the body," 
 or " issue of the body," words of inheritance engrafted on 
 them, if not inconsistent with the nature of the descent 
 pointed out by the first words, will not convert them 
 into words of purchase." A devise to the lawful issue of 
 
 ' Hileiiian v. Bouslaugh, 1 II. 352. man v. Bouslaiigh, 1 H. 353 ; Cris- 
 ^ Paxson V. Lafferts, 3 R. 74 ; well Appeal, 5 Wr. 22S. 
 George v. Morgan, 4 H. 107 ; Hile- 
 
THE RULE IN SHELLEY's CASE. 261 
 
 the first taker is prima facie a limitation to the heirs of 
 the body of the devisee, and therefore vests a fee tail ; and 
 this is the case even where the devise to the first taker is 
 expressly for life ; and it requires more than mere words of 
 distribution to limit this prima facie effect of the phrase. 
 The words "in equal shares," without something else to 
 indicate the' intention of a testator, wUl not reduce the in- 
 heritance to a mere life estate. Even the words "as 
 tenants in common" will not of themselves limit the entail.' ■ 
 The question is, however, really one of intention, to be 
 drawn from the entire context of the will.^ / 
 
 § 293. In Ogden's Appeal,^ a testator gave portions of 
 the undisposed of residue of his personal estate to trustees in 
 trust to hold for the sole use and benefit of his three 
 daughters, in equal parts, during their lives respectively, 
 and to pay over to them the interest, &c. ; the receipts of 
 the daughters, whether sole or married, to be a sufficient 
 discharge. And he also gave portions of his undisposed of 
 real estate to the trustees in trust, to hold for the sole use 
 and benefit of his three daughters in severalty, with power, 
 with the consent of the daughters respectively, to let for a 
 term of years, or on ground rent forever, " but may be re- 
 deemed at any time after the decease of the daughter to 
 whom such part may have been allotted, but shall not be 
 redeemed before her decease." The rents to be paid to the 
 trustees, in trust to pay them only to the daughters respec- 
 tively, whether they be sole or married, their receipts only 
 to be a discharge ; and immediately after the decease of 
 either of the daughters, to convey her rights and interests 
 to such person or persons as she by her last will and testa- 
 ment may direct, and in default of appointment, then to her 
 
 ' Ogden's Appeal, 20 P. F. S. 501. Jacob T. Williams, 34 Lep:. Int. 257, 
 ^ Physiok's Appeal, 14 Wr. 136. where this case is commented upon 
 
 ' 20 P. F. S. 501. See Appeal of and approved. 
 
262 A VIEW OF THE LAW OF TRUSTS. 
 
 lawful issue, in equal shares, and in default of such issue, 
 then to her brothers and sisters, in equal shares, and to the 
 lawful issue of the testator's children who may then be de- 
 ceased; and to avoid all doubts, he declared that the 
 daughters should have full power and authority, whether 
 sole or married, to dispose of by will, in such manner as 
 they may think proper, all their shares, real and personal, 
 vested in the trustees. Neither of the daughters was mar- 
 ried, or in immediate contemplation of marriage ; and it was 
 held, first, that the trust was one for coverture, to preserve 
 the estate of the daughters against the authority and title 
 of their husbands, and as neither of them was married nor 
 in contemplation of marriage, the trust never took effect, 
 and the active duties of the trustees, having sole reference 
 to this supposed trust, fell with it ; and second, there being 
 no express limitation of the real estate to his daughters for 
 life, and the remainder being to their lawful issue, though 
 followed by the words " in equal shares," ga-\'e to the 
 daughters an estate of inheritance in fee tail in the real 
 estate ; and that they took an absolute interest in the per- 
 sonal estate. The court say : " The clause as to the lawful 
 issue of the daughters, it is true, restricts the fee, but does 
 not restrict the interest to a life estate. It is well settled 
 that a devise to the lawful issue of the first taker is prima 
 facie a limitation to the heirs of the body of the devisee, 
 and therefore vests a fee tail ; and this is the case even 
 where the devise to the first taker is expressly for life. . . . 
 It requires more than mere words of distribution to limit 
 this frima facie effect of the phrase. The words ' in equal 
 shares,' without something else to indicate the intention of 
 the testator, will not reduce the inheritance to a mere life 
 estate. Even the words ' as tenants in common' will not 
 of themselves limit the entail. Nor does the devise over 
 to the brothers and sisters in default of issue of the 
 daughters restrict their interest to an estate for life ; for 
 
THE RULE IN SHELLEY's CASE. 263 
 
 the failure of issue on which the devise over rests is in- 
 definite, and the devise over is therefore uncertain in point 
 of time, and entirely contingent. The only expression 
 in the will that gives any color to the notion of a life estate 
 in the daughters is that which provides for a redemption 
 of the estates let for a term of years, or on ground rent for- 
 ever, ' at any time after the decease of the daughters to 
 whom such part may have been allotted, but shall not be 
 redeemed before her death.' In a doubtful case, the infer- 
 ence from this provision might turn the scale, but there is 
 no doubt arising in other parts of this will, while the pro- 
 vision itself can be fairly attributed to the intent of the 
 testator to strengthen the trust for coverture he supposed 
 he was creating, and thereby to prevent the redemption- 
 money from passing into the control of the husbands of his 
 daughters, as the law then stood, the will having been 
 made before the passage of the Married Women's Act of 
 1848. And as to the personalty, the court say that at first 
 blush the will did not seem to give the daughters an abso- 
 lute interest, as the trust was to hold their parts ' during 
 their lives respectively, and for no other use or purpose 
 whatever; and will pay over to them respectively the 
 interest, dividends, and profits on their several shares as 
 the same becomes due and is received ; and the receipts of 
 my daughters respectively, whether they be sole or mar- 
 ried, shall be a sufficient discharge for the same.' But a 
 closer examination of all parts of the will discloses a difler- 
 ent intention." They then observe " that the intent of the 
 testator in this item of his will is similar to that in the item 
 relating to the real estate, to wit, to provide a trust for 
 coverture to preserve the estates of his daughters. Hence, 
 when he says, ' and for no other purpose whatever,'^ he 
 evidently refers to the sole and separate character of the 
 use, and not to the extent of it as contained in the Avords 
 
 ^ The statement of the case does not disclose these words. 
 
264 A VIEW OF THE LAW OP TRUSTS. 
 
 ' during their lives respectively.' " And the court come to 
 the conclusion, from this and the general provisions of the 
 will (which are thus summed up) , that " therefore the per- 
 sonal estate in question being itself only an undisposed of 
 residuum, the intent of the testator to make his children 
 equal being manifest, the mention of the life estate being 
 only for a special purpose, there being no bequest over, the 
 disposition being analogous to most of the real estate, and 
 finally, the full and absolute power to dispose by will of all 
 the shares vested in the trustees, leave in our minds no 
 doubts of the intention of the testator to vest these three 
 shares in his three daughters absolutely." 
 
 § 294. In Physick's Appeal,^ where the remainder after a 
 life estate was ordered to be equally divided among the 
 "right heirs" of the tenant for life, "to them, their heirs, 
 executors, administrators and assigns forever," Strong, J., 
 says : " "Words of distributive modification, with words of 
 limitation added, are held to be sufficient in England to 
 overcome the primary meaning of the word ' heirs,' and con- 
 vert it into a word of purchase, descriptive of individuals. 
 Why ? Because each shows an intent that the remainder- 
 man described as heir shall not take as such. As heir he 
 must take either a fee simple or fee tail, in solido, and in 
 severalty. He cannot take as tenant in common with others. 
 There can be but one heir at law. And a superadded limit- 
 ation to his heirs can mean nothing if he does not take as a 
 new root of succession. The first direction is repugnant to 
 the technical meaning of the word heirs ; and though, stand- 
 ing alone, it must give way, yet when fortified by a second 
 limitation, the intent to use the technical word as descriptive 
 of persons is thought to be sufficiently apparent. But in 
 this State the principal reason for the English rule is want- 
 ing, except when the remainder is limited to ' heirs of the 
 
 ' 14 Wr. 13G. 
 
THE KULE IN SHELLEY's CASE. 265 
 
 body,' and when the descent is therefore to the heir at 
 common law in severalty. After all, it is a question of in- 
 tention. How did the donor, or testator, intend the re- 
 mainder-men to take ? If as heirs, in this State they take 
 distributively, and, therefore, a direction that a remainder 
 shall be divided among right heirs is not repugnant to an 
 intent that they shall take by descent." In this case the 
 testator by his will gave real and personal property to his 
 nephew, absolutely, " to hold to him, his executors, admin- 
 istrators and assigns forever." Subsequently, by a codicil, 
 reciting the previous gift in fee simple, he revoked so much 
 as gave the property in fee, and instead thereof, devised 
 and bequeathed it to trustees, for the use of his nephew 
 during his natural life, with a power of appointment by will 
 to such child or children, grandchild or grandchildren, as his 
 nephew might devise and bequeath the same, and in default 
 of appointment, ordered the remainder to be equally divided 
 among the right heirs of his nephew, " to them, their heirs, 
 executors, administrators and assigns forever." It was held 
 to be plainly within the rule in SheUey's case ; and that the 
 nephew took absolutely, and in fee. The intent to give the 
 nephew but an estate for life was, confessedly, beyond 
 doubt. But it was also admitted that this plain intention 
 must fail, if there was also an intention that the remainder- 
 men should take by descent as heirs of the devisee of the 
 particular estate. For in that case the rule in Shelley's 
 case would apply, and enlarge the -estate of the first taker 
 despite the intent of the donor. In every such case the 
 rule inexorably determines that the ancestor shall have an 
 estate in fee. From the use of the technical word of limit- 
 ation, "right heirs," a strong presumption, not easily over- 
 come, arose that the remainder-men should take by descent ; 
 and, upon these principles, the court, finding nothing in the 
 will to show that the testator did not use those words of 
 limitation in their proper sense, except the superadded 
 
266 A VIEW OF THE LAW OF TRUSTS. 
 
 words of limitation, declared that those alone had always 
 been held insufficient, and, therefore, the nephew took a 
 fee. 
 
 § 295. Nice's AppeaP was a very similar case. A testatrix 
 devised the residue of her estate, real and personal, to trus- 
 tees, in trust, to permit and suffer her daughter, Amanda 
 James, a married woman, notwithstanding her coverture, or 
 whether she were covert or sole, to receive and collect the 
 income for her own separate use and benefit, without being 
 subject to the control or liable for the payment of the debts 
 of her present or any future husband ; and immediately 
 after her decease, to grant and assign said residue of her 
 estate to such person or persons " as should be the right 
 heirs of her said daughter, their heirs, executors, adminis- 
 trators and assigns forever, in such proportions as they 
 would be entitled to agreeably to the laws of Pennsylvania, in 
 case her said daughter had died intestate, seized and possessed 
 of the same in her own right." The husband having died, 
 it was held that the daughter had an estate in fee simple, 
 and the Court, per Strong, J., observed that " the disquali- 
 fication of coverture having ceased with the death of her 
 husband, and the present estate, as well as that in remain- 
 der, being now of the same nature, and both estates created 
 by the same instrument, it is manifest that Mrs. James has 
 an estate in fee simple, unless the will clearly shows that in 
 the gift of the remainder, the testatrix used the words 
 ' right heirs' in an abnormal sense ; not as descriptive of 
 the character in which she designed the remainder-men to 
 take, but as designating the persons who should be the 
 objects of her bounty. Every presumption is that she iu- 
 tended to use the words ' right heirs' in their technical 
 sense, as words of limitation, and there is nothing in the will 
 to rebut the presumption, except the fact that the gift of the 
 
 1 14 Wr. 143. 
 
THE RULE IN SHELLEY's, CASE. 267 
 
 remainder was to 'right heirs,' their heirs, executors, &c. 
 But superadded words of limitation have never of themselves 
 been held sufficient to convert the words of limitation to 
 which they are added into words of purchase. The most 
 that can be said of them is that they are superfluous. They 
 are not inconsistent. Words of distributive modification 
 may be inconsistent with a gift to heirs as such, and hence 
 it has sometimes been held that a gift to ' heirs of the body,' 
 or even ' heirs,' in England (where the oldest son takes in 
 exclusion of his brothers and sisters), if followed by added 
 words of limitation, and by words of distributive modifica- 
 tion, may amount to no more than a gift to children. To- 
 gether, they overcome the presumption that technical terms 
 are used in a technical sense ; alone, neither of them is suffi- 
 cient. It is true this will contains words of distributive 
 modification of the remainder given to the right heirs of Mrs. 
 James, but they are not inconsistent with the presumed in- 
 tent of the testatrix, that the remainder-men should take as 
 right heirs. They would be in England, and they would be 
 with us in a case where a remainder is limited to heirs of 
 the body ; for in such cases distribution by descent is impos- 
 sible. But with us, a gift to heirs generally in fee contem- 
 plates descent according to the intestate laws. Hence a 
 direction that it shall so descend is in perfect harmony with 
 the technical meaning of the words of the gift, and, conse- 
 quently, is no reason for presuming that the donor employed 
 the technical language in any other than its ordinary and 
 legitimate sense." 
 
 § 296. It is undoubtedly the settled rule in Pennsylvania 
 that the true intent of the donor will be followed, if not 
 contrary to law, and whenever he means to limit an estate to 
 the heirs of the life-tenant, no matter how his intent is ex- 
 pressed, an estate of inheritance will vest in the tenant for 
 life ; but where he intends the estate to vest in certain per- 
 
268 A VIEW OF THE LAW OP TRUSTS. 
 
 sons, though they may be the same as the heirs at law, the 
 life estate will not be enlarged.^ Whenever the terms of 
 the limitation can be fairly and justly interpreted to mean 
 "heirs" or "heirs of the body," an estate of inheritance 
 will be presumed to have been intended by the testator.^ 
 It has also been held that ant/ form of words sufficient to 
 show that the remainder is to go to those whom ilie law 
 points out as the general or lineal heirs of the first taker will 
 enlarge the estate for life of the first taker to an estate in 
 fee or estate tail by implication.^ And in the case of a gift 
 of an estate for life, with general power of appointment, and 
 on failure to ap[)oint, then to the heirs of the life-tenant, or 
 by words which mean the same thing, if the hody of persons 
 thus described constitute in fact the heirs of the life-tenant, 
 and represent only a line of descent, and not specially- 
 designated persons, the devisee for life becomes the stock 
 or source of the descent, and he takes the inheritance, upon 
 the presumption that this was the actual intent of the tes- 
 tator.* And it is, says Mr. Justice Agnew,^ " by analogy to 
 the rale in Shelley's case, or perhaps it is better to say from 
 necessity, that he takes the inheritance." Then, as showing 
 how it is that the life-tenant so takes the inheritance from 
 necessity, he adds : " The remainder being limited to his 
 heirs, he necessarily becomes the sti7-ps or root of a line of 
 unknown persons, not individuated by the will, yet depend- 
 ent on him as its source. They spring into recognition only 
 at his death, for nemo est haires viventis. In other words^ 
 they come at the bidding of the law, and not of the testator, 
 who merely adopts them as the law turns them up in the 
 furrow of descent. He who might have appeared to be the 
 heir at the date of the will, by marriage, birth or death may 
 
 ' Dodson V. Ball, 10 P. F. S. 500. Appeal, 20 P. P. S. 342; see post, 
 
 ■^ Dodson V. Ball, supra; Yarnall's p. 273. 
 
 Appeal, 20 P. P. S. 342. " Yarnall's Appeal, supra. 
 
 " Potts' Appeal, 6 C. 170 ; Yarnall's " Yarnall's Appeal, supra. 
 
THE EULE IN SHELLEy's CASE. 269 
 
 not be heir when the will takes effect. In the A^ery logic of 
 succession, the life estate, therefore, incorporates with the 
 inheritance, because of the failure of the testator to desig- 
 nate any other than the legal line of descent. In short, he 
 calls the deAasee a tenant for life, yet vests the fee in him. 
 This being the intent of the testator, it is immaterial in the 
 will whether he describes the line of descent by a word of 
 art or by a periphrasis, meaning the same thing."^ And 
 to explain why the expression "% analogy to the rule in 
 Shelley's case" is used, he points out the distinction between 
 the rule in Shelley's case, strictly so called, in which the re- 
 mainder is to " heirs" or " heirs of the body," in these pre- 
 cise words, and the cases where equivalent terms, such as 
 "issue," "children," "sons" and "daughters," are used in- 
 stead, which do not come strictly within the rule. The 
 Court, therefore, in reference to these latter, use the expres- 
 sion, "Sy analogy to the rule in Shelley's case." InDodson 
 V. Ball/ a single woman, having no marriage in view, con- 
 veyed all her real estate to trustees, in trust to permit her 
 to occupy, manage, let and demise the same, ,and take and 
 receive the rents, issues and profits for her sole and separate 
 use, for her life, without any hindrance of any husband she 
 may have, she paying all taxes on the premises, and for all 
 necessary and proper repairs ; and upon her decease, then 
 to grant and convey the premises to such person or persons 
 as she should by her will limit and appoint, and in default 
 of such appointment, then to convey the premises to such 
 person or persons as would be entitled to the same if she 
 had died intestate, seized of the premises in fee simple, with 
 power to the trustees at any time, should they think it most 
 advisable for the benefit and advantage of the life-tenant, to 
 seU the premises, or any part thereof, either at public or 
 
 ' See Appeal of Jacob T. Williams, quoted, and approved by the same 
 34 Leg. Int. 257, where this case is learned judge. 
 
 = 10 P. F. S. 492. 
 
270 A VIEW OF THE LAW OF TEUSTS. 
 
 private sale, and the money arising therefrom to re-invest in 
 other property, real or personal, in trust for the same uses ; 
 provided, that the several trusts should not be changed or 
 affected without the consent of the trustees ; vfith power to 
 the cestui que trust to appoint other trustees in case of a 
 vacancy. The cestui que trust afterwards married, the hus- 
 band died, and she, by bill, claimed the premises as her 
 absolute estate, and prayed a conveyance. It was held that 
 the trust was executed, and she entitled to the conveyance 
 prayed for. In the very elaborate opinion of the Court, by 
 Agnew, J., the principal doubt of the Court is as to the 
 effect of the words in which the remainder is clothed, and 
 whether they are equivalent to the word "heirs." After 
 citing a number of conflicting authorities relating to this 
 point, the Court remark : " The result of these conflicting 
 principles and authorities is that it is difficult to determine 
 cases lying along the border. The present, in some of its 
 aspects, is one of that kind." They, however, come to the 
 conclusion that the words used in creating the remainder 
 are equivalent to " heirs," and say, " The words are ex- 
 actly commensurate with the law of descent, and operate 
 precisely with it : the persons intended are none others 
 than the heirs at law and all the heirs. The root of succes- 
 sion is the same ; they are to take from her as though she 
 died seized in fee simple. The persons are the same ; they 
 are to be those who would take' at law as though she died 
 intestate. Their estates are the same ; they are to take for 
 such quantity of estate as they would be entitled to at law, 
 and they are to take as heirs, for they are to take in such 
 manner as they would in such cases be entitled to at law. 
 It would be impossible to conceive a more comprehensive 
 and accurate periphrasis of the word 'heirs' than is con- 
 tained in these words. So complete are they that they 
 would carry a life estate which the law confers, to the hus- 
 band, who, surviving her, would be entitled by them to his 
 
THE RULE IN SHELLEY'S CASE. 271 
 
 curtesy estate." And the court conclude that, upon the whole, 
 "the trust being passive, and the trustees not needed to 
 protect any other interest, Mrs. Dodson being sui juris, and 
 competent to exercise any power which had been vested in 
 the trustees, the ulterior trusts not being intended to pro- 
 tect any special interest, but being exactly commensurate 
 with her own power and estate as absolute owner, there is 
 no proper or useful purpose to uphold the trust, and it con- 
 sequently fell when she became discovert." In» Yarnall's 
 Appeal,-^ a testatrix gave the residue of her estate to a trus- 
 tee in trust for the use of all her children living at her 
 death, and the issue of such as might then be deceased, in 
 equal parts, &c., the income of the shares of her sons to be 
 applied to their use during minority, and their shares to be 
 paid to them as they severally arrived at age ; the shares of 
 the daughters to be held by the trustee, to pa}^ the income 
 to the daughters during their respective lives, free from the 
 debts, control or engagements of any husband they may 
 have or take ; and after their decease, to grant, assign and 
 pay their shares to such person or persons, in such propor- 
 tions and for such estates and interests, as they by will 
 might respectively appoint, and in default of appointment, 
 then to grant, &c., their shares to such person or persons as 
 would be entitled to them in case they had survived their 
 respective husbands, and- died intestate, seized thereof in 
 fee. The daughters were unmarried at the time of the 
 death of the testatrix, and also when they afterwards peti- 
 tioned the court to direct the trustee to convey and pay 
 over their shares to them. It was held that there being 
 no coverture when the will took effect, and no marriage in 
 immediate contemplation, the trust for the separate use 
 fell ; that the language of the remainder over, on failure to 
 appoint, was equivalent to " heirs," and gave to the daughter 
 an absolute estate in fee. 
 
 1 20 p. F. S. 335. 
 
272 A VIEW OF THE LAW OF TRUSTS. 
 
 § 297. The rule as laid down in Price v. Taylor/ by Mr. 
 Justice Lowrie, and repeated by him (then Chief Justice) 
 in McKee v. McKinley,^ was that " if the remainder is to 
 persons standing in the relation of general or special heirs of 
 the tenant for life, the law presumes that they are to take as 
 heirs, unless it unequivocally appears that individuals other 
 than persons who are to take simply as heirs are intended." 
 In Guthrie's Appeal,^ Mr. Justice Strong denies the sound- 
 ness of this rule, and says the assertion was too broad. Such 
 a presumption is made only when technical words of limita- 
 tion are applied to the remainder-men, when the gift is to 
 "heirs" or "issue." And in Dodson v. Ball,* Mr. Justice 
 Agnew, referring to what was here said by Mr. Justice Strong, 
 says, " He was clearly right, for, undoubtedly, upon the 
 terms of the wills in those cases" (referring to Williams v. 
 Leech,^ Naglee's Appeal,** and McKee v. McKinley^), "the 
 opposite presumption was true, the words being those of purchase, 
 and not of limitation." This would seem, however, not so 
 much an objection to the rule itself, as to its application to 
 the facts in those particular cases. They decided that a 
 devise for life with remainder to children and their heirs, or 
 their issue, gave an estate of inheritance to the life tenant. 
 There the devise being to the children and their heirs, or their 
 issue, the testator would seem to intend the children to take as 
 a new stock — the root of a new succession — as purchasers, and 
 not through the life tenant, as heirs ; and hence the decisions 
 in those cases went beyond the rule laid down in Price v. Tay- 
 lor. But if the devise had been to the life tenant, with remain- 
 der to his children, simply, then the cases would have come 
 within the rule. Guthrie's Appeal repudiated the general 
 principle laid down in Price v. Taylor* and McKee v. McKin- 
 
 ' 4 C. 103. 
 
 
 MC. 89. 
 
 » 9 C. 93. 
 
 
 « 9 Id. 89. 
 
 » 1 Wr. 16. See Mazurie v. 
 
 Penna. 
 
 ' Id. 92. 
 
 Co., 34 Leg. Int. 291. 
 
 
 8 4 C. 95. 
 
 ' 10 P. F. S. 500. 
 
 
 
THE EULE m shelu^y's CASU. 273 
 
 ley/ as well as the ruling in the latter case, and denied the 
 authority of Williams v. Leech^ and Naglee's Appeal,'' so 
 far as they might be in conflict with the law as held in that 
 case. 
 
 § 298. In YarnaU's Appeal,* Mr. Justice Agnew says, 
 " The rule laid down by Judge Oswald Thompson in Potts' 
 Appeal,' and adopted by this court, seems fairly to have its 
 foundation both in reason and authority, viz. : that 'any form 
 of words sufficient to show that the remainder is to go to 
 those whom the law points out as the general or lineal heirs 
 of the first taker will enlarge the estate for life of the first 
 taker to an (estate in fee or) estate tail by implication.' " 
 This rule would seem very similaj- to that laid down in 
 Price V. Taylor,* which, as we have, seen, is that " if the re- 
 mainder is to persons standing in the relation of general or 
 special heirs of the tenant for life, the law presumes that they 
 take as heirs, unless it unequivocally appears that individ- 
 uals other than persons who are to take simply as heirs are 
 intended." This rule was adopted in Dodson v. Ball,^ and 
 the cases illustrating it cited and commented on, and would 
 appear very like a reassertion of the rule as laid down in 
 Price V. Taylor* and McKee v. McKinley,* and condemned 
 in Guthrie's Appeal.^" 
 
 § 299. Did estates tail descend under our Intestate Act 
 of 1833, and not as at common law, there would be strong 
 reason for the proposition that the term " children" was 
 prima facie one of limitation and not of purchase in Penn- 
 sylvania, as that term would then describe the lineal heirs 
 of the life tenant, the body of persons to whom the estate 
 
 1 9 C. 92. ° Ante, p. 272. 
 
 MC. 89. nop. F. S. 493. 
 
 '9C. 89. MC. 95. 
 
 * 20 P. F. S. 341. « 9 C. 93. 
 
 6 6 0.70. ioiWr.16. 
 18 
 
274 A VIEW OF THE LAW OF TRUSTS. 
 
 tail would descend ; and an estate to one for life, with re- 
 mainder to children, might then well create an estate tail. 
 This view was favored by Lowrie, J., in Price v. Taylor^ 
 and Williams v. Leech ;^ but it is denied, and the suggestion 
 entirely repudiated, in Guthrie's Appeal,^ the court holding 
 that estates tail in Pennsylvania, as in England, descend as 
 at common law — viz., according to the law of primogeniture — 
 to the eldest son, and not under our Intestate Act of 1833; 
 and as this was not in accordance with our rules of lineal 
 descent under that Act, the term "children" was ^n'ma/aa'e 
 not one of limitation, but of purchase. 
 
 § 300. In Price v. Taylor,* there was a devise to A. B. T., 
 " during her life, provided she shall not leave issue at her 
 death, but if she shall leave lawful issue at her decease, 
 then" ... to " go in fee simple to her heirs forever ;" and 
 in case she should not leave issue at her death, then over." 
 The will was dated before the passage of the Act of 1855 
 (the purpose of which is to convert words of entailment in 
 estates thereafter created, into words of general inheritance 
 in fee) , but the testatrix died after its passage, and it was 
 held that, independently of the Act of 1855, A. B. T. would 
 have taken an estate tail, but that, as the will did not take 
 effect until the testatrix's death, it must be governed by that 
 Act, and A. B. T. took an estate in fee simple. The court 
 say, as to the devise, " We may translate the clause in 
 question into some approximation to the usual language of 
 such devises, thus : I give my plantation to Ann for life, 
 with remainder to the heirs of her body in fee simple forever 
 (or, and their heirs and assigns forever), but if she die with- 
 out leaving issue living at her death, then I give the same 
 to my sister's children. We have used the term heirs of the 
 body where the testatrix used onl}^ the word heirs, because 
 
 1 4 C. 59. ' 1 Wr. 17. 
 
 2 4 C. 89. * 4 C. 95. See ante, p. 272. 
 
THE RULE IN SHELLEy's CASE. 275 
 
 her use of the word issue as a synonym shows this to te 
 her meaning. She means that it shall go to Ann's lineal 
 heirs, if she has any, and if not, then over. It is very evi- 
 dent that they are to take the remainder, not as persons 
 selected out of the number of her lineal descendants, but as 
 the lineal descendants of every degree from the first taker, 
 and according to our law of descents, and therefore under 
 the rule in Shelley's case, they take an estate tail." . . . 
 " The limitation to the issue in fee simple forever goes for 
 nothing, as being inconsistent with the lineal descent with 
 which the estate starts." And the general doctrine is laid 
 down that the words '' heirs" and " heirs of the body" most 
 frequently express the relation in which the second takers 
 must stand to the first, in order to come within the rule. 
 But the presence or absence of these Avords is not conclusive 
 either way, for any other words, such as next of kin, sons, 
 daughters, issue, children, descendants, will answer quite as 
 well, if they appear to be equivalent ; and the most appro- 
 priate words will not answer, if used in a special and inap- 
 propriate sense. Any form of words sufficient to show that 
 the remainder is to go to those whom the law points out as 
 the general or lineal heirs of the first taker will be suffi- 
 cient, unless it be perfectly clear that such heirs are selected 
 on their own account, and not simply as heirs of the first 
 taker. These propositions combined express the one prin- 
 ciple of law, that in a gift or conveyance to one for life, with 
 remainder to his heirs, general or lineal (in substance, even 
 though not in form), such heirs shall be ascertained by the 
 laws of inheritance, general or lineal, and shall be treated as 
 taking by descent from the devisee, and not by purchase 
 from the devisor. The presumption is that cases falling ap- 
 parently within the reason of the rule are intended to be 
 governed by it, and the court then states as the general 
 rule derived from these principles : "If, therefore, the re- 
 mainder is to persons standing in the relation of general or 
 
276 A VIEW OF THE LAW OF TRUSTS. 
 
 special heirs of the tenant for life, the law presumes that they 
 are to- take as heirs, unless it unequivocally appears that in- 
 dividuals, other than persons who are to take simply as 
 heirs, are intended."^ It was also there suggested, as has 
 already appeared, that since the Intestate Act of 1833, an 
 estate tail must descend according to our law of lineal de- 
 scents, and not according to the common law, and then 
 argued that, if so, a devise of an estate for life, with 
 remainder to " children," gave an estate tail to the first 
 taker. 
 
 § 301. McKee v. McKinley^ was a devise hy a father to 
 his daughter, a married woman, in trust for her sole and 
 separate use for life, not liable to the debts or engagements 
 of her husband, " reversible after her death to her children 
 if any surviving, or issue of such children, and in case of no 
 children or issue of children," then to return to his " relations 
 and lawful heirs." The husband died, and the daughter 
 afterward executed a deed for the purpose of barring any 
 existing estate tail in the land. She agreed to sell, and 
 brought a bill for specific performance. The defence was 
 that plaintiff had but a life estate, and could not make a 
 marketable title. Held that the trust for her separate use 
 was gone by the death of her husband, and that the vnll ga"\-e 
 her an estate in fee simple. The court say " that a devise 
 to one for life, with remainder to his heirs, is a fee simple. 
 This rule is sometimes amplified thus : If the remainder is 
 to persons standing in the relations of heirs general or 
 special of the tenant for life, the law presumes them to take 
 as heirs, unless it unequivocally appears that individuals, 
 other than persons who are to take simply as heirs, are in- 
 tended. Here the devise is to the plaintiff for life, and then 
 to her children or her issue ; and in default of these to the 
 testator's heirs. This is only another waj^ of devising to 
 
 ■ Price V. Taylor, 4 C. 103. ■" 9 C. 92. See mite, p. 272. 
 
THE RULE IN SHELLEt's CASE. 277 
 
 the plaintiff for life, with remainder to her heirs, or to the 
 plaintiflT and her heirs, and is the same in principle as Steacy 
 V. Rice.^ The roundabout way which the testator takes to 
 say 'heirs' does not affect the substance." . . . "Her 
 heirs are, first, her descendants, and next, her next of k,in 
 on the side of the testator, that is, his heirs, and this is just 
 the line of inheritance described by him." 
 
 § 302. In Williams v. Leech,^ a testator, after devising 
 real estate to two of his daughters, devised as follows : " I 
 give and bequeath unto my daughter Emily Anna a lot or 
 piece of ground" (describing it), and after devising other 
 real estate to another daughter, added, " It is my will that 
 neither of my children shall sell or convey any part of the 
 real estate hereby willed to them, but shall receive the 
 rents, issues, and profits thereof dui'ing their natural lives, 
 and after their or either of their deaths, their portion shall 
 be equally divided among their children and their heirs ; and 
 if either of my children should die without issue, their por- 
 tion shall be equally divided among the survivors." The 
 court held, first, that the will gave to the daughter Emily 
 Anna an absolute estate in the land, by the devising clause, 
 and that the subsequent clause was a mere purpose mani- 
 fested to restrain a child in the use of her land, which was 
 rather a paternal than a legal restraint, and, therefore, 
 void ; as mere limitations of power over an estate that is 
 absolute amount to nothing. But, second, assuming the 
 devise gave to the daughter a life estate, with remainder 
 over, the devise over was equivalent to a devise to the 
 heirs of the first taker (as it included them all, lineal and 
 collateral), and therefore she took a perfect fee simple title. 
 This case was affirmed in Naglee's Appeal,^ which arose 
 under the smne will. 
 
 1 27 State Rep. 82. = 9 C. 89. See ante, p. 272. 
 
 MC. 89. 
 
i78 
 
 A VIEW OF THE LAW OF TRUSTS. 
 
 § 303. In Naglee's Appeal/ the testator devised certain 
 real estate to his daughter E. A., when she should attain 
 the age of twenty-one years ; and provided that neither of 
 his children should sell or convey any part of the real 
 estate; but should receive the rents, issues, and profits 
 during their lives, and after their or either of their deaths, 
 their portion to be ejqually divided among their children 
 and their heirs ; and if either of his children should die 
 without issue, their portion to be equally divided among the 
 survivors ; and it was held that E. A. took a fee simple in 
 the land devised to her, the court saying that the principal 
 devising clause gave her a fee simple expressly, and that 
 this was not reduced to a life estate by the direction that 
 she should not sell or convey, for this was a void restraint 
 upon an absolute estate, and that the direction of the will 
 that she should receive the rents during her life, and after 
 her death her portion should be equally divided among her 
 children and their heirs, and if she die without issue, it 
 should be equally divided among the survivors of her chil- 
 dren, was not inconsistent with the fee granted before, 
 because it provided only for a division of the estate among 
 her heirs on her death, as the word " survivors" of her 
 sisters included the children of a sister not living. It 
 therefore gave her an estate of inheritance according to the 
 intestate act, first to her issue, and second to her collateral 
 heirs on the side of the testator. 
 
 § 304. In Guthrie's Appeal,^ a testator gave to his 
 daughter, a married woman, the use and life estate in her 
 own proper person (but without power to convey the same 
 to any other person for any period or term), a messuage 
 and tract of land ; and at her decease he gave them " to 
 such of her children or their heirs as may survive her, as 
 tenants in common, that is, the child or children of any 
 
 1 9 C. 89. See ante, p. 272. ' 1 Wr. 9. 
 
THE RULE IN SHELLEY's CASE. 279 
 
 deceased child of hers shall have the same interest and 
 right that the deceased parent would have held if living." 
 At the time the will was made the daughter had several 
 children ; and all her children were born before the will was 
 proved, and probably before the death of the testator ; and 
 it was held, Strong, J., delivering the opinion of the court, 
 that the word " children," as used in this will, was a word 
 of purchase, and not of limitation ; that the rule in Shelley's 
 case, therefore, did not apply, and the daughter took but a 
 life estate. The fact is alluded to, with but little or no 
 stress put upon it, however, that in this case there were 
 children of the first taker at the date of the will, and when 
 it took effect, while in Williams v. Leech there were none. 
 This case is a leading authority for the doctrine, in Penn- 
 sylvania, that in a devise for life, remainder to children of 
 the hfe tenant, the word " children," as a general rule, is a 
 word of purchase and not of limitation, and that, therefore, 
 in such a case, the rule in Shelley's case does not apply .-^ 
 
 § 305. Huber's Appeal^ was a case in which a testator 
 devised a portion of his residuary real and personal estate 
 to his son Jacob, " for and during all the term of his natural 
 life, and after his decease, then to all his children then 
 living, and the issue of such of them as may be then dead, 
 their heirs and assigns forever, in equal parts ; such issue 
 taking and among themselves equally dividing ■ such part 
 and share only as their deceased parent would have taken 
 if living ;" and in the concluding paragraph of the will, the 
 testator declared : " It is my mind and will that the part 
 and share of my estate hereinbefore devised for the benefit 
 of my said son, Jacob, shall be and remain in the care and 
 management of my said executors as his trustees, the in- 
 terest and income of which, for and during the term of his 
 
 ' See Ulam v. Ulam, 1 Weekly ^ 33 Leg. Int. 289 ; 30 P. P. S. 348. 
 Notes 24. 
 
280 A VIEW OF THE LAW OF TRUSTS. 
 
 natural life, I direct to b& paid to him, or to be applied by 
 them, at their option, for his support and maintenance, so 
 that the same shall not be liable to his disposal, or subject 
 to the payment of his debts ;" and it was held that the son 
 took but a life estate, on the ground that in ascertaining 
 the intention of a testator, one of the ordinary principles of 
 construction is that the word " children" is primarily a word 
 of purchase, and there was nothing in the will of the tes- 
 tator to show that he used the word as one of limitation ; 
 and, moreover, there was not such a gift of an " estate of 
 freehold" to the son as, under the rule in Shelley's case, or 
 under any principle in analogy to that rule, would support 
 a limitation to his heirs. The Court, as to this point, per 
 Woodward, J., say : " The decision of every case involving 
 the construction of testamentary words must depend, in 
 some measure, on its special facts. In the present case, 
 Jacob Gaul was not clothed with dominion over the interest 
 devised to him, even during his own life. While one-eighth 
 of the testator's residuary estate was given to him in a clause 
 directing distribution upon the death of the widow, the con- 
 cluding paragraph of the will declared that his share should 
 remain in the hands of the executors as his trustees, that it 
 should be at their option whether the income derived from 
 it should be paid to him, or be applied by them to his sup- 
 port, and that ' the same' (the income) should ' not be liable 
 to his disposal or subject to thepayment of his debts.' The 
 legal title was vested in the trustees as the effect of these 
 provisions, and his control even over the income was with- 
 held. This was not such a gift of ' an estate of freehold' to 
 Jacob as under the rule in Shelley's case, or under any prin- 
 ciple in analogy to that rule, would support a limitation to 
 his heirs. The actual gift of the estate, as such, was to the 
 trustees, and not to Jacob Gaul." 
 
THE RULE m Shelley's case. 281 
 
 § 306: In the Appeal of Jacob T. Williams/ the testator 
 gave the entire corpus of the estate to trustees, with active 
 duties, such as to lease the realty, and put out the personalty 
 upon real security, and to collect the rents and income, and 
 pay them to H. W. for life, and so that they should not be lia- 
 ble to the control or debts of her husband, with power of ap- 
 pointment by will, and in default of such appointment then in 
 trust after the decease of his said daughter H. W., " to and 
 for the only proper use and behoof of all and every the child or 
 children which she may leave, and the lawful issue of any of 
 them who may then be deceased, having left such issue, their 
 several and respective heirs, executors, administrators and 
 assigns^, in equal shares, as tenants in common," the issue of 
 any deceased child to take only the parent's share, and in case 
 of the death of said H. W. without any child or children, or 
 the issue of a deceased child, and in default of appointment 
 by will, then the estate to go over to the right heir or heirs 
 of H. W. ; and it was held that the words " child or chil- 
 dren," as above used, were words of purchase, and that they 
 taking as purchasers from the testator and not by inherit- 
 ance from H. W., interposed an estate between the life 
 estate and the remainder to the right heirs of H. W., which 
 prevented the operation of the rule in Shelley's case, whereby 
 H. W. took but a life estate. 
 
 § 307. " It is proper to remark," says Mr. Chief Justice 
 Agnew, in Earp's Appeal,^ " that the decision upon one will 
 rarely ever forms a precedent for a decision upon another. 
 Even the same words in one are often interpreted differently 
 in another." . . . "The reason is, wills being interpreted 
 by the whole instrument, the intentions of testators in the 
 use of the same expressions are discovered often to be as 
 various as their individuality. Hence, that which may 
 appear to be contrariety of decision is simply diversity in 
 • 34 Leg. Int. 257. ^ 25 P. F. S. 125. 
 
282 A VIEW OP THE LAW OF TRUSTS. 
 
 the testator's intention." ^ " And so," says Woodward, J., 
 in Huber's Appeal,^ " the decision of every case involving 
 the construction of testamentary words must depend in 
 some measure on its special facts." All this is undoubtedly 
 true ; but still it is not to be forgotten that there are not 
 only principles of interpretation and of law applicable to all 
 wills alike, but there are certain terms, as " heirs," " chil- 
 dren," " issue," &c., which, by judicial construction, have a 
 determinate prima facie meaning and effect, and, when used 
 in a will, are to be given that meaning and effect, unless it 
 appear from other parts of the will that the testator intended 
 to use them in a different sense. And even then, in the 
 ascertainment of the testator's intention as to any given 
 point, the language used, and the provisions of the wills, are 
 sometimes so substantially similar, that the interpretation 
 of one will shed much light upon, if, indeed, it should not 
 govern in, the interpretation of the other.^ 
 
 ^ In the appeal of Jacob T. Wil- where ignorant men draw wills, a 
 
 liams (34 Leg. Int. 257), the same class which far outnumbers the for- 
 
 learned judge, adverting to this doc- mer. No greater outrage upon the 
 
 trine as laid down by him in Earp's rights of dying men could be com- 
 
 Appeal, says, "It has always been mitted than to defeat their just inten- 
 
 supposed that the intention of a tes- tions by rules which make words, and 
 
 tator is the polar star to guide to the not the sense, the guide of interpre- 
 
 meaning of his language. There is tation." 
 
 no Procrustean rule on which words " 33 Leg. Int. 289, ante, p. 279. 
 
 can be stretched to make them always ■■" Further instances of the applica- 
 
 fit certain legal results, whether so tion of the rule in Shelley's case will 
 
 intended or not. Such a rule might be found in other cases hereinafter 
 
 suit city scriveners where wills follow cited, but classed under different 
 
 given formulas, but never could be heads, to which they seemed more 
 
 tolerated in those parts of the State properly to belong. 
 
ACTIVE AND PASSIVE TRUSTS. 283 
 
 CHAPTER XXXIII. 
 
 ACTIVE AND PASSIVE TRUSTS. 
 
 § 308. Among the active trusts has always been classed 
 that to receive and pay over the profits to another. So, 
 where the trustee is to dispose of the property, or apply the 
 rents to the maintenance of the cestui que trust, or to make 
 repairs, or to pay annuities, or to manage the estate, as he 
 should think most for the interest of the cestui que trust, the 
 trust is an active one.^ Thus stood the law down to the 
 case of Kuhn v. Newman,^ when a doctrine was announced 
 from the Supreme Bench which swept away active trusts in 
 aU cases where the whole beneficial estate is granted, unless 
 there was some special reason for preserving them, such as 
 to protect married women from their husbands, &c. In this 
 case of Kuhn v. Newman, there was a life estate for the use 
 of a married woman, created by her father, which, having 
 terminated, the case came before the court upon questions 
 affecting the remainders alone. As to these the trust was, 
 upon the death of the life tenant, to " educate, maintain and 
 support" such of her children as she might leave under the 
 age of twenty-one years of age, until their arrival, respect- 
 ively, at that age, and then, or in case at her death they 
 should be of that age, " then in trust for such children, re- 
 spectively, in equal proportions," . . . "for the sole and 
 separate use of such children, respectively, their heirs, 
 executors, administrators and assigns, forever, and that, free 
 and clear, if females, of any debts, liabilities, contracts or 
 engagements of their husbands, and subject, as to the income 
 thereof, to their own free and absolute control." There 
 
 1 Barnett's Appeal, 10 Wr. 399, per Notes 533 ; Montmort v. Fidelity Co., 
 
 Read, J. ; Bife v. Geyer, 9 P. F. S. 34 Leg. Int. 248. 
 
 396 ; see Briggs v. Davis, 33 Leg. Int. ^ 2 C. 227. 
 349; Osborne v. Soley, 2 Weekly 
 
284 A VIEW OF THE LAW OF TRUSTS. 
 
 seems to have been no active duty expressly imposed upon 
 the trustees, as to the children, except in the trust to "edu- 
 cate, maintain and support" them during their minority; but 
 this the court declared void, not because it would be so as an 
 active trust, but because the duties are those of a guardian 
 only, and as such could not be committed to trustees, except 
 when such committal can be treated as a testamentary 
 guardianship, which could be done only by the father, which 
 was not the case here, the trust having been created by the 
 grandfather. It is true the trust estate was to be held by 
 the trustees for the sole and separate use of the children, 
 "free and clear, i^ females, of any debts, liabilities, con- 
 tracts, or engagements of their husbands." But this im- 
 posed no active duty upon the trustees, and it would seem 
 settled that such a trust would not be sustained where the 
 females to be protected were neither married nor in imme- 
 diate contemplation of marriage. Be this as it may, how- 
 ever, the court, without question or inquiry as to whether 
 this was an active or passive trust, or pronouncing it either 
 the one or the other, held that the children took absolute 
 legal estates, free from all restraints, and say, "our common 
 law takes a higher position than either English common law 
 or English equity, by adopting a principle that in form and 
 substance harmonizes them both into one system." . . . That 
 this principle we have so far carried out, that a trust " to 
 receive rents and 'pay them to another" is " executed by our 
 principle;" . . . "\)j ih.Sii^xmGV^\Q, no matter tvhat may he 
 the form of the conveyance, where the ivhole heneficial estate is 
 granted, all restraints upon its enjoyment are fruitless. As a 
 general rule, such restraints avail only in protection of 
 future interests. In the matter of ordinary trusts for indi- 
 viduals, the principle yields only where there is some sort 
 of disability in the owner that entitles him to the protection 
 of the court. Neither law nor equity undertakes the special 
 guardianship of all those estates that parties choose to create 
 
ACTIVE AND PASSIVE TRUSTS. 285 
 
 in a peculiar form. Most of them are with us mere legal 
 estates in their effects, and as to all the remedies for their 
 protection." That " whenever the estate granted is essen- 
 tially an estate in fee in law or equity, there may be disa- 
 bihties in the owner that will prevent or suspend its complete 
 enjoyment by him as such ; but no attribution of qualities 
 to the estate itself, that are inconsistent with its fee simple 
 character, can be allowed. It is essentially subject to the 
 owner's absolute control, and all restraints upon this control 
 are void;" thus entirely repudiating the efficacy of active 
 trusts where the entire beneficial interest is given the cestui 
 que trust. The court refused to decree a conveyance from 
 the trustee to the cestui que trust, because the legal estate 
 was held to be executed in the cestui que trust, by force of 
 law, and there was no necessity for it.^ This case was 
 approved in Whichcote v. Lyle,^ which arose upon the same 
 trusts. 
 
 § 309. Bush's Appeal' followed Whichcote v. Lyle. In 
 this case a testator appointed his son-in-law a trustee for a 
 daughter (Mrs. Snyder), a married woman, and directed 
 that the trustee should receive from his executors his 
 daughter's legacy, put it at interest, pay the interest to her 
 yearly during her life, and after her decease, pay the 
 principal to her heirs in equal parts. Upon the death of her 
 husband, she claimed the legacy as her own, in absolute 
 right, discharged of the trust, and to receive it from the 
 trustee. The Court held that she was entitled to receive 
 the legacy, observing that " on the expressed intention of 
 the testator, the whole legacy was for the daughter, and the 
 creation of the trust was not to lessen her interest in it, but 
 to secure it to her. He was providing against her husband, 
 in the usual form of a trust, and not providing a protection 
 
 1 See Kay v. Soates, 1 Wr. 40 ; Rush M C. 73. 
 V. Lewis, 9 H. 72. ' 9 C. 85. 
 
286 A VIEW OF THE LAW OF TRUSTS. 
 
 for his daughter's heirs against tKeir mother. Now that the 
 husband is dead, the trust is without purpose, and she may 
 claim an account and payment of the legacy." And they 
 furthermore say, " But without regard to any expressed in- 
 tention of the testator concerning the purpose of the trust 
 the legacy is absolutely Mrs. Snyder's, because it is given 
 to her and her heirs — to her for life, and then to her heirs. 
 The trust, if valid, does not affect the real title. The equity 
 form does not at all obscure the substantial title. A devise 
 to one for life, with remainder to his heirs, or to the heirs 
 of his body, in legal or equitable form, gives a fee simple or 
 fee tail in land, and an absolute right to personal property." 
 In this latter aspect of the case, the court, leaving out of 
 view the fact that the trust was created for the protection 
 of a married woman, treat the trust to invest and pay over 
 the income as a passive one, under which the daughter 
 would have taken the legal estate had she been a feme sole. 
 
 § 310. In Kay v. Scates, a testator devised one-third of 
 his estate to each of his three children (a son and two 
 daughters) for life, with power of appointment in favor of 
 the issue of his or her body ; in default of such appoint- 
 ment, then to such issue, and in default of any issue, to the 
 testator's heir at law by consanguinity, directing the same 
 to be held in trust by his executors, who were directed to 
 sell and invest the property in real estate, and allow the 
 children, from their income therefrom, such money for their 
 support and education as they might think proper, and also, 
 on their attaining the age of twenty-five, to pay them re- 
 spectively, during their natural lives, in quarterly instal- 
 ments, the income of said real estate, for their respective 
 benefit; the object of the trust, as to the shares of the two 
 daughters (who were unmarried when the will took effect, 
 and no marriage was immediately contemplated), purport- 
 ing to be to prevent their interest in the estate from becom- 
 
ACTIVE AND PASSIVE TRUSTS. 287 
 
 ing liable for any debts or engagements, or subject to the 
 control of any husband they might have or take. Upon a bill 
 filed by the children against the executors to compel them to 
 convey the legal title to the real estate to the complainants, 
 it was held that on the children's attaining respectively the 
 age of twenty-five years, the devise created an estate tail in 
 each, clear of the trust, which by the Act of 1855 was con- 
 verted into an estate in fee simple ; and a conveyance was 
 decreed to the son, who had attained the age of twenty-five 
 years, of his share, the others not having arrived at that 
 age. In this case there was an active trust for the life of 
 the children, with remainder to the issue of their body re- 
 spectively, and in default of issue, then over, with discre- 
 tionary power in the trustees as to the amount they would 
 allow the children for their support and education untU 
 they arrived at the age of twenty-five years ; and the Court 
 (Strong, J.), after showing that, by the English rule, as the 
 trust was an active one during the lives of the children 
 (being to invest the property and pay them the income), 
 the life estates were equitable, while the remainders were 
 legal, and therefore could not unite, nevertheless, solely 
 upon the authority of Kuhn v. Newman, and Bush's Appeal, 
 held that the particular estate for life, and remainders, are 
 both legal, as each child arrives at the age of twenty-five 
 years, and as such the two estates then unite, and give an 
 estate tail to each child, which is converted into an estate in 
 fee by the Act of 1855. That the trusts are preserved 
 until the children respectively arrive at the age of twenty- 
 five years oijly because of the discretionary power in the 
 trustees as to the amount they would allow them for their 
 support and education until they arrived at that age ; a trust 
 which could not be discharged under the direction of the 
 Orphans' Court after they arrive at majority, which fur- 
 nished a reason for its continuance that did not exist in 
 Kuhn V. Newman, where the trust was to educate, maintain 
 
288 A VIEW OF THE LAW OF TRUSTS. 
 
 and support children until their arrival at the age of twenty- 
 one, and which the Court in that case said were simply the 
 duties of a guardian. And the Court in this case (of Kay v. 
 Scates) put the estates of the daughters upon the same 
 footing as that of the son, adverting to the doctrine as set- 
 tled, that a trust is not to be sustained for females because 
 for their sole and separate use, they being unmarried when 
 the will took effect, and no marriage being immediately 
 contemplated.^ 
 
 § 311.. But in Barnett's Appeal,^ the doctrines of Kuhn 
 V. Newman and Bush's Appeal were overruled. In that 
 case a testator devised and bequeathed to his executors all 
 the residue of his estate, real and personal, in trust to lease 
 the real estate, .keep invested the personal estate in bond 
 and mortgage, or other safe and substantial securities, collect 
 and receive the rents, interest, income, and profits thereof, 
 and out of the income to pay all expenses necessarily in- 
 curred in keeping the real estate in good order and repair, 
 and all taxes and lawful charges that may be assessed or 
 levied, as well upon the real estate as upon the personal, 
 and also to pay all expenses attendant upon the collection 
 of the rents and income, and pay over and distribute the 
 net income of the estate, real and personal, as follows : 
 one-third part thereof to his son James B., during his life ; 
 one-third to his son John B., during his life, and the re- 
 maining third to his daughter B. F., during her life, for her 
 own separate use, so that the same shall not be taken for 
 the payment of the debts of her present or any future hus- 
 band ; and in case of the decease of one or two of his said 
 children, without leaving lawful issue, then one moiety of 
 said net income shall be paid to each of the survivors, or 
 
 ^ In Dodson v. Ball (10 P. P. S. the case having been ruled by Kuhn 
 
 496), Agnew, J., says of this case v. Newman, and Bush's Appeal, 
 
 that " the opinion looked one way, ^ 10 "Wr. 392. 
 while the judgment faced another," 
 
ACTIVE AND PABSIVB TRUSTS. 289 
 
 the whole thereof to the surviv6r, as the case may be, 
 during the life of the said survivors or survivor; and in 
 case of the decease of all his children, without lawful issue 
 them surviving, then the said estate, real and personal, to 
 descend to and be vested in such persons as by the laws of 
 Pennsylvania are directed concerning the estates of intes- 
 tates ; and in case of the decease of one or two of his said 
 children, leaving lawful issue, then the portion of the in- 
 terest and income that was paid to the parent of such issue 
 prior to his or her decease to be paid to such issue in equal 
 proportions, if more than one, during the natural lives or 
 life of the survivors or survivor of his said children ; and 
 upon the decease of the survivor of his children, then his 
 executors and the survivor of them to divide, grant, pay, 
 assign, and distribute all his said estate, real and personal, 
 to and among the issue of his children, in equal shares, 
 such issue and their descendants, if any, taking and re- 
 ceiving only such part or share thereof as his, her, or their 
 deceased parent would have been entitled to if then living. 
 The executors were also authorized to sell either at private 
 or public sale, or let on ground rent, such parts of the real 
 estate as in their judgment, or the survivor of them, 
 ought to be sold, and to convey the same. All ground 
 rents reserved by the executors to be held by them and 
 the survivor of them, to the uses and purposes before set 
 forth ; and all purchase money to be invested in other real 
 estate or ground rents, or bond and mortgage, or in some 
 other safe and substantial security, to be held for the same 
 uses and purposes. This was held to be an active trust 
 during the lives of the three children ; the trust ceasing 
 upon the death of the surviving child, when the estates 
 would become vested in the parties entitled to them at that 
 time. That the estate in the cestui que trusts was, there- 
 fore, an equitable one during the lives of the three children 
 and the survivor of them ; and the estate in remainder after 
 
 19 
 
290 A VIEW OF THE LAW OF TRUSTS. 
 
 their death was legal according to our law ; that the rule in 
 Shelley's case did not apply, and the first taker had not, as 
 had been held in the court below, vested estates tail. 
 
 § 312. In the Girard Co. v. Chambers,^ a testatrix devised 
 real and personal estate to a trustee, in trust, to collect and 
 receive the rents, issues, interest, and income therefrom, 
 and after deducting expenses, to pay over the same to the 
 cestui que trust for his own use and benefit, or to such per- 
 son as by his order in writing he may authorize to receive 
 the same ; and, upon his decease, to assign, transfer, and 
 convey the said estate so held as he by his last will should 
 appoint ; and in default of appointment, to such person or 
 persons for such estates, and in such shares, as would be 
 entitled to the same had he died intestate. Held that the 
 trust was an active one, A^esting the legal estate in the 
 trustee, and the equitable in the cestui que trust, but that 
 the income for life was the absolute property of the cestui 
 que trust, and was therefore attachable by his creditors; while 
 it could have been secured to him by provisions in the will 
 against alienation and liability for his debts. 
 
 § 313. In Shankland's Appeal,^ a testatrix devised real 
 and personal estate to a trustee, to hold in trust for, and to 
 collect and receive the rents, issues, and interest thereof, 
 and pay over the same to, his son, for and during all the 
 term of his natural life, without being subject to his debts 
 or liabilities ; and at his decease, then the testatrix gave 
 the same to all and every the child or children, if any, of 
 his said son, his, her, and their heirs and assigns, in fee 
 simple ; and in case of his death without issue him sur- 
 viving, then over. The son entered into an agreement to 
 sell his estate and interest under the will, and upon refusal 
 of the purchaser to comply, the son brought a bill for 
 
 UOWr. 485. m Wr. 113. 
 
ACTIVE AND PASSIVTl TRUSTS. 291 
 
 specific performance ; the respondent answered that he 
 was advised complainant had no such interest as could be 
 lawfully assigned or conveyed according to the terms of 
 the agreement ; and it was held that the trust was an active 
 one ; that legal estate was vested in the trustee, and no 
 act of the cestui que trust could deprive him of it, or allow 
 him to interfere with the collection of the income ; and, say 
 the court, per Read, J., "No creditor could touch the in- 
 come or any interest which the cestui que trust had in it." 
 The cestui que trust " could grant no life estate, and put the 
 vendee in possession of it, for he had not the slightest power 
 over the possession.'' 
 
 § 314. In Sheets' Estate,^ a testator, after making pro- 
 vision for his widow, gave the whole of his estate, real and 
 personal, to certain of his children by name, share and share 
 alike, directing, however, that one of his daughters should 
 have a thousand dollars more than the other children, all 
 which he ordered should be invested by his executor there- 
 inafter named, so far as the same should be converted into 
 money, and the interest of the money so invested; as well 
 as the rents, issues and profits of his real estate, he directed 
 to be paid over to his said children annually during their 
 respective lives, and after the death of any one or more of 
 his said children, the principal of such deceased child should 
 be paid over to the children of such deceased child; all this 
 in one sentence — a single disposition. It was followed by 
 the proviso that if any of the said children should die with- 
 out issue, the share, purpart or dividend of such heir should 
 be equally divided amongst the survivors or " the children 
 of the survivors of such heir." Held that the children named 
 by the testator were made beneficial owners of a life estate 
 only, in the income of the personalty and realty, and that a 
 remainder in fee was given to the children of the children. 
 
 ' 2 P. F. S. 257. 
 
292 
 
 A VIEW OF THE LAW OF TRUSTS. 
 
 Strong, J., delivering the opinion of the Court, says in 
 reference to the trust in favor of the children : " It is too 
 late to argue that it is executed in the beneficiaries. The 
 duties to he performed by the trustee are of such a nature 
 as to forbid it. They are continuing and active, and they 
 are necessary to preserve the remainders. The trust would 
 hardly be stricken down under the doctrine of Kuhn v. 
 Newman. Much less can it be disregarded now that Kuhn 
 V. Newman has been overthrown by Barnett's Appeal." But 
 he passes by the question whether the estates limited for 
 life and those in remainder are of the same nature, both 
 legal or both equitable, which, he says, it might be difficult 
 to answer affirmatively.^ 
 
 ' It will be observed that in this 
 case the testator first ^ives the estate 
 to the children (but without words of 
 limitation), and then creates the 
 trust. And the stress of the opinion 
 of the Court is to show that the fee 
 simple in the real estate, and the ab- 
 solute interest in the personal, appar- 
 ently given in the first clause of the 
 gift, are restricted by the testator in 
 the subsequent provisions of the will. 
 In reference to this, Mr. Justice 
 Strong says : "It may be that if the 
 first clause of the sentence stood 
 alone, it would give a fee simple to 
 those children in the real estate, and 
 an absolute interest in the personal 
 property. But in the same sentence, 
 as well as in those that follow it, the 
 testator has declared in effect that 
 such was not his intention. No prin- 
 ciple is better settled than that if a 
 testator in one part of his will give to 
 a person an estate of inheritance in 
 lands, or an absolute interest in per- 
 sonalty, and in subsequent passages 
 unequivocally shows that he means 
 the devisee or legatee to take a lesser 
 
 interest only, the prior gift is restrict- 
 ed accordingly. Subsequent provi- 
 sions will not avail to take from an 
 estate previously given qualities that 
 the law regards as inseparable from 
 it, as, for instance, alienability ; but 
 they are operative to define the estate 
 given, and to show that what without 
 them might be a fee was intended to 
 be a lesser right. And especially is 
 this so when, as in this case, the prior 
 gift is made in words which in them- 
 selves only raise a presumption of a 
 fee, when there are no words of lim- 
 itation. The principle is not only a 
 rule of the common law ; it is recog- 
 nized in the 9th section of our Statute 
 of Wills. Both the admitted rules of 
 legal construction and the statute re- 
 gard a limitation over after the death 
 of the first taker as evidence of an 
 intention that the devisee or legatee 
 of the prior estate in order of enjoy- 
 ment is to have no more than an es- 
 tate or interest for life. So is a direc- 
 tion that the interest of money, or the 
 rents, issues and profits, shall be paid 
 annually to him for life. And so is a 
 
ACTIVE ANP PASSIVE TRUSTS. 
 
 293 
 
 § 315. In Wickham v. Berry/ a testator gave the residue 
 of his estate to trustees to and for the use, support, and 
 
 1 5 P. F. S. 70. 
 
 power of sale given to another, ac- 
 companied by an order that the pro- 
 ceeds shall be invested during the life 
 of the first benejioiary, and afterwards 
 paid over to another donee. The 
 second of these dispositions may not 
 of itself be sufficient to overcome the 
 force of a prior gift of a fee in express 
 words, as was held in Silknittei-'s Ap- 
 peal, 9 AVr. 365. In that case there 
 was not only a gift to the beneficiary, 
 her heirs and assigns, but the absence 
 of any gift over. But it has not been 
 doubted that a limitation over after 
 the death of the first taker, and a 
 pow_er of sale in another, with direc- 
 tions to invest and pay the interest to 
 the beneficiary dui'ing life, and after 
 his death the principal over, are ut- 
 terly inconsistent with the existence 
 of a fee or absolute interest in such 
 a donee. They are not only inconsis- 
 tent, but they will reduce a fee ex- 
 pressly devised, to an estate for life. 
 All these things are found in the pre- 
 sent will. The testator appointed an 
 executor and committed to him the 
 administration of all the personal pro- 
 perty. There are no specific bequests 
 or devises. The executor not only 
 has the power, but it is his duty, to 
 convert the personalty into money in 
 order to execute the will, and when 
 thus converted it is made his duty, 
 not to pay it to the children named, 
 but to invest it and pay them the inter- 
 est during their respective lives, and 
 after the death of any one of them, to 
 pay the share of that one to the chil- 
 dren of such decedent or the survi- 
 vors. How are these duties to be per- 
 formed if the children of the testator 
 
 take absolutely the entire ownership ? 
 How is the executor in such a case to 
 invest and pay interest annually? 
 How is he after the death of a child 
 to pay the principal to a grandchild ? 
 It is impossible. These directions of 
 the will are wholly irreconcilable 
 with any construction that asserts an 
 absolute interest in the personalty to 
 have been given to a child of the tes- 
 tator." And he goes on to show it is 
 the same in regard to the rea,l estate ; 
 as to which, however, in addition, 
 power is given to the executor, at his 
 discretion, to sell and convey the 
 whole or any part, the proceeds to be 
 invested and the interest thereon paid 
 to the testator's children annually 
 during their lives ; which is declared 
 to be utterly inconsistent with the ex- 
 istence of an estate of inheritance in 
 those children. And then, as to the 
 effect of the word " issue," in the 
 phrase " if any of said children should 
 die without issue," he says : " In gifts 
 of personalty a different meaning is 
 attached to the word issue from that 
 which it bears when used in devises 
 of realty. The remainder-men take 
 as purchasers, and hence such a re- 
 mainder does not enlarge the partic- 
 ular estate. Moreover, both in re- 
 gard to realty and personalty, it is an 
 unbending rule that when a fee sim- 
 ple or an absolute interest is given in 
 remainder after an estate for life to the 
 children of the first taker, words fol- 
 lowing containing a limitation over 
 on default of his issue are held not to 
 raise an estate tail by implication. In 
 this class of oases issue is construed 
 to mean such issue, that is, children. 
 
294 A VIEW OF THE LAW OF TRUSTS. 
 
 maintenance of his son Thomas, who was then a minor, and 
 at his death without issue, to the use and support of the 
 testator's sisters and brother, or the survivor. He then 
 proceeded to say, " I desire and direct my executors to 
 support and educate my son Thomas out of and from the 
 trust estate hereby created, and if my son Thomas so 
 desires, to give him a collegiate education, at «uch college 
 as the said Thomas and my executors think best ; to 
 keep the farm and property without sale or division during 
 the life of the said Thomas, and make the same as profitable 
 as may be for him and his heirs, and at his and their death, 
 to my sisters and brother, or such of them ^s may be 
 living on the happening of the event, as heretofore ex- 
 pressed." He appointed the trustees his executors. It 
 was held that this created an active, special trust for the 
 son for life ; that though a minor at the time, the trust was 
 not executed by his arrival at majority; and upon his 
 arrival at majority, therefore, he was not entitled to posses- 
 sion of the farm. Agnew, J., delivering the opinion of the 
 court, says : " Though inartificially expressed, this will 
 certainly created ap active, special trust, involving the 
 care and management of the farm, to make it profitable, to 
 educate and maintain Thomas, and at his death without 
 issue, to continue to manage and make it profitable, and to 
 support the testator's sisters and brother thereout." 
 
 § 316. In Bacon's Appeal,^ a testator gave to his chil- 
 dren by name the residue of his estate, real and personal ; 
 having by his will made some devises of real estate to 
 
 The ultimate devise thus becomes the (viz., to the children of the survivors 
 
 gift of a fee after a fee. By this vrill of such heir) can, therefore take 
 
 a remainder of the entire interest vras effect only as an executory devise or 
 
 given to grandchildren. A fee in an alternative limitation, not as a re- 
 
 them is inconsistent with the existence mainder." 
 
 of anything more than a life estate in ' 7 P. F. S. 504. 
 
 the children, and the last disposition 
 
ACTIVE AND PASSIVE TRUSTS. 295 
 
 trustees for the separate use of his daughter Mary A. 
 Bacon, during her life, and to the use of her husband, if he 
 survive her. By a codicil he revoked so much of his will 
 as provided that any real estate therein mentioned should 
 vest immediately in either of his daughters or their hus- 
 bands, and in lieu thereof, devised to trustees, in fee, the 
 whole of the real estate intended for his daughters, in trust 
 for the use and benefit of his said daughters and their 
 families respectively; the daughters' portions to be desig- 
 nated for them respectively, and their families, and held by 
 the trustees in trust, and the income of the respective por- 
 tions received by the trustees and paid over to the 
 daughters respectively for their sole and separate use to 
 each, during life, and to her husband if he survive, and 
 after the decease of the daughters and their husbands 
 respectively, said portions to be conveyed to the "right 
 heirs" of the daughters respectively, in fee simple. And by 
 a second codicil, the testator revoked so much of his will 
 as gave to either of his daughters directly any part of his 
 personal estate ; and he gave the same to the same trustees, 
 in trust, for the sole and separate use of his said daughters 
 respectively ; to be invested in such productive funds as 
 may be approved by said trustees, and the income to be 
 received by them, and paid over to the daughters respec- 
 tively, in the same manner with the income of his real 
 estate, during their lives respectively; and in case of the 
 decease of any of the daughters, leaving a husband sur- 
 viving, the income to be received and enjoyed by the hus- 
 band during his life, and after the death of the daughters 
 and their husbands respectively, the share of each daughter 
 to go to " her right heirs forever." The case arose upon 
 Mrs. Bacon's share, upon a decree of distribution, and it 
 was held that the trust was an active one during her life, 
 and her estate, therefore, an equitable one, while the estate 
 in remainder to " her right heirs" was a legal one, so that 
 
296 A VIEW OB THE LAW OF TRXTSTS. 
 
 there was no union of the two estates ; that she took hut a 
 life estate in the realty and in the personalty also on the 
 ground that by the terms of the bequest, Mrs. Bacon would 
 have taken but a life estate had the gift been realty ; in 
 short, that the rule governing the realty and the personalty 
 in this respect was the same. But, say the court, as to the 
 personalty the rule in Shelley's case has nothing to do with 
 the question. It is true the principle is well established 
 that where personal estate is bequeathed in language which, 
 if applied to real estate, would create an estate tail or a fee 
 simple, it vests absolutely in the person who would be the 
 devisee in tail or in fee, and this rule applies to cases which 
 come within the rule in Shelley's case. And, in reference 
 to the realty, the court say of the trust substituted by the 
 codicil : " It is what is denominated an active trust. It 
 imposed upon the trustees duties beyond that of passively 
 holding the title ; and they were constant and continuous, 
 not at all dependent upon the coverture of Mrs. Bacon or 
 any of her daughters. The trustees were to receive the 
 income of the property and pay it over. For this purpose 
 the title was given to them ; and for this purpose it was 
 necessary they should hold it during the life of the cestwi 
 que trust. . . . Her interest under her father's will was 
 equitable, and the use limited for her was never exe- 
 cuted." 
 
 § 317. In Earp's Appeal,^ a testator gave the residue of 
 his estate to trustees, in trust, to collect the rents, income 
 and interest, and pay one equal fourth part thereof to each 
 of his children, during their natural lives respectively, and 
 upon the decease of either of them, then in trust, as respects 
 one equal fourth part of the principal of his residuary estate, 
 to grant, convey, assign and transfer it to such person or 
 persons as such deceased child may direct or appoint by 
 
 ' 25 p. F. S. 119. 
 
ACTIVE AND PASSIVE TRUSTS. 297 
 
 will ; and in case of the death of either of his said children 
 without making any such appointment, then in trust to 
 grant, convey and assign one equal fourth part of the prin- 
 cipal of his said residuary estate to such person or persons 
 as by the laws of the Commonwealth of Pennsylvania would 
 have been entitled to the same if the said deceased child 
 had been legally seized of the said premises in his or her 
 own right, and died intestate. This was held to be an 
 active trust during the lives of the children, and that they 
 were not entitled to a conveyance of the legal title. And 
 Mr. Chief Justice Agnew, delivering the opinion of the 
 Court, says : " In this will there are four things to be 
 noticed, distinguishing it clearly from Yarnall's Appeal and 
 Ogden's Appeal. The corpus of the estate is fully and dis- 
 tinctly invested in the trustees, and put under their con- 
 trol. The bequests to the three children are only of the 
 income. Their estates in the income are only for life, and 
 without regard to coverture. The principal is devised and 
 bequeathed to the persons who would be entitled to it under 
 the intestate law. Here is plainly an active operative 
 trust, following a manifest intention essential to carry it 
 into effect, by holding the corpus of the property itself, in 
 the hands of the trustee, during the lives of the testator's 
 own children, irrespective of any purpose in regard to 
 coverture, to enable them to receive and apply the income 
 only to these children, and then to carry over the principal 
 or corpus to their issue ^ at their deaths. Without main- 
 taining the trusts, this plain and lawful intent cannot be 
 carried into execution."^ 
 
 ^ Kather to their heirs. fail to perceive it. la the former, 
 
 ' In the Appeal of Jacob T. Wil- the bequest was to children of income 
 
 liams (34 Leg. Int. 257), Chief Justice only for life, irrespective of cover- 
 
 Agnew says : " The difference between ture, and a clear purpose appeared to 
 
 Earp's will and the wills in Yarnall's protect the corpus or entire estate 
 
 and Ogden's Appeals (20 P. F. S.) from the ultimate devises and be- 
 
 was so clearly pointed out in Earp's quests of the testator. In the latter. 
 
 Appeal, it was supposed no one could the intent of the testator, as ascer- 
 
298 A VIEW Of THE LAW OF TRUSTS. 
 
 § 318. In Ashurst's Appeal/ V. E., an unmarried 
 woman, conveyed all her property, real and personal, to 
 trustees in trust, to let or demise the real estate, and invest 
 and keep invested the moneys and personal estate at inte- 
 rest in certain real and personal securities, and the same 
 from time to time to call in, sell, &c., and again invest; col- 
 lect the rents and income, and pay them over as received, 
 and not by way of anticipation, after deducting taxes, &c., 
 into the hands of the said V. E., or her appointee, during 
 her life, if she should remain so long sole and unmarried. 
 But in the event of her marriage, then to pay the net rents 
 and income to the said V. E. or to her appointee, during her 
 life, for her sole and separate use, so that the trust estate 
 should not be liable to the debts, &c., of any husband she 
 may have or marry ; and after her decease, then to and for 
 the only proper use and behoof of such person or persons, 
 and for such estate and estates, and in such sort, manner 
 and form, as the said V. E. by her will should appoint, and 
 in default of appointment, then to and for the only proper 
 use, &c., of such person or persons, and for such estate and 
 estates, and in such sort, manner and form, to whom and as 
 the same would have gone under the intestate laws of 
 Pennsylvania, had she^ the said V. E., died intestate, seized 
 thereof; with authority to the trustees, at any time during 
 the continuance of the trust, to sell absolutely all or any 
 part of the trust property, and convey on ground rent, the 
 proceeds of sale on ground rent to be for the same trusts ; 
 and after paying her for her separate use $1500, the resi- 
 due, and all other moneys to be produced by the sale, to 
 invest,- &c., with power to raise, by mortgage of the pre- 
 
 tained, was to vest the entire estate useful and lawful purpose ajipearing, 
 in fee in one case, and fee tail in the the trusts became executed, and the 
 other, in the beneficiaries, and the life estate legal, as well as the re- 
 trust was intended only as a protec- mainder, and they coalesced under 
 tion during coverture. The trusts for the rule in Shelley's case." 
 coverture having fallen, and no other ' 27 P. F. S. 464. 
 
ACTIVE AND PASSIVE TRUSTS. 299 
 
 mises, $3000, if requested by V. E. in prospect of marriage. 
 After the creation of the trust, V. E. married, her husband 
 then died, and she filed a bill for a conveyance of the 
 trust property to her ; and it was held that she was not 
 entitled to the conveyance, but that the trust continued. 
 The opinion of the Court was delivered by Mr. Justice 
 Sharswood, and we deem it of sufiicient interest to give it 
 almost entire. Referring to Earp's Appeal,^ he says : "The 
 trusts of the will of Robert Earp were in all material par- 
 ticulars identical with those set out in the deed of trust in 
 this case. There, as here, the trust was to collect and pay 
 over the rents and income of the estate to the beneficiaries 
 for life, with an ultimate disposition of the corpus of the 
 estate itself to such persons as would be entitled under the 
 intestate laws of the Commonwealth. There was a clear 
 distinction in the language and intention of the testator 
 between the income and the estate itself. It was necessary, 
 in order to carry the intention into eff'ect, that the trust 
 should be an active one, not an executed use under the 
 statute. Most especially was this true as to the personalty, 
 which would otherwise be exposed to risk in the possession 
 of the life-tenant, against which the testator obviously in- 
 tended to provide. There was in that case interposed, as 
 here, a power of appointment by will, but that evidently 
 did not affect the question. The life-estate was then an 
 equitable one, and the remainder to the heirs or persons 
 entitled under the intestate law was an executed use, a 
 legal estate. The two estates did not coalesce under the 
 operation of the rule in Shelley's case. It was not a case 
 in which the entire equitable fee or absolute estate was in 
 the beneficiary, where the continuance of the trust is no 
 longer necessary, and ought therefore to end at the volition 
 of the cestui que trust. In the deed now before us, the trust 
 was ' to let and demise the real estate, and to invest and 
 
 125P. F. S. 119. 
 
300 A VIEW OF THE LAW OF TRUSTS. 
 
 keep invested the personal estate ; to collect and receive 
 the rents and income, and to pay over the same when and 
 as received, and not by anticipation, after deducting all 
 taxes and necessary repairs, and all reasonable costs, 
 charges and expenses attendant upon the execution of the 
 trust, into the hands of V. E. for and during all the term of 
 her natural life.' Then, with a provision to protect it from 
 the debts or control of any husband whom she might after- 
 wards marry, and for a power of appointment by will, ' in 
 trust to the only proper use, benefit and behoof of such 
 person or persons, and for such estate and estates, and in 
 such sort, manner and form, to whom and as the same would 
 have gone under the intestate laws of Pennsylvania, had 
 she, the said V. E., died intestate, seized thereof.' Here, 
 then, as in Earp's Appeal, the corpus of the estate is fully 
 and distinctly vested in the trustees, and put under their 
 control. The trust for V. E. is only of the income, and her 
 interest in that is only for life. The principal is given over 
 to thQ persons who would be entitled to it under the intes- 
 tate law. Although a provision is introduced to guard the 
 income payable to V. E. from the control, debts or engage- 
 ments of her husband, it was not a trust for coverture under 
 any of the decided laws. In Megargee v. Naglee (14 P. F. 
 S. 216), and in the cases' cited by the present Chief 
 Justice in that case, in support of the position that a trust 
 for coverture ceases on discoverture, it will be found that in 
 all of them the absolute interest or equitable estate lies in 
 the wife, either directly or by the operation of the rule in 
 Shelley's case, where an express estate for life was given. 
 Koenig's Appeal, 7 P. F. S. 352, may look like an ex- 
 ception; but if the opinion in that case by Mr. Justice 
 Strong be carefully examined, it will be seen that the case 
 was ruled by the provisions of the will, that if the feme 
 should survive her husband, the trustee should assign the 
 estate to her absolutely and in fee. This showed clearly 
 
ACTIVE AND PASSIVE TRUSTS. 801 
 
 that the testator raised the trust solely for the purpose of 
 protection against covei'ture. When the coverture ceased, 
 therefore, by a divorce a vinculo, the trust came to an end, 
 just as it certainly would have done by the express words 
 of the will if the husband had died. If the beneficiary be a 
 woman, surely the benefactor can protect her from her 
 own debts and improvidence, as well as against the debts 
 and improvidence of her husband. That he can do this ■ as 
 to a man is beyond question, and no principle or policy re- 
 quires any distinction in this respect between the sexes. It 
 is true that girls are not so often spendthiifts as boys, but 
 they may sometimes be, and if extravagance in female dress 
 continues as it has begun, the fortunes of girls may be as 
 rapidly dissipated in that way as by intemperance, gam- 
 bling and licentiousness in young men. It is hardly neces- 
 sary to add that the rights of creditors not being in ques- 
 tion, a person may make an irrevocable deed of trust of pro- 
 perty for himself for life, with remainder to his children, 
 and the trust be an active one, if so drawn that the entire 
 equitable interest or estate does not vest in the cestui que 
 trust. Such deeds are often executed by young men or 
 women by the advice of judicious friends, and to hold that 
 they can be revoked at pleasure would render such disposi- 
 tions worse than useless." 
 
 § 319. Ash's AppeaP was a case in which B. H., an un- 
 married woman, not in contemplation of marriage, by deed 
 conveyed all her estate to a trustee in trust to hold during 
 her natural life, for her sole and separate use, and "to hold, 
 invest and keep invested the same in the name of the said 
 trustee, either as the same is now invested, or in such other 
 security, by bond or mortgage, or otherwise, as provided by 
 law, as the said trustee shall think expedient, and the net 
 interest, income and dividends thereof from time to time, as 
 1 2 V^eekly Notes 360 ; 30 P. F. S. 497. 
 
302 A VIEW OF THE LAW OF TRUSTS. 
 
 they shall accrue, to receive and pay over to the said E. 11. 
 for and during her natural life, upon her own proper receipt, 
 and to and for her own sole and separate use and behoof, 
 whether covert or sole, but in such way and manner that 
 the same shall not be answerable for, nor in any manner 
 liable to the control or to the debts, contracts or engage- 
 ments of any husband or husbands she, the said E. H., may 
 hereafter have or take, nor be liable to any charge, incum- 
 brance, assignment, or anticipation of her, the said E. H., 
 ■whether sole or covert, nor be applied to any other purpose 
 or object than the sole and separate use of the said E. H. ; 
 it heing expressly provided, in case the said E. H. shall inter- 
 marry with any husband and survive him, that the trust 
 hereby created for her sole and separate use shall not 
 thereby determine, but shall continue during such time as 
 she may remain sole and discovert, and during any future 
 coverture of her, the said E. H., in the same way and man- 
 ner as if such disooverture and survivorship had never taken 
 place ; . . . and from and immediately after the death of 
 the said E. H., then upon ih\S: further trust, to hold the said 
 trust estate to and for such parties and persons, and for such 
 uses, intents, purposes and estates therein, as the said E. H. 
 may by last will and testament appoint, and in default of 
 such appointment, for the use of her children (or child, if 
 only one), who shall be living at the time of her death, and 
 the issue, if any, of any of her children (or child, if only 
 one), who may be then deceased, their heirs, executors and 
 administrators, as tenants in common, such issue of deceased 
 children, if any, to take the shares which their parents would 
 have respectively taken if living, and any husband whom 
 the said E. H. may leave surviving her to be entitled to a 
 child's share in common with any such child or children, or 
 issue of a deceased child, as aforesaid. And if there should 
 be no issue of the said E. H. living at the time of her death, 
 then upon trust from and after the death of the said E. H., 
 
ACTIVE AND PASSIVE TRUSTS. 303 
 
 as to the real estate to and for the use of her right heirs 
 forever, and as to the personal estate to and for the use of 
 such person or persons as would hy the laws of Pennsyl- 
 vania have been entitled thereto, if she had died unmarried, 
 intestate, and without issue." E. li. afterwards married 
 and had children, and upon bill filed by the husband and 
 wife against the trustee for a reconveyance, it was held that 
 the trust was an active one during the life of B. H., and 
 gave to her a life estate, with remainder over to her living 
 children, and not to the heirs general, or issue. The life 
 estate and remainder, therefore, did not coalesce. 
 
 § 320. In Phillips' Appeal,-^ a trust created by a testator 
 was held to be an active one, " because the trust fund was 
 to be invested by the executors in a good and safe manner, 
 and to be held by them in trust for the beneficiaries named 
 for their respective lives, so that the same should not be liahle 
 for their debts or engagements ; the income was to be paid 
 to the daughters personally during coverture, and when any 
 one of the beneficiaries should die, the share of that one was 
 to vest in his child or children in equal shares ;" the court 
 remarking that " these characteristics of the trust evidence 
 an active trust, for the purpose of the testator could not be 
 fulfilled without the possession and control of the executors 
 over the invested fund." 
 
 § 321. In Cridland's Estate,^ there was a trust for the 
 sole and separate use of an unmarried woman, but the tes- 
 tatrix also directed that the share of each of her children, 
 " both as respects the income and principal, shall be so re- 
 ceived, held and paid over, as not to be in any way subject, 
 responsible, or liable to existing or future debts, contracts 
 or engagements," and so that the same shall not be accessi- 
 ble to them by sale, pledge, assignment, mortgage, or other- 
 
 1 33 Leg. Int. 213 ; s. c, 2 Weekly ^ 7 Phila. 58, per Ludlow, J. 
 Notes 483 ; 30 P. P. S. 472. 
 
304 A VIEW OF THE LAW OF TRUSTS. 
 
 wise, " so that no creditor, or assignee, or any of them shall 
 be able to take, seize or enjoy the same by any process, 
 legal or otherwise ;" and the court held that, independently 
 of the separate use clause, the testatrix intended to protect 
 her daughter against herself, and not merely against any 
 husband she might marry ; that the trust was an active one 
 as to both sons and daughters, and it was therefore sus- 
 tained. 
 
 § 322. In Deibert's Appeal,^ a testator provided as fol- 
 lows : " And concerning my worldly goods and property ; 
 . . . after my decease, each of my two children shall have 
 $100, and of the remainder they shall yearly draw the in- 
 terest; or, if my appointed trustee shall see proper, he shall 
 give them part of the principal sum. I appoint my brother 
 R. D. as trustee over my goods, and he shall hold all moneys 
 in hand, and take care of the same and interest." And it 
 was held that the trust was an active one, and must be so 
 upheld to eifectuate the intention of the testator that the 
 children should not have the Avhole of the principal sum, 
 but only such part as the trustee saw fit. 
 
 § 323. In Deibert's Appeal,^ property Avas devised in trust 
 " to remain in the care and management of the executors 
 and the survivor of them, for and during the natural lives 
 of the daughters respectively, to receive the rents and to 
 continue at interest and invest the personal estate in some 
 of the personal stocks or securities, producing an interest 
 or dividend, and to receive the interest and dividend, and 
 from time to time to pay over the same to the daughters, to 
 whom the same may belong, into their own hands, for their 
 sole and separate use, without being subject or liable to the 
 debts of their husbands," &c. These were held to be acti^'e 
 duties, and the trust an active one. In Keene's Estate,^ a 
 
 ' 28 P. F. S. 296. 3 31 P. F. S. 133. 
 
 « 34 Leg. Int. 195. 
 
ACTIVE AND PASSIVE TRUSTS. 305 
 
 testator bequeathed to his niece E. K. the sum of $30,000, 
 " to be invested in ground rents, or bonds and mortgages on 
 real estate, the interest to be paid to her only, or her power 
 of attorney, whether married or single, during her life, and 
 after her death to her children, if any, absolutely ; but if 
 she dies without issue, the principal to go to her brothers, 
 H. and J.," ..." the interest only for their uses ; but to 
 their children, lawful issue, absolutely. But if she marries 
 without my consent, or after my death, to any person whom 
 I did not approve during my life, then this devise shall be 
 null and void, and she shall only receive $10,000, subject to 
 the same investment of ground rents, or bond and mortgage, 
 the interest only to be paid to her alone, or her power of at- 
 torney, and after her death to her children absolutely ;" and 
 this was held to be an active trust, to invest and pay over 
 the interest only to E. K. for life, and the principal to her 
 children after her death, and if none, then to the persons 
 named to take in that contingency ; the court remarking that 
 " the trust in the executors was necessary to effectuate this 
 purpose, and the corpus of the estate being in them, charged 
 with the duty of investment and payment, it was necessarily 
 active." 
 
 § 324. In Delbert's Appeal,^ the court lays down the rule 
 that " where an active trust is created, and the intent ap- 
 pears to be that it shall continue for a life, or other limited 
 period, without regard to coverture, then the trust is sus- 
 tained." In the appeal of Jacob T. Williams,'-^ Agnew, C. 
 J., states the principle as having been announced in Bar- 
 nett's Appeal,^ and reannounced in Dodson v. Ball,* Wells v. 
 McCall,^ Yarnall's Appeal,^ Ogden's Appeal,^ and Ashurst's 
 Appeal,^ that " when an active trust is created, to give effect 
 
 1 34 Leg. Int. 195, ante, p. 304. » H P. F. S. 312. 
 
 2 34 Leg. Int. 257. ' 20 P. F. S. 339. 
 ' 10 Wr. 392. ' Ibid. 507. 
 
 - 10 P. F. S. 496, 497. ' 27 P. F. S. 464. 
 
 20 
 
306 A VIEW OP THE LAW OF TRUSTS. 
 
 to a well-defined lawful purpose of a testator in relation to 
 his family, the trust must be sustained, whether the cestui 
 que trust be sui juris or not." And an active trust having 
 no longer a proper object to serve, will cease when its only, 
 purpose has come to an end. 
 
 § 325. In Dodson v. BalP (the facts of which are stated 
 ante, page 269), the court treats the trust for life as simply 
 passive, and the terms in which the remainder is limited as 
 equivalent to the word " heirs," so that the particular estate 
 and that in remainder, being both legal, coalesced, and there 
 being, as they hold, no proper or useful purpose to uphold 
 the trust, it consequently fell, when the cestui que trust be- 
 came discovert, and she was seized of an estate in fee 
 simple. It does not seem so clear that the trust for life was 
 simply passive, as the trustees were given large discretion- 
 ary powers, the exercise of which involved the performance 
 of important active duties. They were given power, at any 
 time, " should they think it most advisable for the benefit 
 and advantage" of the life tenant, to sell and dispose of the 
 trust premises, or any part thereof, either at public or pri- 
 vate sale, and the moneys arising therefrom to reinvest in 
 other property, either real or personal, in trust for the same 
 uses, &c. Would not these active duties, depending as they 
 did upon the exercise of uncontrolled discretionary power 
 in the trustees, bring this case within the category of active 
 trusts ? In Girard Co. v. Chambers^ (not to cite other cases), 
 where trustees were to receive and pay over the income, and 
 were also empowered to sell the trust estate and reinvest in other 
 securities, and the income held upon the same trusts, the court 
 say, "It is certain the trust vested in the company is an active 
 one, and vests the legal estate during the life of the cestui 
 que trust in the trustees. The trustees are to collect and 
 receive the rents, issues and interest, and pay over to the 
 
 1 10 p. F. S. 492. ' 10 Wr. 487. 
 
ACTIVE AND PASSIVE TRUSTS. 307 
 
 cestui que trust during his life only the net, not the gross 
 income, and they are invested with large powers which can 
 only he exercised ly them as the holders and legal owners of 
 the trust fund;" and these "large powers" would appear to 
 he none other than those to sell and reinvest. The court, 
 however, in Dodson v. Ball, as to these powers given in 
 that case (Dodson v. Ball), say, "nor is the power of sale 
 to convert and reinvest on the same trusts sufficient to pre- 
 vent the trust from falling in such a case. It was expressed 
 to he for her own benefit, and was hut an incident to protect the 
 trust-property during coverture. Now, being sui juris, the 
 provision is not needed." That the provision was expressed 
 to be for her own benefit would scarcely seem a reason why 
 the trust should fall, as trusts are usually created for the 
 benefit of the cestui que trust, and this very quality, as in the 
 case of married women, those in contemplation of marriage, 
 and spendthrift children, oftentimes alone sustains them; 
 and as to the other reason given, viz., that the provision 
 was but an incident to protect the trust-property during 
 coverture, this would seem to be answered by the fact that 
 the cestui que trust Avas " a single woman and having no mar- 
 riage in view" when she created the trust, and in point of 
 fact was not married until two years and a half afterwards. 
 It was not a trust created for the protection of a married 
 woman, or one in contemplation of marriage. It is true the 
 court say that " the only useful purpose visible in the deed 
 was the preservation of her property to her sole use, during 
 a coverture that might take place (it being before the Act 
 of 1848), and its transmission by will or descent if she died 
 during coverture." But this is not the purpose which pro- 
 tects a trust for a single woman. It must be for the pro- 
 tection of one in immediate contemplation of marriage, and 
 then if she marries the contemplated husband and survives 
 him, upon his death the trust ceases. This is too well set- 
 tled to need authority. As to the general proposition that 
 
308 A VIEW OF THE LAW OF TRUSTS. 
 
 the trust was passive, the court cite no authority for this, 
 but assert it as if plain and unquestionable ; and the learned 
 counsel for the appellant, who took the position that it was 
 passive, cited only Smith t. Starr, 3 Wh. 62 ; Hammersley 
 V. Smith, 4 Ibid. 126 ; Steacy v. Rice, 3 C. 75, and Dubs v. 
 Dubs, 7 Ibid. 149. Smith v. Starr was the case of an ab- 
 solute gift to a married woman, and then a direction that 
 the property be held in trust for her separate use, without 
 liability for her husband's contracts, &c., with power of ap- 
 pointment by will ; and the husband died before the wife, 
 liammersley v. Smith was a trust " for the sole use and 
 benefit" of a married woman. Her husband died, and she 
 married again. Steacy v. Rice was a trust for the separate 
 use of a married woman for life, without liability for the 
 debts of the husband. The wife survived the husband. 
 Upon the death of the husband, these were all clearly passive 
 trusts. In Dubs v. Dubs, there was a devise of land in trust 
 for the use of a single woman and her heirs; she not contem- 
 plating marriage, the income to be held in trust for her sole 
 and separate use, free from the control of any husband she 
 may marry, and without power of alienation of the land by 
 herself or husband ; the trustees to give her the annual pro- 
 duce yearly, or at shorter periods, as may be necessary, but 
 not in anticipation. She married and then died intestate, 
 leaving her husband surviving. He claimed curtesy in the 
 land ; and the question in the court below was whether his 
 wife, in her lifetime, during her coverture, was seized of an 
 estate of inheritance, either equitable or legal, in the land. 
 But in the court above this question was entirely avoided, 
 and it was there held that inasmuch as the property was 
 held in trust for the separate use of the wife and her heirs, 
 and she died intestate, it would descend under our intestate 
 laws, which expressly preserved to the husband his right as 
 tenant by the curtesy, to which he would be entitled 
 whether her estate were legal or equitable, and that, there- 
 
ACTIVE AND PASSIVE TRUSTS. 309 
 
 fore, the husband, in this case, was entitled to curtesy, 
 which decides nothing whatever as to whether the life estate 
 were legal or equitable, or the trust an active or passive 
 one. 
 
 § 326. In Harkinson v. Bacon,^ a single woman conveyed 
 real and personal property to a trustee, in trust to pay over 
 the income to herself for her sole and separate use during 
 her natural life, and after her decease, to convey the trust 
 estate to the persons she should by her will direct, limit 
 and appoint, and for want of such direction, limitation and 
 appointment, to convey to the use of her right heirs, with 
 power to the trustees at any time during her life, in 
 their sole discretion, to convey the trust estate to any 
 person or persons whomsoever, in fee, and the proceeds to 
 invest in such securities as they should think proper, to be 
 held upon the same trusts, with power in the cestui que trust 
 to revoke and declare new trusts. The cestui que trust 
 remained a spinster, and it was held that the trust, was 
 executed in her lifetime, and she seized of a fee. The court 
 observe, as to the trusts, that " their purpose was to pro- 
 tect the estate for her separate use in case of marriage, and 
 for nothing else disclosed in the case. She had not only a 
 full power of appointment by will, but a power of revocation, 
 which could be exercised at any time, and if she died with- 
 out a will the estate was to descend to her heirs generally, 
 and not to special or indicated persons by way of purchase. 
 She therefore died seized of a fee." 
 
 ' 34 Les. Int. 306. 
 
310 A VIEW OF THE LAW OF TRUSTS. 
 
 CHAPTER XXXIV. 
 
 TRUSTS FOR MARRIED WOMEN, OR THOSE IN CONTEMPLATION OF 
 
 MARRIAGE. 
 
 For Married Women. 
 
 § 327. A trust for the separate use of a married woman, 
 and one in immediate contemplation of marriage, come 
 within the same rule ; and the trust, though an active one, 
 or what would ordinarily be termed a passive one, is pre- 
 served during the joint lives of the husband and wife, but 
 at his death, she surviving, although expressed to be for her 
 life, having fulfilled its purpose, becomes a naked, dry trust, 
 and falls to the ground.^ Or, as Chief Justice Agnew states 
 the rule as to an active trust ■} "An active trust having no 
 longer a proper object to serve, will cease when its only 
 purpose has come to an end, and this is always so when an 
 estate of inheritance or an absolute estate is put in trust for 
 coverture merely." Thus, in Bush's Appeal,^ there was a 
 trust for a married woman, the trustee to .take and receive 
 her legacy, put it at interest, and pay the interest to her 
 during her life, and after her decease, to pay the prin- 
 cipal to her heirs, share and share alike ; and it was held 
 that on becoming discovert, the legacy vested in the cestui 
 que trust, discharged of the trust, and that she was entitled 
 to have it paid over to her by the trustee. This was an 
 active trust, and expressly for the life of the cestui que trust. 
 In Steacy v. Rice,* there was a devise in trust for the use 
 of a daughter, a married woman, for her separate use during 
 her life, without liability for the debts or being subject to 
 the will or pleasure of her husband ; and after her death, 
 
 ' See ante, p. 247, et seq., and post, ' 9 C. 85. 
 p. 316. * 3 C. 75. 
 
 ' Ap. J. T. Williams, 34 L. Int. 257. 
 
TRUSTS FOR MARRIED WOMEN. 311 
 
 " to her heirs ia fee simple." The daughter outlived her 
 husband, and then conveyed in fee ; and it vpas held that 
 the trust for the daughter existed during coverture, but 
 upon the husband's death, its purpose being satisfied, was 
 at an end, and executed by the statute; that it thus became 
 a legal estate in the daughter, that the remainder was a 
 legal estate, and thus the two had united at the time of the 
 conveyance, and the daughter was then seized of an estate 
 in fee, with, of course, full right to convey.^ Had the trust 
 in this case not been for the protection of a married woman, 
 it would unquestionably have been a passive trust, and 
 forthwith executed, as there was no active duty for the 
 trustee to perform. The real point, however, decided in 
 this aspect of the case, was, not that the trust existed during 
 the life of the husband, for the case did not arise until after 
 his death, but the question was whether the trust was then 
 executed. The law, however, as laid down by the court, 
 that the trust was preserved during the coverture of the 
 daughter for her protection, is the settled law. 
 
 § 328. Megargee v. Naglee^ was the case of a testator 
 who gave real and personal estate to trustees, in trust for 
 his three daughters, one share to M., a married woman, and 
 her heirs, for her sole and separate use ; the trustees in 
 their discretion to set out each daughter's share in sever- 
 alty ; then directed that the personal estate should be 
 invested by the trustees, and the net income paid them for 
 their sole and separate use. The trustees to have the care 
 and management of the real estate, receive the rents, pay 
 the taxes, make all necessary improvements upon the same, 
 and let any portions of the vacant lots upon ground-rent, 
 make deeds, &c., and pay over the residue of the rents and 
 
 ' In this case the opinion of Low- court. See Whichcote v. Lyle, 4 C. 
 rie, J., and not that of Black, J., 87. 
 as reported, is the opinion of the ' 14 P. F. S. 216. 
 
312 A VIEW OF THE LAW OF TRUSTS. 
 
 profits to each of the daughters, to her sole and separate 
 use ; and after her death, for the use of her heirs and legal 
 representatives ; with power of appointment by will, " as 
 fully and effectually as if she were a feme sole and un- 
 married." M.'s share was allotted to her. Her husband 
 died, and she filed a bill for a conveyance from the trustees, 
 and it was held that upon becoming discovert, her estate 
 was absolute, and she was entitled to the conveyance ; upon 
 the ground that when the allotment was made the trust for 
 the management of the estate fell ; that though the trust 
 was an active one, yet there was a gift of the fee in the 
 realty and an absolute estate in the personalty in the first 
 instance ; and a continuance of the special trust after the 
 death of the husband would be at variance with her abso- 
 lute estate, and being no longer necessary for her protec- 
 tion, the trust fell. 
 
 § 329. In Freyvogle v. Hughes,^ a mother conveyed real 
 estate to a trustee in fee, in trust to let and demise the 
 premises, to collect the rents and income, and pay them 
 over to her daughter, a married woman, or to permit her at 
 her option to demise, occupy and enjoy the premises, she 
 paying all necessary taxes and repairs. It was also made 
 the duty of the trustee to make improvements, with the 
 written assent of the daughter, and to sell the property in 
 fee simple or otherwise, with the like assent, and pay over 
 the proceeds of sale to the daughter. The husband died, 
 and the daughter married again. Held that she took in 
 equity a fee simple in the real estate, and became entitled 
 to a conveyance of the legal estate on the death of her 
 first husband ; that the trust for her separate use then 
 ceased, and the second husband was entitled to curtesy. 
 Mr. Justice Strong, delivering the opinion of the court, 
 however, observes, " The deed is very peculiar. While 
 
 ' 6 P. F. S. 228. 
 
TRUSTS FOR MARRIED WOMEN. 616 
 
 it creates a trust, it does not define the extent of the estate 
 conferred upon the cestui que trust. It contains no words 
 of limitation descriptive of her interest; nor does it in 
 terms define her estate as a life interest ; and there is no 
 remainder over after the termination of the estate, whatever 
 it was, granted to her. But the legal estate was conveyed 
 to the trustee expressly in fee simple, and in trust to let 
 and demise the premises," &c. (reciting the trust) . " All 
 this is inconsistent with any estate remaining in the 
 grantor. It is a transfer of the entire profits, not only of 
 a life interest, but of the fee, to the cestui que trust, without 
 any words restricting her interest to a life estate. Had 
 the assurance been by will and not by deed, there could be 
 no doubt that the general power of disposal would make 
 the estate absolute and entire, no limited interest being 
 expressly given. Here, however, the grant was by deed, 
 but the whole estate passed out of the grantor by the ex- 
 press terms of the deed, and the only trust declared was 
 for the daughter." 
 
 § 330. In Harrison v. Brolaskey,^ a trustee under a deed 
 in the nature of a declaration of trust covenanted to invest 
 a fund in his name, and with the assent of M. H., the cestui 
 que trust, a married woman, during her life, change invest- 
 ments at his discretion, and pay over and apply the income 
 to such persons and for such purposes as she from time to 
 time, notwithstanding her coverture, might direct, and in 
 default of such direction, into her own hands, for her sole 
 and separate use, with restrictions against her present or 
 any future husband, and upon her death, to hold the fund 
 for such purposes as she should by her will appoint, then, 
 in trvist, " for all such persons or person as would by the 
 intestate laws of Pennsylvania, at the decease of the said 
 M., have become entitled to the personal estate if her said 
 
 1 8 H. 299. 
 
314 A YIEW OF THE LAW OF TRUSTS. 
 
 husband, or any future husband, had died during her life- 
 time ;" with power to dispose of a certain part of the fund 
 during her lifetime, but the remaining part in any event to 
 be entirely governed by and subject to the trust, and not 
 t« be subject to the power given over the said part, which 
 she was given power to dispose of. There was no express 
 limitation of a life estate to M., and it was held per Lowrie, 
 J., that though the trust was preserved during the life 
 of the husband, in order to preserve it from him, yet upon 
 his death it ceased, and M. took the fund absolutely. The 
 coui-t saying, in reference to the fund, " The whole profit of 
 it is hers, she may dispose of it by will, and if she die in- 
 testate it is to go to her representatives. These rights in- 
 dicate an absolute estate, and such, in equity, it was, and 
 such it was at law, with us, unless there was some sufficient 
 reason for preserving the distinction between the legal and 
 the equitable title. It is preserved during the life of the hus- 
 band to preserve it from him. But when he is dead, she 
 is freed from the law of her husband, and stands sui Juris, 
 and has a right to demand the control of what in equity is 
 absolutely hers. Restraints upon an absolute title are not 
 allowed except for good and apparent reasons. No one 
 would doubt these principles as applied to an estate in 
 trust for a man ; and the law has no different rules for a 
 woman who is unmarried. When this plaintiff -became sole 
 she had a right to demand and receive the trust funds, be- 
 cause the entire equitable title was hers." 
 
 In Contemplation of Marriage. 
 
 § 331. In the case of gifts to Sifeme sole, or to trustees, in 
 trust for a, feme sole, to her separate use, free from the con- 
 trol of any future husband, and not subject to his debts or 
 disposition, such restraints are illegal and void unless they 
 relate to settlements made in immediate contemplation of 
 
TRUSTS FOR MARRIED WOMEN. 
 
 315 
 
 marriage.^ " Whatever may be tlie rule in the English 
 courts," says Mr. Justice Strong,^ " it is here too well es- 
 tablished to be disturbed by anything else than a legislative 
 enactment, that a separate use for a woman cannot be cre- 
 ated unless she is covert, or unless in immediate contempla- 
 tion of her marriage."* But in these cases it is immaterial 
 whether the trust be to pay a married woman, or feme sole 
 in contemplation of marriage, the profits, or to permit her to 
 receive them, it being necessary to a separate provision that 
 the legal estate should remain in the trustees, to prevent 
 the husband from taking the profits, and defeating the very 
 object of the conveyance.* In either case, however, the 
 trust would cease on the death of the husband.'^ 
 
 § 332. A trust then will be supported notwithstanding 
 
 > Smith V. Starr, 3 Wh. 67 ; Kay w. 
 Soates, 1 Wr. 39. See 'House v. Spear, 
 1 Weekly Notes 34. 
 
 ' McBride v. Smyth, 4 P. F. S. 245. 
 
 ' But see Ashurst's Appeal, 27 P. 
 P. S. 464 ; ante, p. 298. In this ease the 
 court sustained an active trust in 
 favor of an unmarried woman, who 
 afterwards married, and her husband 
 died, leaving her surviving ; and Mr. 
 Justice Sharswood, delivering the 
 opinion of the_ court, thus concludes 
 the opinion : " If the beneficiary be a 
 woman, surely the benefactor can pro- 
 tect her from her own debts and im- 
 providence, as well as against the 
 debts and improvidence of her hus- 
 band. That he can do this as to a 
 man is beyond question, and no prin- 
 ciple or policy requires any distinction 
 in this respect between the sexes. It 
 is true that girls are not so often 
 spendthrifts as boys, but they may 
 sometimes be, and if extravagance in 
 female dress continues as it Jias he- 
 gun, the fortunes of girls may be as 
 
 rapidly dissipated in that way as by 
 intemperance, gambling and licen- 
 tiousness in young men. It is hardly 
 necessary to add that the right of 
 creditors not being in question, a 
 person may make an irrevocable deed 
 of trust of property for himself for 
 life, with remainder to his children, 
 and the trust be an active one, if so 
 drawn that the entire equitable inter- 
 est or estate does not vest in the ces- 
 tui que trust. Such deeds are often 
 executed by young men or women by 
 the advice of judicious friends, and to 
 hold that they can be revoked at 
 pleasure would render such disposi- 
 tions worse than useless." 
 
 * Lancaster v. Dolan, 1 R. 231 ; Pul- 
 len V. Rianhard, 1 Wh. 520 ; Barnett's 
 Appeal, 10 Wr. 399. 
 
 5 Smith V. Starr, 3 Wh. 66 ; Harri- 
 son V. Brolaskey, 8 II. 302 ; Kuhn v. 
 Newman, 2 C. 232 ; Steaoy v. Rice, 3 
 C. 81, per Black, J. ; Bush's Appeal, 
 9 C. 85. 
 
316 A VIEW OF THE LAW OF TRUSTS. 
 
 the cestui que trust is a feme sole, provided it be created in 
 immediate contemplation of marriage.^ By the term imme- 
 diate contemplation of marriage is meant one presently in 
 vievF of the donor, and to take place in a short time after 
 the instrument is to take effect. It must be in contempla- 
 tion of marriage with a particular person.^ The fact that 
 the trust was created in immediate contemplation of mar- 
 riage need not appear in the instrument creating the trust.' 
 The creation of the trust constitutes the evidence of the 
 fact being in the contemplation of the donor or devisor, and 
 when this is followed within a reasonable time by the con- 
 summation of the marriage, it concludes the proof.* And 
 when a. feme sole conveys her estate in trust for herself upon 
 marriage, without a recital of the particular marriage about 
 to take place, the very fact that one sui juris thus limits her 
 own power, upon marriage, affords a strong presumption that 
 a speedy marriage is intended.^ In the case of a trust for 
 coverture, a special trust falls where no marriage is in imme- 
 diate contemplation, or, where there is a marriage, upon the 
 death of the husband;' or upon a divorce of the parties 
 a vinculo matrimonii^ Perhaps a reason for a fall of this 
 kind of trust is that the donor having expressed coverture 
 as its piu-pose, no other intent is presumed. E.vpressio 
 iininus est exclusio alterius} Where the trust falls on the 
 termination of the coverture it is not revived by a second 
 marriage, such marriage not being in immediate contempla- 
 tion.^ 
 
 ' Wells V. MoCall, 14 P. F. S. 214 ; u. Brolaskey, 8 H. 302 ; Kuhn v. New- 
 Springer V. Arandel, 14 P. F. S. 223. man, 2 C. 232 ; Steaoy u. Rice, 3 C. 
 
 ^ Wells V. McCall, snpi-a ; Ilam- 81, per Black, J. 
 
 mersley v. Smith, 4 Wh. 126. ' Koenig's Appeal, 7 P. F. S. 352. 
 
 ^ Wells V. MoCall, supra. * Earp's Appeal, supra, per Agnew, 
 
 * Wells V. MoCall, supra; Springer C. J. 
 
 D. Arundel, SH^ra. 'Wells v. McCall, supra; Earp's 
 
 ' Wells V. McCall, supra. Appeal, supra; Freyvogle r. Hughes, 
 
 « Earp's Appeal, 25 P. F. S. 124 ; 6 P. F. S. 228. 
 Smith V. Starr, 3 Wh. 66 ; Harrison 
 
TRUSTS FOR MARRIED WOMEN. SI 7 
 
 § 333. In Wells v. McCall,^ a testator gave real and per- 
 sonal estate to trustees " for the sole use and benefit of" a 
 feme sole, " whether she be married or single, free from any 
 debt, control or liability of any husband, and under this re- 
 striction, subject to her direction and disposition during her 
 life, and after her death subject to her last will and testa- 
 ment." The cestui que trust shortly after the death of the 
 testator married, and with her husband brought a bill, the 
 object of which was to obtain possession of the trust pro- 
 perty on the ground that the trust attempted to be created 
 was inoperative. An answer to the bill alleged that there 
 had been a mutual engagement between the parties to marry 
 at, and for several years before, the making and republistung 
 of the will, the marriage to be solemnized upon the testa- 
 tor's death ; that this was known to the testator, who pro- 
 vided the trusts in contemplation of this marriage ; and the 
 trust was denied to be inoperative and' void. The trust was 
 held to be an active and operative one, on the ground that 
 it was created in immediate contemplation of marriage. In 
 Springer v. Arundel,^ a testatrix gave real and personal 
 estate to a trustee for the sole and separate use of M., an 
 adopted daughter ; the trustee to collect the rents and in- 
 come, and after paying taxes, &c., to pay the income to M. 
 for her sole and separate use, during her life, without control, 
 &c., of any husband she may take, or liability for his debts 
 and engagements ; or, at her option, to permit and suffer 
 her to let, demise, manage, direct and receive the rents, in- 
 comes, &c., for her own sole and separate use during the 
 term aforesaid, without liability to the debts and engage- 
 ments of any husband she may take, and upon her decease 
 to convey and pay over the estate real and personal to such 
 person or persons as she should, by her will, direct and ap- 
 point to take and receive the same ; and in default of ap- 
 pointment, then to such child or children as she may have 
 ' 14 P. F. S. 207. ^WP. F. S. 218. 
 
318 A VIEW OF THE LAW OF TRUSTS. 
 
 at her death. The will was executed twenty-three days 
 before the death of the testatrix, and M. married two days 
 after her death. Held that the will created an active and 
 operative trust for M. for life, with remainder to her chil- 
 dren, who, in default of an appointment, would take as pur- 
 chasei's and not by descent. And the Court add : " In such 
 case, where an express estate for life is given, and the re- 
 mainder is not to heirs or issue generally, a power of ap- 
 pointment will not enlarge the estate to a fee." And that 
 under the circumstances of this case the trust created for 
 M. was plainly in contemplation of marriage. That as 
 stated in Wells v. McCall,^ the creation of the trust consti- 
 tutes the evidence of the fact of the marriage being in con- 
 templation of the devisor, and this being followed in so 
 short a time by the consummation of the marriage concludes 
 the proof. 
 
 •1 14 P. P. S. 215. 
 
EFFECT OF A POWER OF APPOINTMENT. 319 
 
 CHAPTER XXXV. 
 
 EFFECT OF A POWER OF APPOINTMENT. 
 
 § 334. Where an estate is given to a person generally 
 or indefinitely with a power of disposition, it carries a fee ; 
 but when the testator gives to the first taker an estate for 
 life only, by certain and express words, and annexes to it a 
 power of disposal of the reversion, in that particular and 
 special case, and that only, the devisee for life will not take 
 an estate in fee, notwithstanding the distinct and naked gift 
 of a power of disposition of the reversion. In that case, 
 the express limitation for life will control the operation of 
 the power, and prevent it from enlarging the estate to a 
 fee -^ oi", as the rule is stated by Gibson, C. J., applying it 
 to personal property : " It is an undoubted rule that the 
 bequest of a general power of disposal carries the absolute, 
 property wherever a limited interest is not given."^ Again 
 he says : " The implication of absolute ownership from a 
 general power of disposal may be rebutted by the express 
 gift of a lesser interest which is inconsistent with it."^ And 
 still again : " In general, the bequest of a legacy to be at 
 the disposal of the legatee is a bequest of the absolute in- 
 terest ; but a power of disposition at death, engrafted on an 
 express limitation for the life of the legatee, will not en- 
 large his interest by implication against the express inten- 
 tion of the testator."* A general power of appointment is, 
 in regard to the estates that may be created by force of it, 
 
 ' Girard Co. v. Chambers, 10 "Wr. Ralston v. W^aln, 8 Wr. 279 ; Dodson 
 
 490 ; Morris v. Phaler, 1 Watts 390 ; v. Ball, 10 P. F. S. 497 ; Appeal of 
 
 HessD. Hess, 5 Watts 191 ; Flintham's Jacob T. Williams, 34 Leg. Int. 257. 
 
 Appeal, 11 S. & R. 19 ; Smith u. Starr, ' Morris v. Phaler, supra. 
 
 3 Wh. 66; Anderson v. Dawson, 15 ^ Hess v. Hess, supra. 
 
 Ves. Jr. 582; Hanson v. Miller, 14 * Flintham's Appeal, supra; see 
 
 Simons 22 ; Jackson v. Robins, 16 Girard Co. v. Chambers, supra. 
 Johns. Rep. 588 ; 4 Kent's Com. 535 ; 
 
320 A VIEW OF THE LAW OF TRUSTS. 
 
 tantamount to a limitation in fee, not merely because it 
 enables the donee to limit a fee, which a particular power 
 may also do, but because it enables him to give the fee to 
 whomsoever he pleases. He has an absolute disposing 
 power over the estate, and may bring it into the market 
 whenever his necessities or wishes lead him to do so.^ Such 
 a power, being a principal attribute of ownership, necessarily 
 implies the existence of it wherever the implication is not 
 rebutted by the bequest of a special interest inconsistent 
 with it.^ Thus, in the case of a devise to C, a married 
 woman, absolutely, but to be held by a trustee for her sepa- 
 rate use, without liability to the contracts or control of her 
 husband, with power of appointment by will, and in default 
 of appointment, then over to her daughter R., and the hus- 
 band died, it was held that C. thereupon took an absolute 
 estate in fee, which she could dispose of in her lifetime, and 
 this upon the ground that the estate was given to her gener- 
 ally, or indefinitely with a power of disposition.^ 
 
 335. In Dodson v. Ball,* Agnew, J., says, "The decisions 
 in all the cases show the undoubted tendency of the judicial 
 mind in this State to follow the true intention of the donor, 
 and whenever he means to limit an estate to the heirs of the 
 life tenant, no matter how his intent is expressed, an estate 
 of inheritance will vest in the tenant for life ; but when he 
 intends his bounty to vest in certain persons, though they 
 may be the same as the heirs at law, the life estate will not 
 be enlarged ; and a power of a^ypointiuenf, whether general or 
 ^feciol, will -not change tliis ruler This is true. In neither 
 case would tli« power of appointment have any effect ; for 
 in both cases the remainder is limited after an estate for 
 life ; and under the rule applicable to the power of appoint- 
 
 1 Lancaster v. Dolan, 1 R. 248. » Smith v. Starr, 3 Wh. 65. 
 
 ' Morris D. Phaler, 1 Watts 390, per < 10 P. F. S. 500. 
 Gibson, C. J. 
 
EFFECT OF A POWER OF APPOINTMENT. 321 
 
 ment, the power would not enlarge the estate. In the first 
 case, however, under the rule in Shelley s case, the life tenant 
 would take a fee ; while in the latter he would not. Again, 
 in the same case, discussing the character in Which those in 
 remainder took, after a limitation for life — in other words, 
 the application of the rule in Shelley's case — he says, "The 
 rule laid down is that when an estate for life only is given, 
 followed by a general power of appointment, and on failure 
 to appoint, to children or special heirs, the power to appoint 
 will not enlarge the estate of the cestui que trust to a fee, 
 and on failure to appoint, the children or special donees in 
 remainder take by purchase from the donor, and not by way 
 of limitation as heirs of the cestui que trust. A limitation to 
 heirs on failure to appoint unquestionably enlarges a life 
 estate to a fee by the union of estates." And m Springer 
 V. Arundel,^ where there was an active trust for the use of 
 an unmarried daughter for life, with power of appointment 
 by will, and in default of appointment to her children living 
 at her death and the issue of deceased children, the same 
 learned judge, after stating that " the will created an active 
 and operative trust for life only," lays down the some- 
 what more definite rule that, " in such c^se, where an ex- 
 press estate for life is given, and the remainder is not to heirs 
 or issue generally, a power of appointment will not enlarge 
 the estate to a fee." And he cites Dodson v. Ball, and "the 
 authorities there cited." These rulings of the learned judge, 
 however, do not seem to affect the original rule as we have 
 stated it ; for, according to that, tke power of appointment 
 does not enlarge the particular estate, wherever it is ex- 
 pressly given /(?r life, without regard to the remainder, and 
 that is as far as these rulings go. What the efl:ect of the 
 power would be if the gift pf an estate were either general 
 or expressly for life, remainder to the heirs, or issue 
 generally, of the life tenant, with a general power of ap- 
 
 1 14 P. F. a 223, 
 21 
 
322 A VIEW OF THE LAW OF TRUSTS. 
 
 pointment, in case the two estates were of difFerent natures, 
 viz., the one equitable and the other legal, and, therefore, 
 did not coalesce ; or, if the gift were general and indefinite 
 as to time, with remainder to children, or to those taking 
 by any other words of purchase, as in the case of Smith v. 
 Starr,^ — these rulings do not determine ; we have but the 
 negative proposition that where the gift is for life, if the 
 remainder is not to heirs, &c., a power of appointment wUl 
 not enlarge the estate to a fee. 
 
 § 336. Blending, however, the effect of a power of ap- 
 pointment with that of the application of the rule in Shel- 
 ley's case, the learned judge impliedly denies the existence 
 of any fixed rule as to the effect of a power of appointment 
 alone; and, discussing the two together, seemingly contends 
 that as to both, the question is one of interpretation only, in 
 seeking for the true intention of the donor. This may be 
 so. Nevertheless, where there is nothing in the will to con- 
 trol, by interpretation, the effect of a gift of an estate gene- 
 rally, with power of disposition, or of an estate expressly for 
 life, with like power, except the character in which those in 
 remainder take, whether as purchasers or as heirs, the rule 
 as to the effect of a power of appointment wholly disre- 
 gards the character of the remainder, and in the former case 
 the donee takes a fee, while in the latter he takes but 
 a life estate. The authorities cited by the learned judge 
 in the discussion of this question certainly show nothing 
 to the contrary. He refers to Anderson v. Dawson, 15 
 Ves. Jr. 532; Ralston v. Wain, 8 Wr. 279; Girard Co. 
 V. Chambers, 10 Wr. 486 ; Physick's Appeal, 14 Wr. 
 128; Nice's Appeal, Id. 143; Harrison v. Brolaskey, 8 H. 
 299; WUliams v. Leech, 4 C. 89 ; Naglee's Appeal, 9 
 Id. 89 ; McKee v. McKinley, Id. 92 ; Price v. Taylor, 4 
 C. 95; and Guthrie's Appeal, 1 Wr. 16. In Andersons. 
 
 ' 3 Wh. 65 ; anU, p. 308. 
 
EFFECT OF A POWER OF APPOINTMENT. 323 
 
 Dawson, there was a trust of a fund to pay the income to a 
 feme sole in contemplation of marriage, to her for her separate 
 use /or life, and after her death, for her intended husband, 
 with power of appointment by will, and in default of ap- 
 pointment, then in trust for her next of kin, their executors 
 and administrators, according to the Statute of Distribu- 
 tions. She became a widow, and it was held that she had only 
 a life estate with a power of disposition by will. The court 
 thus sustained the rule, and they also held that the trust for 
 life, remainder to next of kin, did not give the cestui que 
 trust an absolute estate, saying, "There is a great difference 
 between a limitation to the executors and administrators 
 and a limitation to the next of kin. The former is, as to 
 personal property, the same as a limitation to the right 
 heirs as to real estate ; but a limitation to the next of kin is 
 like a limitation to heirs of a particular description, which 
 would not give the ancestor, having a particular estate, the 
 whole property in the land." In Ralston v. Wain, there 
 were two deeds of trust, and in both, to pay the income to 
 a married woman during her life, for her separate use, with 
 power of appointment by will, and in default of appoint- 
 ment, in one case (that of personalty), for such person or 
 persons as would have been entitled to the same at her 
 decease, as her legal representatives, had she died a widow, 
 under and by virtue of the intestate laws of the State of Penn- 
 sylvania ; and in the other case (that of both realty and 
 personalty), to such person and persons as at her decease 
 shall he her heirs and legal representatives. The husband 
 died; and it was held, in the first case, she took a life estate 
 only, and in the second an absolute estate in fee ; and the 
 decision turned in both cases upon the difference of the lan- 
 guage employed in the limitations over in default of appoint- 
 ment, without regard to the power of appointment itself In 
 neither case had this any effect whatever upon the decision. 
 
32dL A viirw OP the law of trusts. 
 
 In both cases the rule was adhered to. In Girard Co. v. 
 Chambers/ there was a trust during the life of the cestui que 
 trust to receive and pay over income to him, with power of 
 appointment by will, and in default of appointment, to such 
 person for such estates and in such shares as by the laws of 
 the State of Pennsylvania would be entitled to the same if 
 he had died intestate, seized and possessed thereof; with 
 power to the trustee to sell and reinvest. And it was held 
 that the cestui que trust took but the income for life. In this 
 case the rule is discussed at large and maintained. In Phy- 
 sick's Estate, the trust was /or life, with a special power of 
 appointment by will, and in default of appointment to the 
 right heirs of the cestui que trust ; and it was held that, 
 under the rule in Shelley's case, he took a fee ; the power 
 of appointment was special, and did not enter into the con- 
 sideration of the case. In Nice's Appeal, there was no 
 power of appointment, and the question, therefore, did not 
 arise. Harrison v. Brolaskey we have classed among trusts 
 for married women.^ The decision did not turn upon the 
 power of appointment, but was simply mentioned by the 
 court as among the rights given to the life tenant, which 
 went to make up an absolute estate in her.^ In WiUiams v. 
 
 '' In this case there was a devise of of the cestui que trust, with power of 
 
 real and personal estate to a trustee appointment by will, and thus coming 
 
 to receive and pay over the income to within the established principle, 
 
 the cestui que trust, and upon his de- ^ Ante, p. 313. 
 
 cease to convey the estate as he, by " It is true, in Girard Co. v. Cham- 
 
 his will, should appoint ; and it was bers, 10 Wr. 490, the court, per Read, 
 
 held that the cestui que trust had J., allude to this case as having turned 
 
 nothing more than a life estate in upon the power of appointment, say- 
 
 the income. There was no express ing that if this case cannot be reoon- 
 
 dexise for life, in favor of the cestui ciledwith those in which the rule (as to 
 
 que trust, hat the court say that be- the effeotofapower of appointment) is 
 
 i;ause the trust is an active one, "the asserted, "upon the ground 'that there 
 
 interest of the cestui que trust is at was no express limitation of an estate 
 
 best but a life estate, and this brings for life in the cestui que trust,' it is 
 
 this case within all the decided cases." clearly not the law." But it will be 
 
 This case, therefore, as to this point, found on reference to the case that it 
 
 must be treated as a trust for the life did not turn upon this point. 
 
EFFECT OF A POWER OF APPOINTMENT. 325 
 
 Leech, Naglee's Appeal, McKee v. McKinley, Price v. 
 Taylor and Guthrie's Appeal, there was no power of appoint- 
 ment, and these cases do not, therefore, touch the point. They 
 were cited in reference to tliat portion of the opinion which 
 embraced the application of the rule in Shelley's case. 
 
 § 337. Although this apparent intermingling of two rules or 
 principles of law, which are in themselves entirely distinct, 
 would seem fallacious, yet in Yarnall's AppeaP the same doc- 
 trine is reasserted by the same learned judge. He reiterates 
 that " there is another rule of interpretation perhaps 
 equally well settled that when an estate for life only is 
 given, followed by a general power of appointment, and on 
 failure to appoint to children or to special heirs, the power to 
 appoint will not enlarge the estate of the life-tenant to a 
 fee or fee tail, and the children, or special heirs, as they are 
 termed, take by purchase and not by descent." The rule 
 as to the effect of a gift of an estate either generally, or ex- 
 pressly for life, with a' general power of appointment, and 
 that as to the application of the rule in Shelley's case, we 
 deem to be wholly distinct, each operating independently 
 of the other, and neither, certainly as a general rule, deriv- 
 ing aid from the other. We understand the first-mentioned 
 rule to be that a devise or gift to one generally or indefi- 
 nitely, with a general power of appointment (without re- 
 gard to the character in which those in remainder take, or 
 to the rule in Shelley's case), gives to the cestui que trust a 
 fee in the realty and an absolute estate in the personalty. 
 But if the devise or gift be expressly for life, with a gene- 
 ral power of appointment, the cestui que trust, in like man- 
 ner, Avithout regard to the limitation over in default of 
 appointment, or to the rule in Shelley's case, takes but a 
 life estate in either the realty or personalty.^ And this 
 
 1 20 P. P. S. 342. Wr. 490, where the rule as to the 
 
 "^ See Girard Co. i>. Chambers, 10 effect of a power of appointment is 
 
326 A VIEW OF THE LAW OF TRUSTS. 
 
 because the testator, or donor, has himself so restricted it. 
 So, under the rule in Shelley's case, a devise of realty to one 
 for life, with remainder to his heirs, or other words of limita- 
 tion, would give to the life-tenant a fee ; but if the remain- 
 der were to persons who were to take as purchasers, the 
 life-tenant would take but a life-estate, and this without 
 reference to any power of appointment given or not given 
 to him. 
 
 Donor may Protect Interest of Cestui Que Trust from 
 Liability for his Debts, &c. 
 
 § 338. The donor may protect the interest of the cestui 
 que trust from liability for the debts of the cestui que trust, 
 by directing that the income shall not be liable for the pay- 
 ment of his debts ;^ and he may also protect him against 
 alienation.^ So a benefactor may provide for a friend with- 
 out exposing his bounty to the debts or improvidence of the 
 beneficiary.^ The fact that a conveyance is made to assume 
 the form of a trust, and for the special purpose of keeping 
 a son's creditors at bay, makes nothing against its A^alidity, 
 so far as the latter are concerned, for neither policy nor 
 equity prohibits a parent from making such provision for 
 
 stated and discussed. In Hansen v. der to next of kin (who take as pur- 
 Miller, 14 Simons 22, Vioe-Chan- chasers), could not, neither could the 
 cellor Shadwell says (p. 26) : " The trust for life, with power of appoint- 
 other argument in favor of the lady's ment, have that effect, in accordance 
 claim was founded on the trusts of with the rule appertaining to the ef- 
 the settlement ; I mean the trust feet of a power of appointment. See 
 which gives her power to dispose Girard Co. v. Chambers, 10 Wr. 490. 
 of the fund by her will, and the ^ Fisher v. Taylor, 2 R. 33 ; Girard 
 ultimate trust in favor of her next of Co. v. Chambers, supra; Vaus v. 
 kin. But my opinion is that, as the Parke, 7 W. & S. 19 ; Rife v. Geyer, 
 law now stands, neither of those 9 P. P. S. 395 ; Ashurst v. Given, 
 trusts" (not both combined) " can be 5 W. & S. 333 ; Shankland's Appeal, 
 held to enlarge the interest which she 11 Wr. 113. 
 
 takes under the first trust ;" which " Girard Co. v. Chambers, supra. 
 was to pay her the income during ' Holdship v. Patterson, 7 Watts 
 
 her life. The trust for life, remain- 551. 
 
DONOR MAY PROTECT CESTUI QUE TRUST. 327 
 
 the maintenance and comfort of an insolvent child. On th*. 
 contrary, these trusts are favored and sustained by the 
 law, as suggested by the best feelings of our nature, and 
 doing harm to no one.^ So that it is now the unquestion- 
 able law of this State that a benefactor has the power of 
 thus restricting the enjoyment of his bounty through the 
 medium of a trust, during the life of the beneficiary.^ And 
 it is held that whenever there is a trust of this nature, it is 
 of necessity an active trust, requiring the legal estate to be 
 vested in the trustee.^ If, therefore, the trust would other- 
 wise be confessedly passive, as a trust to permit the cestui 
 que fruit to receive the income for his own use, the 
 insertion of a clause of this kind would render the trust 
 an active one. In the case of Fisher v. Taylor* a tes- 
 tator directed his executors to purchase a tract of land, to 
 be conveyed to them in trust for his son, he to have the 
 rents, issues and profits thereof, but the same not to be 
 liable to any debts contracted, or which may be contracted, 
 by the son, and at his death, the land to vest in the heirs 
 of his body in fee, and if he should die without heirs of his 
 body, then the land to vest in the testator's right heirs. 
 The life estate of the son was sold under a judgment 
 against him, and purchased by the plaintiff, who thereupon 
 brought ejectment; and it was held that the son had no 
 life estate in the land, nor any interest subject to be sold 
 for the payment of his debts. That the benefit he derived 
 under the will of his father was merely the right of receiv- 
 ing from the trustees the rents and profits of the premises, 
 to. the reception of which rents and profits the trustees 
 were in the first place entitled, for the purpose of fulfilling 
 the trust. That the trust was an active one. That it was 
 
 / 
 
 ' Eyrick v. Hetrick, 1 H. 491; 'Rife v. Geyer, supra; Tisher d. 
 
 Barnett's Appeal, 10 Wr. 401. Taylor, 2 R. 33. 
 
 " Rife V. Geyer, 9 P. F. S. 395, per * 2 R. 33. 
 Sharswood, J. 
 
328 A VIEW OF THE LAW OP TRUSTS. 
 
 -jiecessary the executors should take the legal estate for the 
 purposes of the trust, in order to give effect to the testa- 
 tor's intention, which was that his son should enjoy the 
 rents, issues and profits of the land during his life, in such 
 manner that they should not be subject to be sold for the 
 payment of his debts. That this entitled the executors to 
 use and occupy the land, to let it, or have it tilled and 
 worked, so as to enable them to comply with the disposition 
 of the testator in regard to the application of the rents, 
 issues and profits to his son. The Court say, " A man may 
 undoubtedly so dispose of his land as to secure to the 
 object of his bounty, and to him exclusively, the annual 
 profits. The mode in which he accomplishes such a pur- 
 pose is by creating a trust estate, explicitly designating the 
 uses and defining the powers of the trustees." 
 
 § 339. In Rife v. Geyer,'' a testator devised real estate to 
 a trustee in fee, in trust, to let and devise the same, to re- 
 cover and- receive the rents and income thereof, and pay 
 them over to his son, or at his option to permit and suffer 
 him to let, demise, occupy and enjoy the estate, and receive 
 and take the income thereof " during all the term of his 
 natural life, for his own separate use, and so the same shall 
 not be in the power, or liable to the debts, control or 
 engagements" of the said son, he paying all the taxes 
 thereon, and all necessary repairs and improvements 
 thereon ; and after the son's death, then to hold the estate 
 " in trust, to and for the only proper use, benefit and behoof 
 of the heirs and legal representatives" of the son, " their 
 heirs and assigns forever." Held to be an equitable , estate 
 for life in the son, with a legal contingent remainder in fee 
 to his he^rs and legal representatives under the intestate 
 laws, and that the rule in Shelley's case had no application. 
 The trust was declared to be an active one during the life 
 
 ' 9 P. F. s. 393. 
 
DONOR MAY PROTECT CESTUI QUE TRUST. 329 
 
 of the son, because this was necessary in order to protect 
 the estate from his debts and engagements. And it is laid 
 down as a general rule that whenever it is necessary for 
 the accomplishment of any object of the creator of the trust 
 that the legal estate should remain in the trustee, then the 
 trust is a special, active one.^ And Mr. Justice Sharswood, 
 delivering the opinion of the Court, further says the true 
 test is whether a court of equity in Pennsylvania would de- 
 cree a conveyance of the legal title. 
 
 § 340. In Hornitz v. Norris,^ a testator devised real 
 estate to trustees, to receive the income, and after paying 
 charges, to apply the money for the maintenance, support 
 and benefit of a son during life, in such way and manner 
 that it should not be subject to the payment of his debts, 
 and so that no creditor should ever be able to take it. 
 Upon the death of the son, his children were to take the 
 estate devised to him, in such proportions as he should 
 appoint by will. In the exercise of this power he devised 
 the estate, including rents accrued but not paid to the trus- 
 tees at the time of his death, to trustees of his wife for life, 
 as to a part, and for the benefit of his children as to the re- 
 sidue ; and it was held that he had no ownership in the 
 income not received, whether due and payable or only 
 accruing at his death, and as he had no power apart from 
 ownership over the income, that not received at the time of 
 his death could go neither to his executors nor to the trus- 
 tees appointed by him in his attempt to execute the power. 
 
 § 341. In Keyser v. Mitchell,^ a testatrix devised real 
 estate to a trustee, to hold upon trust, to collect and receive 
 the rents and income, and after paying taxes, &c., to pay 
 said rent and income, or so much thereof as the trustee 
 
 ' See also Barnett's Appeal, 10 ' 13 Wr. 213. 
 Wr. 399. ' 17 P. F. S. 473. 
 
330 A VIEW OF THE LAW OF TBUSTS. 
 
 might think proper and expedient under all the circum- 
 stances of the case, to and for the maintenance and support 
 of his son C. during all the term of his natural life, with the 
 intent and purpose that the trustee may either pay the in- 
 come, or such portion thereof as he might think proper, into 
 the hands of his son, or disburse the same in such way as to 
 the trustee might seem best for his comfortable suppoi't and 
 maintenance, such payments and disbursements to be, at all 
 times, at the sole and absolute discretion of the trustee. 
 And the testatrix also provided for a contingent disposition 
 of the corpus of the property, also at the discretion of the 
 trustee ; and it was held that although the will contained 
 no prohibition of liability of the income to the debts of the 
 cestui que trust, yet as nothing is given to him excepting at 
 the discretion of the trustee, the income was not liable to 
 attachment under a judgment against the cestui que trust. 
 And Mr. Chief Justice Thompson says : " We cannot but 
 regard this form of trust to be as effectual in guarding a 
 trust and its income against the prodigality of its bene- 
 ficiary, as would be a positive exclusion of creditors in the 
 will of the donor. Where the amount results from the dis- 
 cretion of the trustee, and that discretion is personal, no 
 sum, eo nomine, exists to be attached. It only belongs to 
 the cestui que trust when it is paid, or in some other way 
 made over or set apart to him." 
 
 § 342. In Huber's Appeal,^ a trust was created by a 
 father in favor of his son Jacob, and the question arose 
 whether the accumulated income in the hands of the trustee 
 during the lifetime of Jacob belonged to his estate. It was 
 claimed as his property by his administrator, irrespective of 
 the nature of the estate devised to him : but the Court de- 
 cided, upon the authority of Horwitz v. Norris, and Keyser 
 V. Mitchell, against the claim. In this case the estate was 
 
 1 30 P. F. S. 348 ; ante, p. 279. 
 
DONOR MAY PROTECT CESTUI QUE TRUST. 331 
 
 given directly to the son for his life, and afterwards the testa- 
 tor directed that it should be and remain in the care and 
 management of his executors as his trustees, the interest 
 and income to be paid him during his life ; or to be applied 
 by them, at their option, for his support and maintenance, 
 so that the same shall not be liable to his disposal or sub- 
 ject to the payment of his debts. There is strong reason 
 for the opinion here that the whole income of the estate 
 during the son's life belonged to him, though he could him- 
 self enjoy only so much of it as his trustees permitted, and, 
 as it was not subject to alienation by him, and was to be 
 protected from his creditors, would it not go to his adminis- 
 trators either clothed or not clothed with the protection 
 against his creditors ? And, though it was not to be liable 
 to his disposal, did that not mean his disposal to take effect 
 during his lifetime ? And, if so, why could he not have 
 disposed of it by will, either subject, or not subject, to the 
 payment of his debts, one or the other? In this case, 
 Agnew, C. J., says : " I shall not dissent, but I doubt as to 
 the income accumulated in the lifetime of Jacob Gaul. 
 The question is one oi ownership, which the will itself decides 
 by the gift of the corpus directly to him for life, which 
 distinguishes this case from those cited ; while the control 
 over the income by the trustees was merely to prevent its 
 diversion, either by Jacob or his creditors, in his lifetime. 
 At his death his ownership carried it into his estate for 
 distribution." 
 
332 A VIEW OF THE LAW OF TRUSTS. 
 
 CHAPTER XXXVI. 
 
 POWERS OF CESTUI QUE TRUST, BEING MARRIED, OR IN CONTEM- 
 PLATION OF MARRIAGE. 
 
 § 343. The leading purpose of a settlement in favor of a 
 married woman, or feme in contemplation of marriage, is to 
 disable the husband, and not to enable the wife, at least 
 further than may be consistent with the security of her title, 
 of which the grantor ought in each particular case to be the 
 judge. The object is not so much to give her the dominion 
 of a feme sole, as to withdraw the estate from the dominion 
 of the husband ; it is, therefore, the settled law of Pennsyl- 
 vania, that instead of her having every power from which 
 she is not negatively debarred in the conveyance creating 
 the trust, she shall be deemed to have none but what is 
 positively therein given or reserved to her.^ Where, there- 
 fore, T. P., ^feme sole, being seized of a moiety of certain 
 real estate, executed a conveyance to trustees by which she 
 limited a moiety of her moiety to her mother for life, and 
 the residue, together with the remainder, after the death of 
 her mother, " to and for the only use and behoof, and for 
 the personal support and comfort, of the said T. P., and 
 also" to "permit and suffer the said T. P., while sole, 
 to use, improve, occupy, possess, and enjoy the same, and 
 to receive all and singular the rents, issues and profits 
 thereof," " and in case the said T. P. shall marry, then the 
 same to be held to and for the only and personal benefit of 
 the said T. P., whether she be covert or sole, free from all in- 
 terference, claim or control of her husband, or other person 
 whatsoever ;" the remainder, after her death, in fee to such 
 
 1 Thomas v. Folwell, 2 Wh. 16; d. Coston, 9 Watts 137; Cochran v. 
 Lancaster v. Dolan, 1 R. 231 ; Dor- O'llern, 4 W. & S. 100 ; Rogers v. 
 ranoe v. Scott, 3 Wh. 315 ; Wallace Smith, 4 Barr 93. 
 
POWERS OF CESTUI QUE TRUST, BEING MARRIED. 333 
 
 person as she, by any writing in the nature of a will of instru- 
 ment under her hand and seal, &c., should direct, it was held 
 that as no power was reserved to her to dispose of her life 
 interest, she could not dispose of that, but only of the re- 
 mainder after the death of her mother and herself.^ So, 
 where real estate was conveyed in trust for the use of S., a 
 married woman, and to receive the rents, issues, and profits 
 of the same and to pay them over to the said S., " or to 
 such person or persons and in such manner as she, the said 
 S., shall or may direct, order and appoint from time to time, 
 and at all times hereafter," it was held that S. could not 
 pass the freehold by an appointment in the nature of ^ 
 will.^ 
 
 §' 344. In Shonk v. Brown,^ a testator gave to his daughter, 
 a married woman, a share of his real estate, " to the sole 
 and separate use of her and her heirs, so that" she "cannot 
 sell or convey the same, but to descend to her lawful heirs, 
 and so that the said real property cannot be taken, sold, or 
 rented, or leased from her or her heirs, to pay any judg- 
 ment or demand that may be against her said husband." 
 And it was held that the eflFect of the devise was to vest 
 the estate in the daughter for her sole and sepai-ate use, 
 freed from the debts of her husband, and without power to 
 convey during coverture. The will took effect after the 
 passage of the Married Women's Act of 1848, and it was 
 thought this enabled her to convey, there having been no 
 trustee named in the will. But the court held that the 
 want of a trustee did not change the nature of the trust, 
 which is upheld in equity as well without as with a trustee. 
 That while the Act of 1848 produced a radical change in 
 the condition of a married woman as to the title to her 
 
 1 Lancaster v. Dolan, 1 R. 231. ' 11 P. F. S. 320. 
 
 2 Thomas v. Folwell, 2 Wh. 11. 
 
334 A VIEW OF THE LAW OF TRUSTS. 
 
 estate, this had relation to her right of property, and not 
 to the powers she could exercise over it. Here there was 
 an estate settled to the separate use of the daughter, with- 
 out a power of sale, and she could not, therefore, dispose of 
 it, as she could only exercise the power conferred upon her 
 by the will. 
 
TRUST TO CONVEY IS EXECUTED, ETC. 335 
 
 CHAPTER XXXVII. 
 
 TRUST TO CONVEY IS EXECUTED, AND LEGAL TITLE PASSES WITHOUT 
 
 CONVEYANCE. 
 
 § 345. In England, the mere duty to convey a remainder 
 after a trust estate for life is sufficient to prevent the execu- 
 tion of a use, under the Statute of Uses. There, under a 
 trust to convey, the legal estate remains in the trustee until 
 he makes the conveyance, the reason given being that it is 
 necessary in order to enable the conveyance to be made. 
 But in this State, where lands are given by will in trust to 
 be conveyed, and no other power or duty is assigned to 
 the trustee, and he has nothing to do with the enjoyment 
 of the property, but is only an instrument to enable the 
 cestui que use to acquire the legal estate, it has been under- 
 stood that a conveyance is unnecessary. At most it can be 
 but a matter of form, rather than of substance. In point of 
 fact, such conveyances have not usually been made. Until the 
 year 1836 we had no court of equity to compel a trustee to 
 convey, and, therefore, that was considered as having been 
 done which the trustee should have done, and with the 
 same effect. The cestui que trust being entitled to the whole 
 beneficial enjoyment, and the trustees having no right to 
 interfere with it, no reason was apparent why a legal title 
 should be held continuing in the latter; and a severance of the 
 legal right from the beneficial ownership is not to be main- 
 tained without some reason. Accordingly, it has been held 
 that a direction to trustees to convey after the termination 
 of a trust does not continue the legal estate in them, and 
 make them trustees of the persons to whom they are directed 
 to convey.'^ And whenever there is a trust for life, with 
 
 1 Bacon's Appeal, 7 P. F. S. 512, 14 Wr. 143; Barnett's Appeal, 10 
 per Strong, J. See Nice's Appeal, Wr. 392 ; Rush v. Lewis, 9 H. 75 ; 
 
66b A VIEW OF THE LAW OF TRUSTS. 
 
 remainder over, absolutely the trustees' duty ends on the 
 death of the cestui que trust, and the property passes at once 
 to the remainder-men.^ 
 
 Conveyance of Legal Estate ly Trustee. 
 
 § 346. As to the necessity or propriety of a conveyance 
 of the legal estate by the trustee to the owner of the fee 
 where the trust is executed and at an end, it was held in 
 Bush V. Lewis^ and Kuhn v. Newman^ that it was unneces- 
 sary, as the legal estate was already vested in the owner of 
 the fee. But in Kay v. Scates,* it Ayas said that although 
 the legal estate is held to be executed in the owner by force 
 of law, the nominal trust beclouds the title, and embarrasses 
 the rights of alienation which belong to the true owner, and 
 the court held it better to decree a conveyance, remarking 
 that such was the practice of courts of chancery where the 
 purposes of a trust once existing have been accomplished. 
 So in Bacon's Appeal,' the court say : " It is true that we 
 have in some cases decreed conveyances from a trustee to a 
 cestui que trust, where the purpose of a trust has been ful- 
 filled, but this is not because the legal and equitable titles 
 remained apart ; it was to dissipate a useless cloud upon 
 the title, and make the property more marketable. We 
 have done this when the trust had expired by limitation, 
 and when without doubt the legal estate had passed from 
 the trustee, though it had been given to him formally in fee 
 simple." And in Bife v. Geyer,^ the court say : " Whenever 
 the entire beneficial interest is in the cestui que trust, without 
 restriction as to the enjoyment of it, there is no reason why 
 it should not be considered as actually executed. No formal 
 
 Kuhn V. Newman, 2 C. 227 ; Kay v. ' 2 C. 227. 
 
 Soates, 1 Wr. 31 ; Rife v. Geyer, 9 ' 1 Wr. 31. 
 
 P. P. S. 396. 6 7 P. F. S. 513. 
 
 I Stokes' Appeal, 33 Leg. Int. 168. « 9 P. F. S. 396. 
 
 ^ 9 H. 75. 
 
TRUST TO CONVEY IS EXECUTED, ETC. 337 
 
 conveyance of the legal estate is necessary, though it will 
 be decreed, because the nominal trust beclouds the title, and 
 embarrasses the rights of alienation, which belong to the true 
 owner." 
 
 § 347. Ejectment may be sustained upon the title of the 
 remainder-man without a conveyance of the legal title. " In 
 our mixed system of law and equity," says Mr. Justice 
 Sharswood,-' " it has always been received as a universal rule 
 that whatever a chancellor would decree to be done shall be 
 considered as actually done. On this principle ejectment 
 can be maintained on what, in England, would be regarded 
 as an equitable title. Whenever chancery would execute a 
 trust, or decree a conveyance, the courts of this State, by 
 the instrumentality of a jury, will direct a recovery in eject- 
 ment." 
 
 1 Rife V. Geyer, 9 P. F. S. 396, and see Peebles v. Reading, 8 S. & R. 491 ; 
 Pennock v. Freeman, 1 Watts 401. 
 
338 A VIEW OP THE LAW OP TRUSTS. 
 
 CHAPTER XXXVIII. 
 
 ESTATE OF THE TRUSTEES GOVERNED BY THE NATURE OF THE 
 
 TRUST. 
 
 § 348. A limitation of real estate to trustees, their execu- 
 tors, administrators and assigns, will give them a freehold, 
 or even an estate in fee simple, if the purposes of the trust 
 require it. It is the duration and character of the trust, 
 rather than the devising words, that must determine the es- 
 tate which they take. Even a devise to trustees and tl^eir 
 heirs gives less than a fee, if a less estate will answer the 
 purposes of the trust.^ The principle appears to be well 
 recognized that no matter what may be the nominal dura- 
 tion of the''estate given to a trustee, it continues in equity 
 no longer than the thing sought to be secured by the trust 
 demands. Hence the trust for the separate use of a married 
 woman ceases on the death of the husband, or on her divorce 
 from him.^ 
 
 A Trust may he Determined ly Consent of all Parties in 
 
 Interest. 
 
 § 349. It is a well-settled rule in equity that, although 
 a trust may not have ceased by expiration of time, and 
 although all its purposes may not have been accomplished, 
 yet if all the parties who are or who may be interested in 
 the trust property are in existence and are sui juris, and if 
 they all consent and agree thereto, courts of equity may de- 
 cree the determination of the trust and the distribution of 
 the trust fund among those entitled thereto. Hence where 
 an administrator held in his hands a sum of money remain- 
 ing after payment of the debts of the decedent (being pro- 
 
 ' McBride v. Smith, 4 P. F. S. 245. « Culberteon's Ap., 26 P. F. S. 148. 
 
ESTATE OF THE TEUSTEES GOVERNED, ETC. 339 
 
 ceeds of a sale of real estate) under an agreement between 
 the widow, the guardian of the minor children, and the ad- 
 ministrator, by which the money should remain in the ad- 
 ministrator's hands, the widow to receive the interest upon 
 it, and at her death the principal to go to the heirs of the 
 decedent; and it had so remained for nearly twenty years, 
 the administrator paying over the interest to the widow an- 
 nually ; all the children, in the meantime, becoming of age, 
 and being sui juris, and they having united with their mother 
 in requesting the administrator to pay over to her the whole 
 fund ; the widow and children at the same time offering 
 to fully release and discharge of record the administrator 
 and his sureties, it was held that the widow was entitled to 
 the fund ; the court adding that her claim to the *fund did 
 not depend " upon mere judicial discretion, but is demandable 
 of right."^ 
 
 ^ Culbertson's Appeal, 26 P. F. S. 145. 
 
340 A VIEW OF THE LAW OF TRUSTS. 
 
 CHAPTER XXXIX. 
 
 LIMITATION OF PERSONAL ESTATE. 
 
 § 350. Where personal estate is bequeathed in language 
 which, if applied to real estate, would create an estate tail 
 or a fee simple, as a general rule, it vests absolutely in the 
 person who would be the devisee in tail or in fee.-^ And 
 this rule applies in cases which, if it were realty, would 
 come within the rule in Shelley's case.^ The latter rule, 
 however, does not, as such, apply to personal property.^ 
 But where personal property is bequeathed to trustees, in 
 trust for the sole and separate use of a married woman, the 
 income to be received and paid over to her during her life, 
 and upon her death the property to go to her " right heirs 
 forever," the trust is an active one as to her interest, and 
 she takes but a life estate.* 
 
 Bequest of Personal Estate for Life Remainder to Issue. 
 
 § 351. A bequest of personalty to one for life, with a re- 
 mainder to his issue, does not confer an absolute interest 
 upon the first taker, while a remainder to heirs may. In 
 gifts of personalty a different meaning is attached to the 
 word issue from that which it bears when used in devises 
 of realty. The remainder-men take as purchasers, and 
 hence such a remainder does not enlarge the particular 
 estate.* Real estate is capable of entaU, but personal is 
 not.* The term " issue," therefore, of itself, will never be 
 construed heirs of the body, in a bequest of personalty, 
 when following a limitation for life.'^ It is a settled rule of 
 
 ' Bacon's Appeal, 7 P. F. S. 504. Amelia Smith's Appeal, 11 H. 9 ; 
 
 ^ Bacon's Appeal, supra. Pott's Appeal, 6 C. 170. 
 
 ' Bacon's Appeal, supra. ^ Emma Myer's Appeal, supra. 
 
 * Bacon's Appeal, supra. ' Pennook's Estate, 33 Leg. Int. 
 
 « Sheet's Estate, 2 P. F. S. 268 ; 290, per Butler, P. J., Com. Pleas, 
 
 Emma Myer's Appeal, 13 Wr. 113; Chester Co. 
 Mengel's Appeal, 11 P. F. S. 250 
 
LIMITATION , OF PERSONAL ESTATE. 341 
 
 property, in Pennsylvania, in relation to lands, that if a de- 
 vise be made to one in fee, and, " if he die without issue," 
 or "on failure of issue," or "for want of issue," or "without 
 leaving issue," then over to another in fee, the estate of the 
 first taker is a fee tail, which, if he have issue, passes to 
 them ad infinitum by descent as tenants in tail. The estate 
 vests in the first taker fully, and to all intents and purposes, 
 as a fee tail/ But the words " without leaving issue," ap- 
 plied to personal estate, mean issue living at the death of 
 the person to whom the property is given in the first in- 
 stance. It would answer no purpose to understand issue 
 indefinitely, in the case oi personal property, because the law 
 would not permit that issue to take.^ And the words " die 
 without lawful issue" are to be construed, in case of personal 
 estate, to mean " die without leaving lawful issue," when 
 that corresponds with the testator's intent.^ 
 
 Gift of Personal Property for Life Remainder to Executors, 
 Administrators, &c. 
 
 § 352. But if personal property be given to a person for 
 life, or to a trustee in trust, to receive and pay over the 
 income to such person for life, the remainder to the execu- 
 tors, or administrators, or the legal representatives (or other 
 equivalent terms) of such person, this would carry the 
 absolute property, just as if the property were real, and the 
 remainder were to the heirs of such person, the fee would 
 pass.* 
 
 Trust for Life, with Power of Disposal by Will, Remainder to 
 Legal Representatives. 
 
 § 353. In Ralston v. Waln,^ two separate deeds of trust 
 were executed to the same trustees, creating two distinct 
 
 ' Eichelberger v. Barnitz, 9 Watts ' Hopkins v. Jones, 2 Barr 71. 
 
 450, per Sergeant, J. * Ralston v. Wain, 8 Wr. 279. 
 
 2 Clark V. Baker, 3 S. & R. 470, per » Supra. 
 Tilghman, C. J. 
 
342 A VIEW OF THE LAW OF TRUSTS. 
 
 trusts for the benefit of a married woman. In the first 
 deed, certain personal property was conveyed to the trus- 
 tees, in trust, to receive the income thereof, and pay it over 
 to the married woman, to her sole and separate use, free 
 from the control, debts, &c., of her husband, during the 
 term of her natural life, and from and immediately after her 
 decease, to hold the personal property for the use and bene- 
 fit of such persons and for such estates as she should 
 appoint by will, and in default of such appointment, then 
 for the use and benefit of such person or persons as would 
 have been entitled to the same " as her legal representatives, 
 had she died a widow, under and ly virtue of the intestate laws 
 of the State of Pennsylvania ;" and in the other deed, both 
 real and personal estate were conveyed to the trustees, in 
 trust, to invest and keep invested the personal estate as 
 therein set forth, and to collect and receive the rents and 
 income of the trust estate, and pay over the same when and 
 as received, and not by way of anticipation, after deducting 
 the claims, charges and expenses therein mentioned, into the 
 hands of the married woman, or such person or persons as 
 she should, by any writing under her hand, appoint and 
 direct, for and during the term of her natural life, to and 
 for her sole and separate use and benefit, but so that the 
 same should not be subject or liable to the debts, &c., of her 
 husband, and from and immediately after her decease, then 
 to grant and convey the trust estate to and for such estate 
 and estates and interests as she should appoint by will, and 
 in default of appointment, then to grant and convey the 
 premises unto such person and persons as at her decease 
 " shall and may he her heirs and legal representativesr And 
 it was held that upon the death of the husband, the life- 
 tenant under the first deed took but a life estate, with re- 
 mainder to the person or persons who would be her next of 
 kin, at her decease, by the intestate laws of Pennsylvania, 
 and that under the latter deed she took an estate in fee 
 
LIMITATION OF PERSONAL ESTATE. 343 
 
 simple in the real estate, and the personal estate absolutely. 
 The reason for the difference in the two cases would seem 
 to he this : The term " legal representatives," as used gene- 
 rally in the last case, means " executors and adminis- 
 trators," and, like " heirs," are words of limitation, and not 
 of purchase, while in the words " her legal representatives 
 had she died a widow, under and by virtue of the intestate 
 laws of Pennsylvania," as used in the first case, the words 
 "legal representatives" cannot mean "executors and admin- 
 istrators," as they, and particularly the executoi-s, would not 
 take under and by virtue of the intestate laws, and, more- 
 over, as the legal representatives who are here to take are 
 such as, under the intestate laws of Pennsylvania, would 
 be entitled to claim if the life-tenant were, at the time of 
 her decease, a widow, that is exclusively of her husband, if 
 he survived her, they are therefore differently entitled than 
 they would be were her husband at his wife's decease alive, 
 and not himself excluded by the trust from claiming ; and 
 their title, consequently, would be, not derivatively from 
 her under the intestate laws of the State, but would arise 
 under the form of the deed, and by force of its description, 
 as purchasers of their respective interests. But when used 
 generally, and without restrictive words, the ordinary legal 
 sense of the terms " legal representatives," " legal personal 
 representatives," "personal representatives," and represent- 
 atives," is executors and administrators. But this case also 
 decides (in the case of the first deed) that where a life estate 
 is given, with power of appointment by will, in the case of per- 
 sonalty, it gives to the cestui que trust a life estate only, for 
 this is involved in the decision.^ As to the other deed, the 
 cestui que trust took absolutely, not because of the life estate 
 and power of appointment, but because of the life estate 
 and remainder to her legal representatives, construed to 
 mean executors or administrators. 
 
 ' See Girard Co. «. Chambers, 10 Wr. 491. 
 
APPENDIX. 
 
 ACTS OF ASSEMBLY.— SUPPLEMENTAL. 
 
 Married loomen may sell and transfer certain stocks and loans. See ante, 
 
 page 65. 
 
 The Act of June 2, 1871 (P. L. 283), provides : 
 
 " That it shall and may be lawful for any married woman, owning any 
 share or shares of the capital stock of any railroad company, to sell and 
 transfer the same with like effect as if she were unmarried." 
 
 The Act of April 1, 1874, section 1 (P. L. 49), provides: 
 " That it shall and may be lawful for any married woman owning any 
 of the loans of this Commonwealth, or of the City of Philadelphia, or any 
 share or shares of the capital stock of any corporation created by or under 
 the laws of this Commonwealth, to sell and transfer the same with like effect 
 as if she were unmarried." 
 
 The Act of March 18, 1875 (P. L. 24), provides : 
 
 That the above Act " is hereby amended so as to read as follows : That 
 it shall and may be lawful for any married woman owning any of the loans 
 of this Commonwealth or of the City of Philadelphia, or any of the loans, 
 or share or shares, of the capital stock of any corporation, created by or 
 under the laws of this Commonwealth, to sell and transfer the same with 
 the like effect as if she were unmarried." 
 
 Married women and minors may draw checks, &c. 
 
 The Act of May 15, 1874 (P. L. 193), provides : 
 
 " That from and after the passage of this Act, the board of trustees of 
 any bank in this Commonwealth shall have full power, at their discretion, 
 to pay on application the check, proper receipt, or order of any minor or 
 married woman, such money or any part thereof as he or she may have de- 
 posited to his or her credit, or any interest or dividend accruing thereon , 
 without the assent or approbation of the parent or guardian of such minor, 
 or the husband of such married woman, as the case may be; and it shall 
 
346 APPENDIX. 
 
 not be lawful for the parent or guardian of such minor, or the husband, or 
 creditors of the husband, of such married woman, to attach or in any man- 
 ner interfere with any deposit, interest or dividend thereon to such minor 
 or married woman." 
 
 Harried women may he corporators in certain cases. 
 
 The Act of February 24, 1859, section 1 (P. L. 78), enacts : 
 " That it shall be lawful for the courts to permit married women to be 
 incorporated with others, in any institution composed of women, or to be 
 under their management, for the care and education of children, or for the 
 support of sick or indigent women." 
 
 Married women may insure their husbands' lives. 
 
 The Act of April 9, 1850 (P. L. 431), enacts : 
 
 " Section 14. It shall be lawful for any married woman, by herself, and 
 in her name, or in the name of any third person, with his assent, as her 
 trustee, to cause to be insured for her sole use the life of her husband ; 
 and in case of her surviving her husband, the sum or net amount of the 
 insurance becoming due and payable by the terms of insurance shall be 
 payable to her, to and for her own use, free from the claims of the repre- 
 sentatives of her husband, or of any of his creditors. 
 
 " Section 15. In case of the death of the wife before the decease of her 
 husband, the amount of the insurance may be made payable, after death, 
 to her children for their use, and to their guardian, if under age.'' 
 
 See Deginther's Appeal, 2 Norris 337. 
 
 Married women who are minors may unite with their husbands in conveying 
 
 his real estate. 
 
 The Act of March 22, 1865, section 1 (P. L. 30), enacts : 
 " That the deed of conveyance, executed and acknowledged by a wife, in 
 conjunction with her husband, of his real estate, shall be valid and effectual, 
 notwithstanding the minority of the wife at the time of such execution and 
 acknowledgment, and any such deed, heretofore made, shall be as valid as 
 if the wife had, at the time, been of lawful age." 
 
 Achnowledgm.ent of instrument of u-riting transferring wife's personal 
 property. See ante, p. 77, § 82. 
 
 The Act of May 14, 1874 (P. L. 158), enacts: 
 
 " That so much of the Act, approved April eleventh, Anno Domini one 
 thousand eight hundred and forty-eight, as requires the acknowledgment of 
 
APPENDIX. 347 
 
 any instrument in writing, intended to transfer and assign the interest of 
 any married woman in her personal property, to be acknowledged before 
 one of the judges of the Courts of Common Pleas of this Commonwealth, 
 be and the same is hereby repealed, and any acknowledgment in such form 
 as required by law, which may hereafter be made in such cases before any 
 alderman, justice of the peace, notary public, or other officer authorized to 
 take acknowledgments in this Commonwealth, shall be as valid and effectual 
 for all purposes whatsoever as if made before said judge of the Court of 
 Common Pleas." 
 
 Certain marriages within the degrees of affinity legalized, and children to 
 have same rights as if horn in lawful wedlock. See ante, p. 19. 
 
 The Act of April 6, 1868 (P. L. 67), enacts: 
 
 " That all marriages heretofore contracted between parties within the 
 degrees of affinity, as prescribed in the thirty-ninth section of the Act of 
 twenty-first March, one thousand eight hundred and sixty, of which issue 
 is horn, are hereby legalized, and the child or children of such marriages 
 shall have all the rights and privileges of children born in lawful wedlock : 
 Provided, That nothing in this Act shall relate to marriages within the 
 degrees of consanguinity as now prohibited by law." 
 
 Where real estate is held for the sole and separate use of married women, 
 courts may decree a sale, mortgaging, leasing or conveyance upon ground- 
 rent in certain cases. 
 
 By the Act of April 18, 1853 (P. L. 503), it is provided : 
 " Section 1. That in all cases where real estate shall have been acquired 
 by descent or last will, the Orphans' Court, and in all other cases, the 
 Courts of Common Pleas of the respective counties of this Common- 
 wealth, shall have jurisdiction to decree the sale, mortgaging, leasing or 
 conveyance upon ground-rent of such real estate in the cases hereinafter 
 described : Provided, That any such court in the county where the premises 
 shall be situated shall be of opinion that it is for the interest and advantiig^ 
 of those interested therein that the same shall be sold, mortgaged, leased 
 or let on ground-rent, and may be done without injury or prejudice to any 
 trust, charity or purpose for which the same shall be held: And provided, 
 That the same may be done without the violation of any law which may 
 confer an immunity or exemption from sale or alienation. 
 
 " Section 2. Such sale, mortgaging, leasing or conveyance upon ground- 
 rent may be decreed whenever real estate shall be held for or owned by 
 minors, lunatics or habitual drunkards, so duly found by inquisition, /or 
 the sole and separate use of married women, for religious, beneficial or 
 
348 APPENDIX. 
 
 charitable societies or associations, incorporated or unincorporated, or for 
 or by any other corporation, or by trustees for any public or private use or 
 trust, and although there may exist a power of sale, but the time may not 
 have arrived for its exercise, or any preliminary act may not have been done 
 to bring it into exercise, or the time limited for its exorcise may have ex- 
 pired, or any one or more persons required to consent or to join in its 
 execution may have become non compos mentis, or have removed out of the 
 State, or died, or should refuse to act or unreasonably withhold consent; 
 also, when there has been or shall be a defective appointment in any deed 
 or last will and ■ testament, and the necessary power is not given to the 
 executor, devisee or appointee to make sale and conveyance of real estate; 
 also, whenever the owner of real estate may have been absent and unheard 
 from for seven years, under those circumstances from which the law would pre- 
 sume his or her death ; ivhenever a husband shall own real estate having a wife 
 who is a hmatic or a minor ; whenever a married woman owns real estate, and 
 Iter husband has abandoned her for two years, or been absent and unheard 
 from for seven years ; whenever a decedent shall have contracted by parol 
 to sell real estate, and those interested do not think it expedient to plead 
 the statute requiring contracts to be in writing to enable the purchaser to 
 recover the real estate agreed to be sold; whenever a decedent's real estate 
 is subject to the lien of debts not of record ; whenever real estate shall be 
 entailed, or contingent remainders or executory devises shall be limited 
 therein ; or whenever in proceedings in partition in equity it shall appear 
 that real estate cannot be divided without prejudice to the interests of the 
 owners ; and also whenever real estate shall have been purchased, or any 
 ground-rent been reserved, and be held by any person acting in a trust or 
 fiduciary capacity ; and such decree may be made whether such ownership 
 or interest shall be held or enjoyed in severalty, joint tenancy, coparcenary 
 or in common with others ; and, generally, in all cases where estates have 
 been or shall be devised or granted in trust, or for special or limited pur- 
 poses, or where any party interested therein is under a legal disability to 
 sell and convey the same : Provided, That nothing in this Act contained 
 shall be taken to repeal or impair the authority of any Act of Assembly, 
 general or private, authorizing the sale of real estate by decree of court or 
 otherwise, nor to aflfect or impair any right or powers otherwise existing in 
 any persons or corporations to sell, mortgage, lease or let on ground-rent 
 any real estate ; and every power to sell in fee simple real estate created by 
 deed or will shall be taken to confer an authority to sell and convey, reserv- 
 ing a ground-rent or rents in fee, and the same to release and extinguish 
 according to law and the stipulation of the deed, and also to grant and 
 convey such ground-rent or rents to any purchaser or purchasers thereof 
 free of all trusts." 
 
APPENDIX. 349 
 
 Under decree of court married women may make and take conveyances to 
 square and adjust lines, &c. 
 
 The last-named Act, April 18, 1853 (P. L. 506), provides: 
 " Section 1. That it shall be lawful for trustees, guardians, committees, 
 married women and corporations, in all the cases aforesaid, under the decree 
 of the court as aforesaid, and with the like effect and indemnity to them in 
 acting thereunder, to make and take conveyances by deed acknowledged in 
 court, without public sale, in order to square and adjust lines between ad- 
 joining owners ; to make and take conveyances, to perfect the partition of 
 real estate held in joint tenancy, coparcenary or ia common with others; to 
 purchase other real estate when needful to that already owned by any such 
 party, or useful to the business thereupon carried on, or when necessary to 
 protect any security or rent held on property exposed to judicial sale: Pro- 
 vided, That no corporation shall be so authorized to purchase beyond its 
 charter license : And provided, That no purchase or sale by authority of 
 this Act shall change the course of descent or transmission of any property 
 changed in its nature by virtue thereof, as respects persons who are not of 
 competent ability to dispose of it; and all persons intrusted with moneys 
 raised under this Act shall be authorized to file their accounts iu the court 
 whence their authority was derived, and upon such notice as the court may 
 order to parties interested, or after being audited, if deemed necessary, or 
 by consent of all parties interested, such accounts may be finally confirmed, 
 and upon payment of the balance, as may be decreed by the court, such 
 accounts may be fully discharged from the trust." 
 
 Where property of a married woman is secured to her, and she has no 
 trustee, court may appoint one, upon her petition. 
 
 The Act of April 25, 1850, section 11 (P. L. 571), enacts : 
 " That whenever by the provisions of the Act of Assembly of this Com- 
 monwealth, entitled 'A supplement to an Act entitled "An Act relative 
 to the LeRaysville Phalanx," passed March, Anno Domini 1847, and 
 relative to obligors and obligees; to secure the rights of married women; 
 in relation to defalcation ; to extend the boundaries of the borough of 
 Ligonier,' &c., passed the 11th day of April, A. D. 1848, the property of a 
 married woman is secured to her, and she shall have no trustee of the 
 same, it shall be lawful for any such married woman to apply to the Court 
 of Common Pleas of the county where she was domiciled at the time of her 
 marriage, for the appointment of a trustee of the same, and such court 
 shall appoint a trustee of the same, not being the husband of the said peti- 
 tioner; and it shall further be lawful for any such married woman to 
 
350 APPENDIX. 
 
 declare a trust in regard to such property, or any part thereof, in favor of 
 any of her children." 
 
 A married woman heqiieathed personal property for life, or years, &c., may 
 give security in the Orphans' Court, and hind her separate estate as 
 a feme sole upon receiving bequest. 
 
 The Act of May 17, 1871 (P. L. 269), provides : 
 
 " That whenever any personal property, or the increase, profits, or divi- 
 dends thereof, has been or shall hereafter be bequeathed to any person, for 
 life or for a term of years, or for any other limited period, or upon a con- 
 dition or contingency, the executor or executors, administrator vfith the 
 will annexed, or trustee or trustees under such will, as the case may be, 
 shall deliver the property so bequeathed to the person entitled thereto, upon 
 such person giving security in the Orphans' Court having jurisdiction of 
 the accounts, in such form and amount as, in the judgment of the court, 
 will sufficiently secure the interest of the person or persons entitled in re- 
 mainder, whenever the same shall accrue or vest in possession ; and any 
 married woman availing herself of the benefits of this Act shall have 
 power, as a feme sole, to bind her separate estate and property, by any obli- 
 gation given by her, as security under this Act." 
 
 In partition, if a sum of money he awarded to wife, it shall not he paid to 
 hushand without seburity, &c. 
 
 By the Act of March 29, 1832, section 48 (P. L. 205), it is provided : 
 " That when upon any proceedings in the Orphans' Court, a sum of money 
 shall be awarded by the court for the share or portion to which a married 
 woman may be entitled, such money shall not be paid to her husband until 
 he shall have given security, to the satisfaction of the court, that the 
 amount thereof, or so much thereof as the court shall deem proper, be paid 
 after his death to his wife, or, if she shall not survive him, to her heirs, as 
 if the same were real estate ; or if the husband shall be unable or refuse to 
 give security as aforesaid, the same may be vested in trustees, to be ap- 
 proved by the court, for the same purposes, but reserving to the husband 
 the interest thereof during his life, unless the husband shall desire the same 
 to be settled for the separate use of the wife : Provided alivays, That if the 
 wife, being of full age, on a separate examination, the husband not being 
 present, shall declare before one of the judges of the same court, or, if not 
 resident in the county, before a judge of a court of record in the county or 
 place where she may reside, that she does not require such moneys to be so 
 secured, and that she makes this declaration freely and voluntarily, with- 
 
APPENDIX. 351 
 
 out any threats or compulsion on the part of her husband, the full contents 
 and legal effects (effect) of such declaration being first made known to her 
 by the judge, and the said declaration and acknowledgment be certified by 
 the same judge, and filed of record in the said Orphans' Court, then and in 
 such case the husband shall not be required to secure the said moneys in 
 manner aforesaid. The form of such declaration shall be as follows : Whereas, 
 I, A. £., the wife of G. B., am entitled t3 the sum of , proceed- 
 ing from the sale {or partition) of the real estate of D. E., in the county of 
 
 .■ Now, I do certify and declare, that I consent and agree that the 
 
 same he paid to my husband, the said G. B., without any condition or 
 
 security whatever. Witness my hand, this day of , <&c. The 
 
 form of the certificate to be given by the judges (judge) shall be as follows : 
 
 On the day of , A. D. , personally appeared before 
 
 me, one of the judges of the {Orphans' Gourt) for the county of , 
 
 A. B., the loife of G. B., of [here insert his residence and occupation] 
 who, being of full age, and by me examined, separate and apart from her 
 said husband, and the contents and legal effect of the foregoing instrument 
 by me fully explained and made known to her, declared that she executed 
 the same freely and voluntarily, without any threats or compulsion on the 
 part of her husband or any other person. Witness my hand and seal, the 
 day and year above written." 
 
 The Act of March 16, 1847, section 1 (P. L. 474), enacts that : 
 " The provisions of the 48th section of the Act of General Assembly, 
 passed the 29th of March, 1832, entitled ' An Act relating to orphans' 
 courts,' are hereby extended to proceedings in partition or valuation on sale 
 of the wife's real estate, on proceedings in partition in the common law 
 courts hereafter to take place, or that have heretofore taken place, where 
 the share due the wife, or to the husband in right of the wife, still remains 
 in court : Provided, The declaration made by the wife shall be filed in the 
 court where the suit is instituted." 
 
 The Act of April 13, 1869, section 1 (P. L. 28), provides : 
 " That in all cases of proceedings in the Orphans' Court in partition, 
 wherein a wife has made or shall hereafter make her declaration, in pursu- 
 ance of the 48th section of the Act of March 29, Anno Domini 1832, 
 of her desire that the money secured to her under the said proceedings shall 
 be paid to her husband, and subsequent to the filing of the said declaration, 
 and before the actual payment of the said money, the said parties shall have 
 been, or shall thereafter be, lawfully divorced from each other, the said 
 money so as aforesaid secured shall bp and remain the property of the said 
 wife, notwithstanding the said declaration, and shall be legally collectible by 
 her in her own name and for her own use." 
 
352 APPENDIX. 
 
 Where an intestate leaves a wife or husiand, and no heirs or Jcnown Join- 
 dred, upon petition of surviving hushand or wife the cowt may decree 
 halance in administrator's hands to surviving wife or hushand. 
 
 The Act of April 6, 1833, section 1 (P. L. 207), provides: 
 " That if any person shall die or hath died intestate, leaving a wife or 
 husband, and no heirs or other known kindred, such surviving husband or 
 wife, his or her heirs or legal representatives, may, at any time after the 
 expiration of one year from the death of such intestate, and after final set- 
 tlement of the administration accounts of such intestate, present his, her or 
 their petition to the Orphans' Court of the proper county, setting forth that 
 the said intestate died, leaving no heirs or other known kindred, and that 
 he or she died seized of real or personal estate, which, by virtue of an Act 
 relative to escheated estates, passed the 21st of January, 1819, vested in 
 such surviving husband or wife, which petition shall be verified by the oath 
 or affirmation of the party petitioning, or by some other person knowing the 
 facts, whereupon the said court shall grant a rule upon all the heirs, or other 
 persons interested or claiming any interest in said estate, to appear in said 
 court at some time certain, and show cause why a decree should not be 
 made, ordering and directing the administrator or administrators of the es- 
 tate of such decedent to pay over to such surviving wife or husband, or to 
 his or her le_gal representatives, the balance of such intestate's estate in his 
 or their hands, which rule shall be published for such length of time and in 
 such manner as the said Orphans' Court, in their discretion, shall think 
 proper ; and if, upon the return of the said rule, and due proof of the publi- 
 cation thereof, agreeably to the order of the said court, no heirs claiming 
 said estate shall appear, nor any good cause be shown to the contrary, the 
 said court shall order and decree as aforesaid ; and if upon the return of any 
 such rule, any person or persons shall appear in court claiming to be heirs 
 to such estate, whose right to the same shall be disputed by such surviving 
 wife or husband, his or her legal representatives, then the court may direct 
 an issue to determine the matter, or may take such order therein as they 
 shall think proper." 
 
INDEX. 
 
 ABANDONMENT, 
 
 malicious, by tusband of family, or turning of wife out of doors, a 
 
 cause of divorce from bed and board, 233-239. See Divorce. 
 ABSENCE, 
 
 and wilful and malicious desertion, &c., for two years, a cause of 
 
 divorce, 184, 192. See Divorce. 
 for two years, and on false rumor of death, the other marries, &c., a 
 
 cause of divorce, 204. See Divorce. 
 ACKNOWLEDGMENT OF DEED, 70-77. 
 how acknowledged, 70, 71, 1^-11. 
 before whom, 71. 
 married woman can waive nothing except in the way pointed out by 
 
 law, 72. ' 
 
 certificate of officer a judicial act, and can be impeached only for 
 
 fraud, 72. 
 wife may avoid the certificate for fraud, 72. 
 
 as to him who has notice, or has parted with no valuable considera- 
 tion, or between the parties themselves, 72. 
 certificate conclusive as to material facts stated as to subsequent 
 
 purchasers for value and hond fide vendees and mortgages for 
 
 value, without notice, 72. 
 general rule as to certificate, 72. 
 if certificate false, and grantee knew it, or knew enough to put him 
 
 on inquiry, it may be contradicted by parol evidence, 73. 
 may show wife did not execute of her free will, 73. 
 requisites of acknowledgment, 73. 
 
 when certificate held to be sufficient, and where insufficient, 73, 74. 
 act does not require a privy examination of wife, 74. 
 presence of third party permitted, 75. 
 officer taking acknowledgment acts judicially, 75. 
 
 if interested, he is incompetent, 75. 
 wife may assign her ohoses in action, her husband joining, without 
 
 acknowledgment, 77. 
 
 may be acknowledged, and mode of acknowledgment, 346. 
 23 
 
354 INDEX. 
 
 ACQUISITION OF PROPEETY, 
 
 by wife, 91. 
 ACT OF 11th APRIL, 1848, 79. See Property. 
 ACTION. See Sub, Wife's Capacity to; Sued, Wipe's Capacity 
 
 TO BB. 
 
 ACTS AND FUNCTIONS A MARRIED WOMAN MAY PERFOM, 
 166, 167, 345-352. 
 
 may act as trustee, administrator, &e., 166. 
 
 may be a corporator, 346. 
 
 may insure husbands' lives, 346. 
 
 though minors, may unite with husband in conveying his real estate, 
 
 346. 
 may exercise parental rights to exclusion of husband in certain 
 
 cases, 166. 
 may appoint testamentary guardian in certain cases, 167. 
 may give security in Orphans' Court, and bind her estate, when 
 bequeathed personal property for life or years, &c., 350. 
 ACTIVE OR SPECIAL TRUSTS, 247. See Trusts. 
 ADULTERY, 
 
 a cause of divorce, 189-192, 238. See Divorce. 
 AFFINITY, 
 
 marriage within degrees of, cause of divorce, 201. 
 AGENT, 
 
 husband as wife's, 77. 
 
 husband may be wife's, 77. 
 
 not necessarily such, 78. 
 
 where she is entitled to notice notice to him not sufficient, 
 
 77, 78. 
 summons or notice for her served on him, or about his house, 
 might be good, 78. 
 wife as husband's, 37-43. See Contracts of Married Women. 
 AGREEMENT, 
 
 articles of for' sale of wife's real estate, 68-70. 
 
 how wife may make, 68. 
 for partition of land, wife may make without acknowledgment, 
 69. 
 
 but binding only when agreed to by all in interest and ex- 
 ecuted, 70. 
 of husband and wife to live separate, 35. See Contracts of 
 Married Women. 
 ALIMONY, 237, 239-242. 
 
 must be such as husband's means admit of, 239. 
 
INDEX. 355 
 
 ALIMONY— contimted. 
 
 in divorce for adnltery, what the court nmy decree wife besides 
 
 alimony, 239. 
 how husband's income estimated, 239. 
 wife entitled to alimony though waived in open ccturt, if deceived by 
 
 husband, 239. 
 appeal lies to Supreme Court, on decree from bed and board and 
 
 alimony, 239. 
 
 order for alimony part of final decree, 239. 
 on appeal is subject to review by court above, 239. 
 except after trial by jury, 240. 
 decree d mensa et thoro, and for alimony to be entered on judgpent 
 
 docket, 240. 
 a lien on real estate of respondent, 240. 
 
 when and how execution may issue for arrears of alimony, 241. 
 if lien not sufficient, security may be ordered, 241. 
 court may enforce decrees by attachment, 241. 
 extent of lien, 241. 
 
 2i]ha.onj pendente lite, not a lien, 231, 241. 
 but decree may be enforced by attachment, 242. 
 defendant imprisoned, not to be discharged under insolvent laws,, 242. 
 alimony not separate property of wife, 242. 
 upon her death arrears belong to husband, 242. 
 unless wife has contracted debts, 242. 
 personal representatives of wife may recover arrears for creditors, 
 
 242. 
 ALIMONY AND COSTS PENDENTE LITE, 230, 231. 
 when duty of court to decree, 230. 
 
 amount and duration of alimony in discretion of court below, 230. 
 not subject of review, 230. 
 
 may be enforced by attachment in discretion of court, 230. 
 will not issue, where party destitute of means to pay, 231. 
 decree for allowance is not a judgment on which execution can issue, 
 
 231. 
 nor lien on husband's lands, 231, 241. 
 
 husband cannot be decreed to pay costs where successful, 231. 
 may decree each to pay his or her own costs, 231. 
 where wife's libel dismissed with costs, fi. fa. may issue agjiinst 
 
 next friend for costs, 231. 
 APPEAL, 
 
 from decree of divorce, 232. 
 writ of error does not lie, 232. 
 
356 INDEX. 
 
 APPEAL — continued. 
 
 but an appeal only, 232. 
 on appeal, the matter taken up de novo, 232. 
 if recognizance not filed, appeal will be dismissed, 232. 
 affidavit that appeal is not intended for delay should be filed, 232. 
 if not filed at time of appeal, when omission may be supplied, 232. 
 answer to libel in divorce, 217, 223. 
 ANTE-NUPTIAL CONTRACT, 
 
 before Act of 1848, only contract on which wife could be sued, 
 114. 
 APPOINTMENT, POWER OF, 
 
 its eff'ect upon trust estates, 319-326. See Powee of Appoint- 
 ment. 
 in deed or will not afiected by statutory restriction upon wife in 
 disposing of property by will, as to husband, 133. 
 ASSIGNMENT, 
 
 of wife's personal property, acknowledgment of, Y7, 346. 
 of widow's share in her deceased husband's real estate, 144-147. 
 BED AND BOARD, 
 
 divorce from, 233-239. See Divorce from Bed and Board. 
 BIGAMY, 
 
 on conviction of second marriage void, 189. See Divorce. 
 BOND AND WARRANT OF ATTORNEY, 
 
 wife's void as a personal obligation, 56. See Contracts of Mar- 
 ried Women. 
 but if given for purchase-money of real estate, will bind property 
 purchased, 59. See Contracts of Married Women. 
 CAUSES OF DIVORCE, 184-205. See Divorce. 
 CHECKS, 
 
 married women and minors may draw, 345. 
 " CHILDREN," 
 
 word of purchase, 258. 
 
 may mean " heirs of body," 259. 
 
 but intention must be clear to so use them, 259. 
 to them distributively as tenants in common, 259. 
 with superadded words of limitation, 259. See Rule in Shel- 
 ley's Case. 
 remainder to, and their heirs or issue, presumption of law as to 
 whether words of limitation or purchase, 272, 273. See Shel. 
 ley's Case, Rule in. 
 CHOSES IN ACTION OF WIFE, 
 
 reduction into possession by husband, 97-105. 
 
INDEX. 357 
 
 CHOSES IN ACTION OF WIFE— conZmaert;. 
 
 husband cannot reduce into possession since Act of 1848, though 
 
 belonging to wife before its passage, 97. 
 could before that act, 98. 
 questions may arise whether he has done so, 98. 
 what constitutes reduction into possession, 98-105. 
 COERCION, 
 
 marriages procured by, a cause of divorce, 202. >S'ee Divorce. 
 CONSANGUINITY AND AFFINITY, 
 
 marriage within degrees of, void, 18-21, 347. 
 a cause of divorce, 201. 
 tables of, 19, 20. 
 CONSENT, 
 
 age of, 21. 
 
 of the essence of the marriage contract, 1. See Marriage. 
 marriage of minors under age of, no power to grant divorce or 
 declare marriage void, 204. 
 CONSTEUCTION OF TESTAMENTARY WORDS, 
 
 depends on special facts, 282. 
 CONTEMPLATION OF MARRIAGE, 
 
 trusts for women in, 314-318. See Trusts for Women in 
 Contemplation of Marriage. 
 CONTRACTS OF MARRIED WOMEN, 
 
 between parties who afterwards intermarry, 25. 
 
 as a general rule extinguished by marriage, 25. 
 exceptions to this, 25. 
 contracts hetween husband and wife, 26-37. 
 grants and gifts hy husband to loife, 26-32. 
 
 void at law, but obligatory in equity, if reasonable, and not 
 
 in fraud of creditors, 26-32. 
 this without the intervention of trustees, 27. 
 or if bond fide and for valuable consideration, 29. 
 clear proof of gift necessary, with such custody by wife as 
 
 she has of her wardrobe, 28. 
 exclusive possession unnecessary, 28. 
 
 mere fact that husband was indebted at time of con- 
 veyance to wife does not render conveyance fraudu- 
 lent, 30. 
 if indebtedness to any amount at time of voluntary settle- 
 ment, solvency sufficient to rebut presumption that settle- 
 ment was covinous must be shown, 30, 31. 
 assignment of policies of insurance by husband in trust for 
 
358 INDEX. 
 
 COI<fTRACTS OF MARRIED WOM.'EN -continued. 
 
 wife void if lie was insolvent when insured, or at time 
 of assignment, 31. 
 
 otherwise as to policies effected, without fraud on their face, 
 for benefit of wife, 31. 
 
 when husband takes a joint obligation to himself and wife 
 for debt due to himself, when a gift to wife, 32. 
 
 where husband purchases real estate at sheriflf's sale in name 
 of himself and wife, presumption is a gift to her, 32. 
 gift or loan hy wife to husband, 
 
 may loan to husband and take judgment or mortgage in 
 name of a trustee as security, 32, 33. 
 
 may make gift or loan to husband or a stranger, 33-35. 
 
 may become his creditor by acts and contracts during mar- 
 riage, 33. 
 
 if husband uses wife's money for the family with her con- 
 sent, not liable to pay interest, 35. 
 
 if he uses it without her consent, liable for interest, 35. 
 
 agreements to live separate, 35, 36. 
 
 such agreements valid, 35. 
 how far wife may hind her husband, 37^6. 
 while living together, 37—43. 
 
 cannot bind without his authority, express or implied, 37-43. 
 
 may bind by his authority, express or implied, 37^3. 
 
 where the law regards her as his agent, may bind him, 37^3. 
 
 where husband is insane, 40. 
 
 where husband makes suflScient allowance for necessaries 
 during temporary absence, 40. 
 
 where wife carries on a trade, when bound, 40. 
 
 his liability upon her promissory note, 41. 
 
 upon judgment confessed by attorney-at-law, by wife's 
 authority, while debtor absent, 42. 
 
 for debts before marriage not liable, 43. 
 while living apart, 43-45. 
 
 persons supplying food, &c., to wife bound to make inquiries, 43. 
 
 if adequate allowance made and paid according to articles of 
 separation, husband not liable for wife's debts, 43. 
 
 nor where articles furnished are beyond husband's circum- 
 stances and degree, 43. 
 
 liable for necessaries, if she offer to return, and he refuses to 
 receive her, 44. 
 
 and if he abandons her without reasonable cause, 44. 
 
INDEX. 359 
 
 CONTRACTS OF MARRIED WOMEN— continued. 
 only liable for necessaries, 44. 
 
 not bound for these in case of elopement, 44. 
 when liable for money lent his wife, 45. 
 when they live separate, presumptive authority to charge 
 
 him does not generally exist, 45. 
 exception to this, 45. 
 how far wife may hind herself or Tier estate for necessaries, 'Ll-^'i. 
 under Act of 1848, 47-52. 
 
 liable for debts contracted by herself for necessaries for her- 
 self and family, 47. 
 execution must first issue against husband, 47. 
 that debt was contracted by her must be pleaded and proved, 
 
 48. 
 husband must be joined as defendant, 48. 
 judgment must show her liability, 49. 
 when wife takes up necessaries, presumption is she actS as 
 
 husband's agent, 49. 
 what necessaries are, 50. 
 Act of 1848 not retrospective as to wife's liability for debts 
 
 contracted after marriage, 51. 
 contracts for sewing machines binding on her, 51. 
 writings obligatory, or other personal obligations, cannot execute, 
 56-59. 
 
 her bond and warrant of attorney, as a personal obligation, 
 
 void, 56. 
 though given for a debt for improvement of her real estate, 57. 
 so a judgment entered on scire facias upon a judgment on 
 
 such bond and warrant void, and no lien on her lands, 57. 
 she cannot enter into a valid recognizance as bail for her 
 
 husband, nor make a promissory note, 57. 
 when one sui juris executes such note with a married woman, 
 
 he alone is bound, 57. 
 by Act of Assembly may execute refunding bonds, &c., 57. 
 her representations at the time of executing bond, that she 
 
 was single, would not estop her from pleading coverture as 
 
 defence to bond, 58. 
 if her contract void, confession of judgment in open court 
 
 also void, 58. 
 but her judgment bond given for purchase-money of real 
 
 estate will bind the property purchased, 59. 
 
 she has power to confess judgment in this one case, 59. 
 
360 INDEX. 
 
 CONTRACTS OP MARRIED ^W OWES— continued. 
 
 agreement of husband and wife for revival of judgment en- 
 tered on her bond and warrant given before marriage, and 
 entered afterwards, is good, 60. 
 when bequeathed personal property for life, years, &c., may 
 give security in Orphans' Court, and bind her estate, 350. 
 where wife refuses to execute deed for husband's land, 
 specific performance cannot be enforced by ejectment 
 against vendor, 68. 
 if vendee will take the title husband can give, coverture will 
 
 not prevent, 68. 
 if purchaser agrees to pay wife a sum of money to execute 
 
 deed, she may recover it, 68. 
 married women are bound by recording act, 68. See Mechan- 
 ic's Liens; Mortgage of Real Esate; Personal 
 Property; Purchase of Property ; Real Estate. 
 CONVEYANCE, 
 
 of legal title, trust to convey executed, and legal title passes with- 
 out conveyance, 335-337. 
 better practice to decree conveyance, 336. 
 ejectment may be maintained without conveyance, 337. 
 of real estate of husband, wives who are minors may join in, 346. 
 of wife's real estate, act to validate, 84. 
 
 upon ground-rent of wife's real estate, held to her separate use, or 
 if abandoned by husband, or the husband's real estate, if she be 
 lunatic, or a minor, courts may decree, 347. 
 to square and adjust lines, wives may make and take under decree 
 
 of court, 349. 
 of wife's personal property, 65. 
 of her real estate, 60, 66, 347. See Real Estate. 
 to wife's separate use her estate equitable, 83. 
 CORPORATORS, 
 
 married women may be in certain cases, 346. 
 COSTS, 
 
 in AvroxcQ, pendente lite, 230, 231. 
 COVENANTS. See Contracts of Married "Women. 
 
 in mortgage, what wife may make, 61. 
 CRIMES OF WIPE, 
 
 husband's liability for, 46. 
 CRUEL AND BARBAROUS TREATMENT, 
 
 by husband of wife a cause of divorce, 196, 197, 236-238. 
 
 by wife of husband a cause of divorce, 199-201. See Divorce. 
 
INDEX. 361 
 
 CUETESY, 105-112. 
 
 tenancy by preserved by Act of 1848, 105. 
 
 wHat it is at common law and in Pennsylvania, 105, 106. 
 
 estate must be one in possession, 106. 
 
 not in reversion or remainder, unless particular estate ends during 
 
 coverture, 106. 
 husband may be tenant of a trust, 106. 
 even if executory in wife, 106. 
 
 but otherwise if property be conveyed to trustees for sole and 
 separate use of wife, and intent to exclude curtesy be 
 clear, 107. 
 husband entitled, whether wife die testate or intestate, 107. 
 wife's real estate cannot be taken in execution, during her life, for 
 husband's debt by reason of, 108. 
 
 but upon recovery in ejectment against husband, for wife's 
 land, plaintiff is entitled to possession, 109. 
 creditor of husband who commenced suit before Act of 1848 may 
 have satisfaction since out of wife's land held before passage of 
 the Act, 110. 
 husband may release curtesy to wife without trustee, 110. 
 husband estopped from claiming, by permitting wife's will to take 
 
 effect as to others, 111. 
 feme sole trader cannot divest husband of, without his assent, 130. 
 husband not entitled where he has neglected or refused to provide 
 for wife, or deserted her for a year before her death, 134. 
 DEBTS, 
 
 of cestui que trust, 
 
 donor may protect trust estate from liability for, 326-331. 
 by directing that income shall not be liable for, 326. 
 these trusts favored by the law, 327. 
 are active trusts, 327. 
 though otherwise passive, 327. 
 cases illustrating this, 327-331. 
 
 of husband, trusts to protect married women and those in 
 contemplation of marraige, against, 310, 314. 
 of married women, 
 
 husband's liability for, not liable for her debts contracted 
 before marriage, 43. See Contracts of Married 
 Women. 
 for necessaries, when wife's separate estate liable for, 37, 38. 
 DEED, 
 
 acknowledgment of, 70-77. 
 
36-2 INDEX. 
 
 DESERTION, 
 
 of wife or children hy husband, or of children hy mother, 172- 
 183. 
 
 wliere husband, without reasonable cause, deserts wife and 
 
 children, 172-179. 
 proceedings in such case, 172-181. 
 by whom complaint to be made, 172-181. 
 before whom, 172-177. 
 where women desert their children, 172-176. 
 law regards desertion as an offence, 178. 
 not indictable, but punishable by imprisonment, 178. 
 where husband is domiciled in another State, 179. 
 desertion in this State, whether parties domiciled here or 
 
 not, distinct offence under Act of 1867, 179. 
 jurisdiction in such case, 179. 
 
 what is reasonable cause which relieves husband from main- 
 tenance, 179. 
 what the warrant for seizure of goods of husband must 
 
 direct, 180. 
 what will justify warrant of arrest, 181. 
 husband may show he had not deserted wife, 181. 
 husband bound over for deserting wife, court cannot order 
 
 payment of weekly sum for support of child, 181. 
 the laws provide for the future support of children, not to 
 
 recover past expenses, 181, 182. 
 father willing to support children, entitled to their custody, 
 
 and suspension of order of court for maintenance, 182. 
 decision of Court of Quarter Sessions not final, 182. 
 certiorari lies from Supreme Court, 182. 
 seizure of husband's property, is subject to rights of credit- 
 ors and all other persons, 183. 
 DISCONTINUANCE, 
 
 of libel in divorce, 226. 
 DIVORCE, 184-243. 
 
 from the bond of matrimony, 184-233. 
 marriage terminated, 184. 
 
 where marriage a nullity from beginning, what the decree, 184. 
 cmises of, 184-205. 
 
 naturally impotent or incapable of procreation, 185. 
 what impotence is, 186. 
 marriage void ab initio, 186. 
 what the great end of matrimony, 186. 
 
INDEX. 363 
 
 DIYOUCK— continued. 
 
 second marriage while first subsisting, 186-189. 
 second marriage is absolutely void, 186. 
 court may decree such marriage void, 187. 
 a question if parties can treat such marriage as void without 
 
 judicial action, 187-189. 
 cases illustrating this, 187-189. 
 on conviction of bigamy, second marriage void, 189. 
 adultery, 189-192. 
 
 what adultery is, 189. 
 
 is a criminal offence, 190. 
 
 uniflarried person cannot be guilty of adultery, 190. 
 
 not necessary to prove direct fact, 190. 
 
 what sufficient proof, 190. 
 
 insanity of wife at time of committing offence no bar to a 
 
 divorce, 190. 
 nature of libel for divorce for adultery, 190. 
 wife or husband guilty of adultery cannot marry participant 
 
 in the crime during life of former wife or husband, 191. 
 this provision applies only in case of divorce for adultery, 191. 
 when condonation good defence to suit for divorce for adul- 
 tery, 191. 
 desertion, 192, 196. 
 
 must be willful and malicious, without reasonable cause, for 
 
 two years, 192. 
 where either party assents to withdrawal of the other, absence 
 
 not wilful and malicious, 193. 
 effect of wife's offer to return to husband, 193. 
 what reasonable cause justifying either in abandoning the 
 
 other is, 193-195. 
 must be such as would entitle the injured party to divorce, 193. 
 proceedings may be commenced six months after desertion, 
 
 195. 
 cruel and barbarous treatment by husband of wife, 196, 197. 
 nature of the cruelty, 196. 
 wherein it differs from indignities offered to wife's person, 
 
 197. 
 ^indignities to wife' s person, 197-199. 
 
 not mere personal indignities, 197. 
 
 must be such as to render her condition intolerable and life 
 
 burdensome, 197. 
 need not be such as to endanger life or health, 189. 
 
364 INDEX. 
 
 condonation implied sufficient to defeat wife's suit, 199. 
 
 if husband's conduct provoked by that of wife, divorce 
 would not be granted, 190. 
 cruel and barbaruus treatment hy wife of liuiband, 199-201. 
 
 must be such as to render husband's condition intolerable 
 and life burdensome, 201, 202. 
 
 need not be such as to endanger life, 201, 202. 
 
 must be cruel and barbarous treatment, not mere indignities 
 to the person, 200. 
 
 jurisdiction of State courts where parties were domiciled in 
 another State when causes of divorce occurred, 201. 
 marriages within the degrees of consaiiguinity or affinity, 201. 
 
 such marriages when void and when voidable, 201, 202. 
 
 void ah initio, if proceedings commenced in lifetime of par- 
 ties, 201, 202. 
 
 their unlawfulness cannot be inquired into after death of 
 either party, 201. 
 marriages procured by fraud, force or coercion, 202. 
 
 what libel must set forth, 202. 
 
 the causes particularly and specially, 202. 
 
 general allegations not sufficient, 202. 
 
 the evidence of fraud must be distinct, 202. 
 conviction of felony, 203. 
 
 must be conviction of felony and not of misdemeanor, 203. 
 
 must be sentenced to imprisonment for over two years, 203. 
 wife lunatic or non compos mentis, 203. 
 
 libel must be exhibited by relative or next friend of hers, 
 203, 204. 
 
 what libel must set forth, 204. 
 absence for two years, and on false rumor of death the other mar- 
 ries again, and unmarried one returns, 204. 
 
 absent one returning entitled to divorce, 204. 
 
 proceedings must be instituted within six months after re- 
 turn, 204. 
 
 what necessary to justify second marriage, 204. 
 
 marriage of minors under age of consent and persons of un- 
 sound mind (except in wife's case) seems to be no power 
 to grant divorce or declare marriage void, 204. 
 loho entitled to sue for, 205. 
 
 any one having a ftom yirfe residence in this State for one 
 year before filing libel, 205. 
 
INDEX. 365 
 
 myORGE—continuecJ. 
 
 jurisdiction in, 206-215. 
 
 belongs to courts of the State where parties are domiciled at 
 time the cause occurred, without regard to locus delicti, 
 except as changed by Acts of Assembly, 206. 
 
 lex loci contractus repudiated, 206. 
 
 how far law changed by Acts of Assembly, 206-210. 
 
 where parties are domiciled in this State and injured party 
 seeks domicil in another, 210. 
 
 where no common domicil, and husband seeks new domi- 
 cil, 210. 
 
 redress in forum of defendant, 211. 
 
 unless defendant has removed from former common domi- 
 cil, 211. 
 
 where husband obtains a divorce in forum of new domicil, 
 wife remaining in this State, her rights not affected, 
 211. 
 
 effect of divorce granted in another State upon rights of par- 
 ties in this, under certain circumstances, 211. 
 
 when Courts of Common Pleas to have jurisdiction of di- 
 vorce for desertion or adultery where parties were domi- 
 ciled in another State at time of occurrence, 212. 
 
 or for personal abuse, or conduct rendering condition intoler- 
 able, &c., where parties were so domiciled in another State 
 or country, 213. 
 
 jurisdiction belongs exclusively to Courts of Common Pleas, 
 214. 
 evidence in, 215-217. 
 
 when testimony of either husband or wife allowed, 215. 
 
 effect of such testimony uncorroborated, 215. 
 
 admissions of respondent will not avail llbellant, 215. 
 
 cannot be compelled to testify against themselves, 215. 
 
 must make out his or her case by independent evidence, 
 215. 
 
 effect of confession corroborated by circumstances, 216. 
 
 effect of confession of accomplice of wife, 216. 
 
 libellant cannot buy silence of respondent, 216. 
 
 note given for such consideration void, 216. 
 
 evidence of the wrong should be clear, opinions and conclu- 
 sions not sufficient, 216. 
 
 acts should be shown, 216. 
 
 threats serious and diabolical are acts, 216. 
 
366 INDEX. 
 
 DlYOnCE,— continued, 
 the suit, 217-220. 
 
 husband, or wife by next friend, to exhibit his or her peti- 
 tion or Ubel to Court of Common Pleas in term time, 217. 
 
 or to a judge in vacation, 217. 
 
 thirty days before next term, 217. 
 
 setting forth cause of complaint, 217. 
 
 accompanied by affidavit, 217. 
 
 what affidavit must set forth, 217. 
 
 subpoena to issue, 217. 
 
 when returnable, 217. 
 
 the return, 217. 
 
 court to make preparatory rules and orders to bring cause 
 to hearing, 218. 
 
 may determine ex parte, 218. 
 
 when an issue shall be formed, 218. 
 
 court may inquire and decide in presence of parties, 218. 
 
 or ex parte — mode of proof, 218. 
 
 if, on return of subpoena, proof is made that respondent can- 
 not be found in the county, alias to issue, 218. 
 
 when returnable, 218. 
 
 how served, 218. 
 
 if, on return of alias, proof is made that party cannot be 
 found in county, notice to be published, 218. 
 
 after hearing cause, court may make decree, 218. 
 
 what decree, 219. 
 
 may award costs, 219. 
 
 either party may appeal to Supreme Court, 219. 
 
 recognizance, with surety, to be given to prosecute appeal 
 with effect, 219. 
 
 no appeal after one year from final decree, 219. 
 the proper court, 220, 221. 
 
 Court of Common Pleas of proper county alone, 220. 
 
 in case of minors under age of consent, or persons of unsound 
 mind, no jurisdiction, except where wife is lunatic or non 
 compos mentis, 220. 
 petition or libel, 221-224. 
 
 causes of complaint, 221. 
 
 with what particularity must be set forth in libel, 221-224. 
 
 sufficient if set forth specially without times and places, 221. 
 
 must be set forth so as to show sufficient cause for the di- 
 vorce within the Act under which libel is filed, 222. 
 
INDEX. 367 
 
 BIYO^GE— continued. 
 
 if, under general allegations of libel, respondent requires a 
 particular statement, lie is entitled, 222. 
 
 if lie goes to trial without demanding it, will be presumed 
 to have waived it, 222. 
 
 but if surprised from want of notice, entitled to a continu- 
 ance, 222. 
 
 libellant confined to particular offences specified, 222. 
 
 same rule applies to answer, 223. 
 
 libel must contain a positive averment of fact of marriage, 
 224. 
 
 must be sworn or affirmed to in the language of the Act of 
 Assembly, 224. 
 
 omission of this fatal, 224. 
 
 before a judge or justice of the peace, 224. 
 
 not before a notary public, 224. 
 service of suhpoena, 224. 
 
 where respondent can be found in the county there must be 
 personal service, 224. 
 
 if, on return of subpoena, proof is made that respondent can- 
 not be found in the county, alias to issue, 218, 224. 
 
 how served, 218. 
 
 if, on return of alias, proof is made that party cannot be 
 found in county, notice to be published by sheriff, 218. 
 testimony how talcen, 224. 
 
 in the manner provided by rules of respective courts, 224. 
 
 if an issue not demanded witnesses may be examined in open 
 court, or upon interrogatories, or by exhibits, or other 
 legal proofs, 225. 
 an issue, 225. 
 
 matter of fact to be tried by jury if either party desires, 225. 
 
 when issue must be demanded, 225, 226. 
 proceedings where respondent is in prison, 226. 
 discontinuance of libel, 226. 
 
 cannot be discontinued without leave of court, express or 
 implied, 226, 227. 
 
 effect of divorce, 228. 
 
 from bond of matrimony, 228. 
 
 annuls marital relation, 228. 
 
 in case of adultery, guilty party cannot marry participant in 
 the crime during the life of the other, 228. 
 
 deprives wife of dower, 228. 
 
368 INDEX. 
 
 mV OliG^— continued. 
 
 divorce procured by fraud, court may vacate decree, 228. 
 how differs from effect of divorce from bed and board, 233. 
 from bed and board, 233-239. 
 
 distinguishing features between this and divorce from bond 
 of matrimony, 233. See ALIMONY. 
 causes of, 233-239. 
 
 malicious abandonment of Ms family hy the husband, or turning his 
 wife out of doors, 235, 236. 
 
 divorce may be applied for and decreed at once, 235. 
 
 object is support of wife, 235. 
 
 where foreigner domiciled here, and he refuses to receive 
 
 wife who follows him, 235. 
 where suit of wife maintained on ground of being turned 
 out of doors, 236. 
 ci~uel and barbarous treatment and indignities to person of wife, 
 236-238. ^ 
 
 law the same as to these causes as in divorce from the bond 
 
 of matrimony for same causes, 236. 
 wife may file bill for divorce from the bond of matrimony or 
 
 for alimony, 236. 
 wife praying divorce from bond of matrimony and alimony, 
 court may decree divorce from bed and board, and ali- 
 mony, 236. 
 alimony to continue until reconciliation, 237. 
 decree only suspended during reconciliation, 237. 
 if husband fails to perform his engagements, former decree 
 
 may be revived, 237. 
 if, after reconciliation, wife leaves husband without just 
 cause, she loses right to alimony ; but if for just cause, 
 decree may be enforced, 237. 
 condonation not a bar to divorce a mensa et thoro, 237. 
 effect of husband's offer to receive his wife again, 237, 238. 
 question for court whether offer is bond, fide, 238. 
 adultery, 
 
 wife may have a divorce with alimony, or one from the bond 
 
 of matrimony, 238. 
 in addition to alimony what the court may decree to her, 
 238. See Alimony ; Alimony pendente lite. 
 DOWEK, 
 
 at common law, 137. 
 
 belongs to both legal and equitable estates, 138. 
 
INDEX. 369 
 
 DOWEK — continued. 
 
 widow dowable of a vested remainder in husband, dependent upon a 
 
 freehold estate in another, 138. 
 widow's share to be in lieu of dower, 152. 
 devise or bequest to be in lieu of dower, but wife may elect, 138- 
 
 144. 
 where husband aliens land during coverture, without joinder of 
 
 wife, 140. 
 action of dower not to abate by death of plaintiff, 154. 
 modes by which dower may be barred, 154. 
 EARNINGS OP WIPE, 95. 
 belong to husband, 95. 
 
 so property purchased with her earnings, 95. 
 
 and property purchased with joint earnings of husband and 
 
 wife, 95. 
 unless earned in management of her separate property , 
 
 95. 
 or after petition to court under Act of 1872, 95. 
 or during desertion of husband, 96. 
 ELECTION, 
 
 by widow not to take under husband's will, 138-144. 
 
 wife may take share in real and personal estate as if husband had 
 
 died intestate, 139, 140. 
 where husband aliened land during coverture, without wife joining 
 in conveyance, questionable if widow be not entitled to dower at 
 common law therein, 140. 
 where section 11 of Act of 1848 does and does not apply, 141. 
 by matter in pais, 143. 
 when bound by, 142. 
 where done freely and deliberately with full knowledge of the facts 
 
 and her rights, 142. 
 when deemed to have made her election, 142. 
 takes in lieu of dower, and cannot by voluntary breach of condition 
 
 of tenure restore dower, 143. 
 proceedings to compel election, 143, 144. 
 ENTIRETIES, ESTATES HELD BY, 109. 
 EVIDENCE, 
 
 in divorce, 215-217. See Divorce. 
 of ownership of property by wife, 88. See Propeett. 
 EXECUTORS AND ADMINISTRATORS, 
 
 remainders to, after life estate in personal property, carries absolute 
 property, 341. 
 24 
 
370 INDEX. 
 
 EXEMPTION, 
 
 of three hundred dollars for widow and famUy, 156-164. 
 
 widow or ehildren may elect to retain real or personal pro- 
 perty to value of three hundred dollars, 156. 
 
 executor or administrator to have the property appraised, 156. 
 
 not to impair liens for purchase-money of real estate, 156. 
 
 may retain bank notes, money, stocks, judgments, or other 
 indebtedness, 156. 
 
 where claimed out of real estate which cannot be divided 
 without spoiling the whole, 157. 
 
 design of the provision, 157, 158. 
 
 fund retained vests in widow, 158. 
 
 intrusted with it for benefit of herself and children, 158. 
 
 confirmation of appraisement in an adjudication of the pro- 
 perty to her, conclusive against all the world, 158. 
 
 entitled against debts, not hers, contracted before passage of 
 Act, 158. 
 
 entitled, exclusive of her share under Intestate Act, 158. 
 
 whether intestate, solvent, or insolvent, 158. 
 
 whether widow elects to take under will or not, 158. 
 
 against whom entitled out of proceeds of sale of real estate 
 158. 
 
 against whom postponed, 158. 
 
 widow not entitled under all circumstances, 159-164, 
 
 where she has deserted her husband, 159. 
 
 where they have lived separate, 159. 
 
 where she was never lawful wife, 159. 
 
 where divorced a mensa et thoro, 160. 
 
 family relation must continue, at least in contemplation of 
 law (Hettrick v. Hettrick, 5 P. F. S. 290; Terry's 
 Appeal, lb. 344), 160. 
 
 Act contemplates wife who lives with husband and performs 
 her duties, 160. 
 
 when appraisement should be made, 160. 
 
 immediately after administrator has qualified, 160. 
 
 when claim must be made, 160. 
 
 not entitled to proceeds of real estate sold for payment of 
 debts, where no election made before sale, 161. 
 
 may claim out of proceeds of real estate sold in process of 
 
 administration, 161. 
 claim is too late if not made until expenses incurred in pro- 
 ceedings to sell estate, 161. 
 
INDEX. 371 
 
 EXEMPTION— conft«Me(7. 
 
 widow may waive riglit, 161. 
 
 how she may waive it, 161-163. 
 
 waiver once made past recall, 162, 
 
 money, notes, and evidences of debt, need not be appraised, 
 
 162, 163. 
 widow cannot require property to be sold to give her money 
 
 instead of goods, 163. 
 Orphans' Court cannot order sale of real estate for this pur- 
 pose, 163. 
 when her claim a charge upon the land, 163, 164. 
 benefit of the Act ordinarily under supervision of Orphans' 
 Court, 164. 
 
 exception to this, 164. 
 wife may retain property under the Domestic Attachment Act, 164. 
 FELONY, 
 
 conviction of, a cause of divorce, when, 203. See Divorce. 
 FEME SOLE TRADEKS, 125-131. 
 who are, 125. 
 may sue and be sued, 125. 
 how execution to issue, 125. 
 when husband shall not provide for wife, she may, under Act of 
 
 1855, petition court and have the privileges of, 126, 127. 
 may hold property without decree, 127. 
 rights and privileges not correlative to liabilities, but former more 
 
 extensive, 127. 
 wife whose husband from sickness cannot support her, not thereby 
 
 feme sole trader, 128. 
 Act has reference to wilful neglect from a depraved life, &c., 128. 
 may be sued without naming husband, 128. 
 may maintain an action in her own name, 128. 
 Act of 1718 concerning, applies only to wives whose husbands have 
 
 gone to sea, 128. 
 wife not liable as, under Act of 1718, as extended by Act of 1855, 
 
 unless engaged in some business, 128. 
 purposes and objects of becoming, governed by Act of 1718, Act of 
 
 1855 multiplying conditions, 129. 
 purpose of granting the privilege is to enable wife by a trade, &c., 
 
 to acquire means of support, 129. 
 unless liability of wife occurs for necessary purposes of her trade 
 
 she is not liable on her contracts, 129. 
 cannot divest husband of his curtesy without his assent, 130. 
 
372 INDEX. 
 
 FORCE, 
 
 a marriage procured by, a cause of divorce, 202. See Divorce. 
 FRAUD, 
 
 marriage procured by, a cause of divorce, 202. See Divoece. 
 FRAUDS OF WIFE, 
 
 husbands' liability for, 46. 
 FUNCTIONS A MARRIED WOMAN MAY PERFORM, 166, 167, 
 345-352. See Acts and Functions a Married Woman may 
 Perform. 
 GIFTS, 
 
 by husband to wife, 26-32. See Contracts between Husband 
 
 AND Wife; Grants and Gifts by Husband to Wife. 
 by wife to husband, 32-35. See Contracts between Hus- 
 band and Wipe ; Gift or Loan from Wife to Husband. 
 power of husband over his personal property by gift, inter vivos, 
 absolute, as against wife and children, 137. 
 GRANTS, 
 
 by husband to wife, 26-32. See Contracts between Husband 
 AND Wife. 
 GROUND RENT, 
 
 land may be conveyed to wife on, and she takes subject, 61. 
 " HEIRS," OR " HEIRS OP HIS BODY," 
 words of limitation, 255. 
 may mean children, 259. 
 
 but intention must be clear, 259. 
 effects of superadded words of limitation or distribution, 260. 
 in conveyance by deed cannot be qualified by implication, 260. 
 
 See Shelley's Case, Rule in. 
 heirs general or special of tenant for life, remainder to persons 
 standing in that relation, presumption of law as to whether words 
 of limitation, 272, 273. See Shelley's Case, Rule in. 
 HUSBAND AND WIFE, 
 
 contracts between, 26-37. 
 
 grants and gifts by husband to wife, 26-32. 
 gift or loan by wife to husband, 32-35. 
 how far wife may bind husband by her contracts, 37—46. 
 while living together, 37-43. 
 while living apart, 43—45. 
 necessaries furnished wife, 47-52. 
 mechanics' liens, 54. 
 
 sale or mortgage of real estate by wife, 60-64. 
 purchase of property by wife, 64. 
 
INDEX. 373 
 
 HUSBAND AND WWE— continued. 
 
 sale of personal property by wife, 65. 
 
 conveyance of real estate by wife, 66-68. 
 
 agreements for sale of real estate by wife, 68-70. 
 
 curtesy, tenancy by, 105-112, 130. See Contracts of Married 
 
 Women. 
 conveyance of real estate to, effect of, 112. 
 husband as wife's agent, 77. 
 wife as husband's agent, 37-45. 
 as witnesses for or against each other, 120. 
 feme sole traders, 125. 
 
 wife's power to dispose of property as against husband, 133. 
 acts and functions wife may perform, 166, 167. 
 desertion of wife by husband, 172. 
 husband's estate, rights of wife in, 137. 
 husband's power over his personal property by gift inter vivos, 
 
 absolute as against wife and children, 137. 
 husband who elects not to take under wife's will, to what entitled, 
 1.34. 
 ILLEGITIMATE CHILDREN, 168. 
 to take name of the mother, 168. 
 mother and children may take and inherit real and personal estate 
 
 from each other, 168. 
 and transmit same under intestate laws, 169. 
 this does not make the children legitimate, 169. 
 Act is confined, as to the children, to property taken or inherited 
 
 from mother, 169. 
 if child survives mother and dies without issue, mother's next of 
 
 kin would not take, 169. 
 illegitimate and legitimate children to share equally in proceeds of 
 
 real estate of mother, 169. 
 certain children born within degrees of affinity, to have same rights 
 as if born in lawful wedlock, 347. 
 IMPOTENT, OR INCAPABLE OF PROCREATION, NATURALLY, 
 
 A CAUSE OF DIVORCE, 185. See Divorce. 
 INCESTUOUS MARRIAGES, 
 
 within degrees of consanguinity and aifinity, marriage void, 18. 
 table of consanguinity and afiinity, 19, 20. 
 
 if marriage not dissolved in lifetime of the parties, cannot be in- 
 quired into after death of either, 20. 
 INDIGNITIES TO WIFE'S PERSON, 
 
 a cause of divorce, 197-199, 236-238. See Divorce. 
 
374 INDEX. 
 
 INJUNCTION, 
 
 where wife's title is clear, creditors of husband will be restrained 
 from selling her property for his debts, 96. 
 INSANITY, 
 
 if wife decreed insane by court, husband to manage and dispose of 
 
 her estate, as he could if wife sane and consented, 168. 
 of wife cause of divorce upon petition of her next friend, 203, 
 204. 
 INSUEANCE OF HUSBAND'S LIFE, 
 wife may make, 346. 
 feme sole traders, 125. 
 INTESTACY, 
 
 of husband, 137, 138. 
 
 where intestate leaves widow and issue, 137. 
 where he leaves a widow and collateral heirs, but no issue, 138. 
 where he leaves a widow, but no known heirs or kindred, 138. 
 share to be in lieu and satisfaction of dower, 138. 
 of wife, husband entitled to letters of administration, 135. 
 how estate distributed, 135, 352. 
 
 where intestate leaves a wife or husband, and no heirs or known 
 kindred, court may decree balance in administrator's hands to 
 surviving wife or husband, 352. 
 ISSUE, 
 
 bequest of personal estate for life, remainder to, 340. 
 
 does not confer an absolute interest, 340. 
 
 remainder-men take as purchasers, 340.- 
 
 personal estate not capable of entail, 340. 
 
 " issue" not construed heirs of the body, in personalty, 340. 
 
 rule as to real estate in case of devise in fee, but " if he die without 
 
 issue," &c., 341. 
 estate tail passes, 341. 
 
 word of doubtful meaning generally word of limitation, 25S. 
 ISSUE IN DIVORCE, 225. See Divorce. 
 JURISDICTION, 
 
 in divorce, 206-215. See Divorce. 
 LEASE, 
 
 of real estate to wife valid, unless husband dissents, 64. 
 
 of real estate by wife must be acknowledged (see Harbert v. IMiller, 
 
 4 Weekly Notes, 325), 67. 
 of wife's real estate, held to her separate use, or if abandoned by 
 husband, or of husband's real estate, if wife be lunatic, or a 
 minor, courts may decree, 347. 
 
INDEX. 375 
 
 LEGAL REPRESENTATIVES, 
 
 remainder to, after life estate in personal property, carries absolute 
 
 property, 341-343. 
 remainder to, of tenant for life, had she died a widow, under intes- 
 tate laws, in personal property, carries a life estate, 342. 
 LIBEL IN DIVORCE. ySee Divorce ; Petition or Libel. 
 LIFE OP HUSBAND, 
 
 wife may insure, 346. 
 LIMITATION, 
 
 " heirs," or " heirs of his body," words of, 255. 
 
 unless intention of testator requires them to be words of purchase, 
 
 225. See Shelley's Case, Rule in. 
 of remainder to persons standing in the relation of general or 
 special heirs of tenant for life, presumption of law as to whether 
 words of limitation or purchase, 272, 273. 
 LOAN, 
 
 by wife to husband, 32-35. 
 
 may loan to husband and take judgment or mortgage in name of a 
 
 trustee as security, 32, 33. 
 may loan to husband or a stranger, 33-35. See Contracts of 
 Married Women. 
 LUNATICS, OR NON COMPOTES MENTIS, 
 
 in case of wife, she may be divorced, 203, 204. 
 no power in courts to divorce lunatic husband, 204. 
 MARRIED WOMAN, 
 
 who is, 1-17. See Marriage. 
 MARRIAGE, 1-17. 
 how made, 1. 
 by whom, 1. 
 is a civil contract, 1. 
 essence of the contract, 
 
 consent freely given by parties competent to contract, 1. 
 per verba de prsesenti, 2. 
 
 j)er verba de/uturo, followed by consummation, 2. 
 may be proved like other contracts, 4. 
 by positive evidence, 4. 
 by presumptive evidence, 5. 
 by reputation and cohabitation, acknowledgments or admissions, 5, 
 
 et seq. 
 charge of Mr. Justice Biddle, 9, n. 3. 
 exceptions in civil actions for seduction or adultery, 5. 
 or public prosecutions for bigamy or adultery, 5. 
 
376 INDEX. 
 
 BIAKRIAG-E — continued. 
 
 where original connection was illicit, 9. 
 
 where original connection was under a void contract of marriage, 15, 
 
 repute and admissions must be part of the res gestx, 16. 
 
 void and voidable marriages, 18-24. 
 
 incestuous marriages, 18-24. 
 
 absence of consent, 21-23. 
 
 minors under age of consent, marriage voidable, 21. 
 
 persons of unsound mind, 21. 
 
 marriage by force or fraud, 21. 
 
 husband or wife living, 22. 
 
 marriage void, 22. 
 
 punishable by fine and imprisonment, 22. 
 
 though void, the nullity should be decreed by court of competent 
 
 jurisdiction, 23. 
 sufficient to establish nullity if party injured prosecute offender to 
 
 conviction for bigamy, 23. 
 second marriage while first subsisting, a cause of divorce, 186-189. 
 
 See Divorce. 
 certain marriages within degrees of affinity legalized, 347. 
 married women, trusts for. See Teitsts. 
 
 women in contemplation of, trusts for. See Trusts. 
 MECHANICS' LIENS, 54. 
 
 filed against husband alone as owner, describing wife's lot as his, 
 
 does not bind wife's lot, 54. 
 only binds any estate held in his own right, 54. 
 his curtesy cannot be sold under it, 54. 
 if husband builds on wife's land with her consent the land is bound, 
 
 55. 
 what the claim must contain and show on its face to bind wife's 
 
 land, 55, 56. 
 MINORS, 
 
 under age of consent, marriage of, power of courts to grant divorce 
 
 or declare marriage void, 204. 
 who are married women may unite with husband in conveying his 
 
 real estate, 346. 
 may draw checks, 345. 
 under age of consent, marriage voidable, 21. 
 MORTGAGE, 
 
 wife's capacity to mortgage her real estate, 60-64. 
 
 may mortgage for husband's debts, present or future (see Twitchell 
 
 V. McMurtrie, 4 Weekly Notes 419), 60. 
 
INDEX. 377 
 
 M.OB.TGAQ'E— continued. 
 
 may prescribe terms and waive privileges, 61. 
 
 may covenant that scire facias may issue on default of payment of 
 debt, 61. 
 
 and in default of paying interest, principal may be collected, 61. 
 
 but in mortgage for husband's debt cannot bind her land for ex- 
 penses of collecting, 61. 
 
 land may be conveyed to her on ground-rent and she takes subject, 
 61. 
 
 cannot assume liabilities as a member of a building or loan associa- 
 tion, and if she mortgage to secure loan from, how far her mort- 
 gaged estate liable, 61, 62. 
 
 may mortgage to secure debt of this kind for husband who is such 
 member, 62. 
 
 may preclude herself from taking advantage of defective judgment 
 entered on mortgage, 62, 63. 
 
 where wife's estate is mortgaged for husband's debt she is surety, 
 and entitled to good faith from all parties, 64. 
 
 and entitled to all the rights of surety as against her husband, 64. 
 
 wife's real estate held to separate use, or if abandoned by husband, 
 or the husband's real estate, if she be lunatic or a minor, mort- 
 gage of may be decreed by court, 347. 
 
 Act to validate mortgage of wife's real estate, 84, 85. 
 NECESSARIES, 
 
 what are, 50. 
 
 furnished wife, husband's liability for, 37-46. See Contkacts of 
 Married Women. 
 
 how far wife liable for, 47-52. See Contracts op Married 
 Women. 
 OBLIGATIONS, 
 
 personal, wife cannot execute, 56. 
 
 reciprocal of husband and wife, 24. 
 PARTITION, 
 
 money awarded wife is not to be paid husband without security, 
 350. 
 
 release of wife's share to husband, he holds in trust for her, 104. 
 
 of deceased husband's real estate, 144-147. 
 
 Orphans' Court has power to appoint seven or more disinterested 
 persons with consent of parties to make, 144. 
 
 or, if parties cannot agree, to award an inquest, 145. 
 
 on application of widow, or lineal descendant, and if minor, by 
 guardian, 144. 
 
378 INDEX. 
 
 VARTlTlON—co7itinued. 
 
 proceedings therein, 145-147. See Keal Estate, Widow's share 
 
 IN HER Husband's Keal Estate. 
 widow's share and how secured and recovered, 145-147. 
 may be assigned to her by metes and bounds, 147. 
 where she elects not to take under her husband's will, 147. 
 jurisdiction of courts where lands lie in different counties, 153. 
 PASSIVE OR SIMPLE TRUSTS, 283-310. See Trusts, Active 
 
 AND Passive. 
 PETITION IN DIVORCE, 221-224. See Divorce, Petition or Libel. 
 POOR LAWS, 
 
 settlement of married women under, 170. 
 
 husband's settlement is the wife's settlement, 170. 
 if he have none, her last place of settlement before mar- 
 riage, 170. 
 upon husband's death, wife may acquire different settlement 
 
 from his, 170. 
 wife divorced a m.ensa et thoro for cruel and barbarous treat- 
 ment, may acquire a settlement in her own right, 170. 
 order of removal of wife not defective because it does not 
 appear therein that husband had no known legal settle- 
 ment, 171. See Settlement op Married Women 
 under Poor Laws. 
 POWER OF APPOINTMENT, 
 effect of, 319-326. 
 
 where estate is given generally or indefinitely with power of dispo- 
 sition, carries a fee, 319. 
 if expressly for life, with power of disposition of reversion, will 
 
 not carry a fee, 319. 
 this rule blended with the rule in Shelley's case, 320-326. 
 this constmction of the law discussed, 320-326. 
 not affected by restriction upon wife in the disposition of her pro- 
 perty by will, as to husband, 133. 
 POWERS OP CESTUI QUE TRUST,MAnB.I^T> OR IN CON- 
 TEMPLATION OP MARRIAGE, 
 
 object of settlement in these cases, 332. 
 cestui que trust has no power not positively given, 332-334. 
 PRECEDENT, 
 
 decision upon one will rarely forms precedent for decision upon 
 another, 281, 282. 
 PRISON, 
 
 proceedings in divorce where respondent is in, 226. 
 
INDEX. 379 
 
 PEOMISSORY NOTES, 
 
 wife's capacity to make, 5Y. See Contracts of Married Wo- 
 men, Writings Obligatory or other Personal Obliga- 
 tions. 
 PROPERTY, 
 
 wife's rights of, 79-113. 
 before Act of 1848, 79. 
 after Act of 1848, 79-113. 
 
 Act preserves to wife her property, 79. 
 
 what she had before marriage or accrues afterwards, 79. 
 
 subject to husband's curtesy, 79. 
 
 Act does not apply to property of wife vested in husband 
 
 before its passage, 80. 
 is not retroactive, 80. 
 this would be unconstitutional, 80. 
 wife not a feme sole as to her property, under the Act, 81. 
 
 originally held otherwise, 80. 
 holds her property as if settled to her sole and separate use during 
 coverture, 81. 
 
 Act intended for her protection, 81. 
 
 must receive such construction as will promote that object, 81. 
 
 is in derogation of common law, and must be confined to 
 
 objects plainly expressed or necessarily implied, 81. 
 marital relation with its rights and duties not abrogated, 81. 
 not an enabling, but a restraining and remedial act, 81. 
 its object preserves wife's property against husband's credit- 
 ors, 81. 
 how it does this, 81. 
 
 at common law wife can hold no separate estate in lands, 81. 
 such estate recognized only in equity, 81. 
 if lands be given to wife's separate use, and iio trustee named, 
 she takes equitable estate, and husband will be converted 
 into trustee, 81. 
 under the Act, wife's estate legal, unless otherwise provided 
 
 in conveyance, 82. 
 the same rule applies to property wife held before marriage 
 
 and that acquired afterwards, 82. 
 if expressly conveyed to her separate use, estate equitable, 82. 
 in this case could convey only by an express power in deed, 
 
 82. 
 could only exercise such powers as are given or reserved in 
 instrument creating the trust, 82. 
 
380 INDEX. 
 
 VROV'E'RTY—contmiirjL 
 
 Act does not unfetter estate q^ feme covert settled to her sole 
 and separate use, 83. 
 
 Act recognizes separate estate in a married woman, 83. 
 
 and if conveyance is to wife's use simply, her estate is legal, 83. 
 
 if to her separate use, equitable, 83. 
 Act of 1863 to validate conveyances and mortgages of wife's sepa- 
 rate estate, 84, 85. 
 where wife had no right or power to convey during coverture, the 
 Act of 1863 did not validate a conveyance made by her husband 
 and herself, 85. 
 
 Legislature had no power to validate conveyance against her 
 heirs, 85. 
 
 title of wife must be clear as against creditors of husband, 
 85-91. 
 
 must show that she owned the property at time of marriage, 
 or acquired it afterwards by gift, descent or purchase, 85. 
 
 in case of purchase after marriage, must prove she paid for 
 it with funds not furnished by husband, 86. 
 
 must prove that she owm her property, not merely that she 
 purchased it, 86. 
 
 not merely that she had the means of paying, but, in fact, 
 thus paid, 86. 
 
 presumption of law is husband furnished the means, 86. 
 
 that wife, without separate estate, gave her note for consider- 
 ation money alone, not enough to give her title, 86. 
 
 presumption of law is, that money in possession of wife 
 belongs to husband, 86, 87. 
 
 even though she has estate settled to her separate use, 86. 
 
 if she purchase property, presumption of law is she used 
 husband's money, 86, 87. 
 
 rule the same as to real and personal property, 87. 
 
 in contest between creditors of husband and purchasers for 
 valuable consideration, or mortgagees under her, rule 
 different, 87. 
 
 as against a mere wrong-doer, rule different, 88. 
 
 presumption where, before Act of 1848, judgment was con- 
 fessed to husband and wife for sole and separate use of 
 wife, ownership to be determined on sufficiency of proof, 
 as in other cases, 88. 
 
 not required that her case must be made clear beyond doubt, 
 
INDEX. 381 
 
 VROTEUTY— continued. 
 
 possession of wife's property by husband not proof of title 
 
 in him, 88. 
 where specific performance of contract as to wife's real 
 estate is sought by wife, what bill should aver as to title, 90. 
 statement of facts must show wife's title beyond doubt, 90. 
 rule does not apply where daughter seeks to charge father 
 with property as administrator of mother, 90. 
 wife having no separate estate cannot acquire property on her per- 
 sonal credit, as against her husband's creditors, 91-93. 
 
 if she purchase real estate and give mortgage for purchase- 
 money, property not protected from husband's creditors, 91. 
 cannot assume title to lands by mere agreement to purchase 
 and applying to payment products of land and labor of 
 husband, herself and children, 91. 
 further illustrations of this rule, 91-93. 
 wife may acquire property upon the credit of her separate estate, 
 
 93, 94. 
 earnings of wife, 95. 
 
 belong to husband, 95. 
 
 so property purchased with her earnings, 95. 
 
 and property purchased with joint earnings of husband and 
 
 wife, 95. 
 unless earned in the management of her separate property, 95. 
 or after petition to court, under Act of 1872, 95. 
 or during desertion of husband, 96. 
 where wife's title is clear, creditors of husband will be restrained 
 
 from selling her property for his debt, 96. 
 choses in action of wife, reduction into possession by husband, 97-105. 
 husband cannot reduce them into possession since Act of 
 
 1848, though belonging to wife before its passage, 97. 
 could before the Act of 1848, 98. 
 questions may arise whether he has done so, 98. 
 what constitutes reduction into possession, 98-105. 
 in partition of land, releases of wife's share to husband, he holds in 
 
 trust for wife, :f04. 
 personal, wife's capacity to alien and transfer, 65. 
 
 may give it to husband, but not to a stranger without his 
 
 knowledge or against his consent, 65. 
 may sell and transfer railroad stock, loans of the Common- 
 wealth and of the City of Philadelphia, and loans and 
 stocks of certain corporations, 65, 345. 
 
382 INDEX. 
 
 PROPERTY— confonaed 
 
 acknowledgment of deed for personal property, 77, 346. 
 husband's power over his personal property by gift inter 
 
 vivos, absolute, 137. 
 bequest of in language that would create an estate taU, or 
 
 fee in real estate, vests absolutely, 340. 
 fxAa applies to cases that would, if realty, come within the 
 
 rule in Shelley's case, 340. 
 this rule does not apply to personal property, 340. 
 trust of personal property for separate use of married woman, 
 income to be paid over during life, remainder to right 
 heirs, an active trust, 340. 
 bequest for life, remainder to issue, 340. See IsSTJE ; 
 
 Bequest of Personal Estate Eoa Life. 
 bequest in trust to receive and pay over income for life, re- 
 mainder to executors, administrators, &c., carries absolute 
 property, 341. 
 bequest in trust to receive and pay over income for life, re- 
 mainder to life tenant's legal representatives, had she died 
 a widow, under intestate laws, carries a life estate, 342. 
 remainder to executors, administrators, &c., after life estate, 
 
 carries absolute property, 341. 
 remainder to legal representatives carries absolute property, 
 341. 
 real, wife's capacity to mortgage, 60. 
 
 to sell, 60, 66. See Keal Estate. 
 PROTECTION, 
 
 of cestui que trust against his debts, 326-331. See Debts. 
 of married women, trusts for, 310-314. See TE,us*rs. 
 of women in contemplation of marriage, trusts for, 314-319. See 
 Tkusts. 
 PURCHASE, 
 
 may take property by purchase with husband's assent, 64. 
 
 lease to her is good unless husband dissents, 64. 
 
 title to land will vest in her though encumbered with a condition, 
 
 64. 
 though her note given for purchase-money be irrecoverable, the deed 
 is not void, 65. 
 PURCHASE-MONEY OP WIPE'S REAL ESTATE, 
 
 her power to contract for payment of, 59. See Real Estate. 
 received by husband, is hers, since Act of 1848, 104, 105. 
 otherwise before that Act, 104. 
 
INDEX. 383 
 
 REAL ESTATE, 
 
 purchase-money of real estate, wife's power to contract for payment 
 
 of, 59. 
 her power to purchase gives her power to contract for payment of 
 
 the purchase-money so far as to charge the land, 59. 
 wife's capacity to sell or mortgage her real estate, 60. 
 may take by purchase, 64. 
 
 repairs and improvements of wife's real estate, her capacity to con- 
 tract for, 52-54. 
 
 liable for these generally, 52. 
 
 if made by her husband, she cannot be charged for more 
 than she consents to, 54. 
 wife's capacity to convey, 66-68, 346, 347. 
 cannot convey by deed unless her husband joins, 66. 
 nor mortgage, 66. 
 where language of deed is that of wife alone, but husband 
 
 signed, sealed, and acknowledged it, suflScient, 67. 
 desertion by husband cannot make good her separate deed, 67. 
 wife cannot execute a lease without joinder of husband and acknowl- 
 edgment (see Harbert v. Miller, 4 Weekly Notes 325), 67. 
 how she may empower her husband to dispose of her property, 67. 
 though deed acknowledged, until delivered, wife may revoke her 
 
 assent, 67. 
 she dying before delivery of deed, her estate eo instanti vests in her 
 heirs, 67. 
 
 might be different if deed were delivered in escrow, 68. 
 conveyance to husband and wife, 112. 
 
 neither tenancy in common nor joint tenancy, 112. 
 they hqld by entireties, 109. 
 purchaser at sheriff's sale of husband's interest cannot recover pos- 
 session during wife's life since Act of 1848, 109. 
 estate conveyed to husband for joint benefit of himself and wife and 
 
 survivor, subject to execution, 112. 
 widow's share in her husband's real estate, 144. 
 assignment of, 144-148. 
 how assigned, 144. 
 on whose petition assigned, 144. 
 proceedings to procure assignment, 144, 145. 
 inquest, or seven or more persons to make partition, 144, 
 
 145. 
 if cannot be divided without prejudice to the whole, to be 
 appraised and to whom ordered by the court, 145. 
 
384 INDEX. 
 
 EEAL EST AT'E— continued. 
 
 if heirs refuse to take at valuation, sale to be decreed, 146. 
 widow's share to be valued and charged on premises, 145. 
 to be in lieu of dower, 146. 
 how secured, 146. 
 
 may be recovered by distress or otherwise, 146. 
 may be assigned to her by metes and bounds, 146. 
 before assignment of what seized, 147. 
 widow's interest where she elects not to take under her hus- 
 band's will, 147. 
 widow's share, nature of, 148, 149. 
 
 an estate in nature of rent-charge, not a mere lien, 
 
 148, 149. 
 bound by a judgment, 149. 
 
 may be seized and sold in execution for payment of 
 debts, 149. 
 remedy to recover share, 149—152. 
 
 ejectment will not lie before assignment, 150. 
 
 if husband dies seized and intestate, proceeding must be by 
 
 petition to Orphans' Court, 150. 
 may maintain action of dower if the land is in possession of 
 
 another claiming by adverse title, 151. 
 and where husband aliened land during coverture, wife not 
 joining, 151. 
 rents and profits, when equity may decree account of, 152. 
 widow's sharr to he in lieu of dower at common law, 152. 
 if husband aliens lands, without wife joining in conveyance, she may 
 claim her share in his estate and dower in lands so conveyed, 
 152, 153. 
 partition of decedent's real estate, 144-147. See Partition. 
 wives who are minors may join in conveying husband's real estate, 
 
 346. 
 wives may make and take conveyances to square and adjust lines of 
 real estate, under decree of court, 349. 
 RECORDING ACTS, 
 
 married women bound by, 68. 
 REPRESENTATIVES, 
 
 legal, remainder to after life estate in personal property, carries 
 
 absolute property, 341-343. 
 legal, of tenant for life, had she died a widow, under intestate laws, 
 remainder to, carries a life estate in personal property, 342. 
 RULE IN SHELLEY'S CASE. See Shelley's Case, Rule in. 
 
iNDisx. 385 
 
 SALE, 
 
 of wife's real estate held to her separate use, or if abandoned by 
 husband, or the husband's real estate if she be lunatic, or a 
 minor, courts may decree, 347. 
 SECURITY, 
 
 wife may give security in Orphans' Court, and bind her estate on 
 
 receiving bequest to her for life, 350. 
 money awarded wife in partition, not to be paid husband without 
 security, 350. 
 SELL OR MORTGAGE WIPE'S REAL ESTATE, 
 her capacity to, 60-64. 
 may sell with consent of her husband, 60. 
 
 must unite with him in conveyance, but separate . in acknowledg- 
 ment, 60. 
 may sell upon such conditions as she chooses, 60. 
 SEPARATE ESTATE IN LANDS. ;See Conveyance ; Moetgage; 
 Real Estate. 
 wife cannot hold at common law, 81. 
 SEPARATE USE, 
 
 conveyance to wife to, estate equitable, 83. See Trusts ; Use. 
 SEWING MACHINES, 
 
 wife's contracts for, binding, 51. 
 SETTLEMENT, 
 
 of married women under poor laws, 170, 171. 
 in place where husband last settled, 170. 
 
 if he have no known, then where she was last settled before mar- 
 riage, 170. 
 feme sole on marriage, takes husband's, 170. 
 
 if he has none retains maiden one until she acquires another, 
 170. 
 widow retains husband's, 170. 
 
 wife divorced a vinculo matrimonii, retains husband's, 170. 
 widow may acquire a new one, 170. 
 headship of family gives that of father to his children, 170. 
 
 and to mother on his death, 170. 
 wife divorced a mensa et fhoro for cruel and barbarous treatment, 
 &c., and deserted by husband, may acquire settlement in her 
 own right, 170. 
 order of removal of a married woman not defective because it does 
 not appear husband had no known legal settlement, 170, 171. 
 this might be amended, 171. 
 court will not presume he had one, 171. 
 25 
 
386 INDEX. 
 
 SETTLE m^NT— continued. 
 
 nor make any intendment against the order, 171. 
 cannot separate wife from husband by an order of removal, 171. 
 SHELLEY'S CASE, EULB IN, 
 
 closely interwoven with land titles, 252. 
 
 what the rule is, 252. 
 
 effect of rule as to quantity of estate, 252. 
 
 rule applies only where freehold and remainder are of same quality, 
 
 252. 
 must ascertain if remainder-man takes as heir or as purchaser, 253. 
 principles governing the adjudicated case, 253. 
 remainder-men must take as heirs of grantee or devisee for life, 253. 
 as heirs generally, or of the body, as such, 253. 
 intention of grantor or devisor to be first ascertained as to this, 254. 
 eiFeot of this upon intention that life-tenant takes but life estate, 254. 
 tendency of judicial mind to follow intent of donor, 254, n. 1. 
 words " heirs," or " heirs of his body," words of limitation, 255. 
 unless intention of testator requires them to be words of purchase, 255. 
 cases illustrating this, 255, et seq. 
 words "son," "children," &c., words of purchase, 258. 
 may be used by the testator as " heirs of the body," 258. 
 
 rarely so used, 258. 
 " issue" of doubtful meaning, generally word of limitation in will, 258. 
 remainder to children distributively as tenants in common, incon- 
 sistent with taking as heirs in tail, 259. 
 
 case stronger when there are superadded words of limita- 
 tion, 259. 
 words " heirs of the body," or " issue," may mean " children," and 
 " children" may mean " heirs of the body," 259. 
 but intention to use them must be clear, 259. 
 such the rule in wills, 259. 
 
 the question is did testator intend to so use them, 260. 
 technical words of limitation as " heirs of the body," in conveyance 
 
 by deed, cannot be qualified by imphcation, 260. 
 effect of superadded words of limitation or distribution on words of 
 procreation in wills or deeds, 260, et seq. 
 
 will not turn such words into words of purchase, unless 
 
 superadded words denote a different species of heirs, 260. 
 
 devise to lawful iss\ie,2)rima facie a limitation to heirs of the body, 260. 
 
 more than words of distribution required to limit this prima 
 
 facie effect, 261. 
 cases illustrating this, 261, et seq. 
 
INDEX. 387 
 
 SHELLEY'S CASE, EULE IN— continued. 
 
 remainder to " lawful issue in equal shares" (Ogden's Appeal), 261, 
 
 262. 
 remainder to " right heirs," " to them, their heirs, executors, admin- 
 istrators and assigns forever" (Physick's Appeal), 264. 
 remainder to " right heirs," " their heirs, executors, administrators 
 
 and assigns forever" (Nice's Appeal), 266. 
 intent of donor followed, if not contrary to law, 267. 
 if he means to limit estate to the heirs of life-tenant, estate of in- 
 heritance vests, 267, 268. 
 
 even though the intent to give first taker but a life estate is 
 clear, 265. 
 if in certain persons though the same as heirs at law, life estate not 
 
 enlarged, 268, 269. 
 remainder by any form of words to those whom the law points out 
 as the general or lineal heirs of first taker, enlarges life estate to 
 fee or fee tail, 268, 273. 
 
 this by analogy to the rule in Shelley's case, 269. 
 cases illlustrating this, 268, et seq. 
 remainder to those who would be entitled if life-tenant " had died in- 
 testate, seized of the premises in fee simple" (Dodson v. Ball), 269. 
 remainder to those who would be entitled, in case the life-tenants 
 " had survived their respective husbands, and died intestate, seized 
 thereof in fee simple" (Yarnall's Appeal), 271. 
 remainder to persons standing in the relation of general or special 
 heirs of the tenant for life, the law presumes they are to take as 
 heirs, unless, &c. (Price v. Taylor; McKee v. McKinley), 272, 273. 
 opposite presumption true (Guthrie's Appeal), 272. 
 estate tail descend, or at common law not under Intestate Act, 273. 
 any form of words showing remainder is to go to those whom the 
 law points out as the general or lineal heirs of first taker will eil- 
 large life estate to a fee or fee taU (Yarnall's Appeal; Potts' 
 Appeal), 273. 
 if life-tenant " shall have lawful issue at her decease, then to go in 
 
 fee simple to her heirs forever" (Price v. Taylor), 274. 
 " reversible after life-tenant's death to her children, if any surviving, 
 
 or issue of such children," &c. (McKee v. McKinley), 276. 
 remainder " to be equally divided among life-tenant's children and 
 
 their heirs" (Williams v. Leech), 277. 
 " to be equally divided among their children and their heirs," &e., 
 after devise in fee, cestui que trust restrained from selling (Na- 
 glee's Appeal), 278. 
 
388 
 
 INDEX. 
 
 SHELLEY'S CASE, KULE IN— continued. 
 
 "to such of life-tenant's children or their heirs as may survive her 
 
 as tenants in common," &c. (Guthrie's Appeal), 278. 
 " to all life-tenant's children, then living, and the issue of such of 
 them as may be dead, their heirs and assigns forever" (Huber's 
 Appeal), 279. 
 " to and for the only proper use and behoof of all and every the 
 child or children which she may have, their several and respect- 
 ive heirs, executors, administrators and assigns, in equal shares as 
 tenants in common" (Appeal of Jacob T. Williams), 281. 
 SIMPLE OR PASSIVE TRUSTS, 247-251. See Trusts. 
 SLANDER, 
 
 wife who deserts husband, cannot sue in her own name for, though 
 husband does not support her, 117. 
 SLANDEROUS WORDS, 
 
 spoken of husband and wife, recovery by husband will not bar action 
 
 by husband and wife for the injury to her, 116. 
 to two or more, give a separate action to each, IIQ^ 
 originated by husband, and published by defendant by husband's 
 connivance, neither husband and wife, nor wife alone, can sue, if 
 living together, 118. 
 SON, 
 
 word of purchase, 258. 
 
 may be used by the testator to mean heirs of the body. See Shel- 
 ley's Case, Rtjle in. 
 SPECIAL OR ACTIVE TRUSTS, 247. See Trusts. 
 SPECIFIC PERFORMANCE, 
 
 of contract as to wife's real estate, sought by wife, what must be set 
 
 out in bill as to title, 90. 
 where wife refuses to execute deed for husband's land, specific per- 
 formance cannot be enforced by ejectment against vendor, 68. 
 SQUARE AND ADJUST LINES, 
 
 wife may make and take conveyance to under decree of court, 349. 
 STATUTE OF USES, 244-248. See Uses. 
 
 STATUTORY INTEREST OF WIFE IN HUSBAND'S ESTATE, 
 137, 138. 
 
 where intestate leaVes widow and issue, 137. 
 where he leaves widow and collateral heirs, but no iSsue, 138. 
 where he leaves widow, but no known heirs or kindred, 138. 
 share to be in lieu and satisfaction of dower, 138. 
 dowable under Act of 1833, of a vested remainder in husband, de- 
 pendent on freehold estate in another, 138. 
 
INDEX. 5»y 
 
 STATUTOEY INTEREST, Etc.— fojiimaed 
 
 where widow elects not to take under husband's will, 138-144. 
 See Election. 
 SUBPCENA IN DIVORCE, 217-224. 
 SUE, 
 
 wife's capacity to, 114. 
 
 before Act of 1848 could not sue on contract made during 
 coverture, 114. 
 
 only on ante-nuptial contract, 114. 
 
 before that Act husband alone could sue for chattels of wife, 
 114. 
 
 at common law wife could not sue for redress of injuries 
 without husband's concurrence, and in name of both, 115. 
 
 before Act of 1848, when wife should or should not have 
 been joiAed, 115. 
 
 by Act of 1850, husband and wife may and should sue to 
 use of wife, 115, 116. 
 
 sin(^ this Act husband and wife should sue to use of wife, 116. 
 
 husband and wife cannot join in action for slander ofboth, 116. 
 
 recovery by husband for slanderous words spoken of both 
 will not prevent action by wife with husband for the in- 
 jury to her, 116. 
 
 slanderous words against two or more give separate action to 
 each, 116. 
 
 the injury and remedy are several, 116. 
 
 action on judgment by husband and wife for debt due hus- 
 band, how brought after his death, 116. 
 
 separate action of wife to protect her reputation and pro- 
 perty in certain cases, given by Act of 1856, 117. 
 
 in action for defamation of character of wife, by husband 
 and wife, husband's name may be stricken out, if he deny 
 authorizing suit, 117. 
 
 common law excludes suits between husband and wife, 117. 
 
 wife cannot maintain suit by next friend against husband on 
 contract made during coverture, before or since Act of 
 1848, 117. 
 
 if husband deserts wife, action may, perhaps, lie under Act 
 of 1856, 117. 
 
 wife who deserts husband cannot sue in her own name for 
 slander, though husband neglects to support her, 117. 
 
 nor by next friend maintain action against him for her pro- 
 perty, 117. 
 
390 INDEX. 
 
 SUE — con tinned. 
 
 nor maintain covenant against him upon ante-nuptial con- 
 tract for unliquidated damages, 118. 
 for slanderous words originated by husband, and published 
 by defendant by husband's contrivance, they, nor wife 
 alone, can sue, 118. 
 non-joinder of husband with wife, how taken advantage of, 
 118. 
 SUED, 
 
 wife's capacity to be, 114, 118. 
 
 wife could not be joined as defendant in action on contract, before 
 
 the Act of 1848, except on ante-nuptial contract, 118. 
 nor since that Act, except as changed by statute, 119. 
 as for necessaries for support of family, 119. 
 for her debts on account of her separate estate, 119. 
 upon refunding bonds, 119. 
 for purchase-money of sewing machines, 119. 
 as /erne sole trader, 119. _ 
 
 or where bequeathed personal property for life or years, and gives 
 
 security in Orphans' Court on receiving bequest, 350. 
 for debts contracted by herself for necessaries for support of family 
 
 of herself and husband, 47. 
 for these suits may be brought against the husband and wife, 47. 
 execution must first issue against husband alone, 47. 
 if no property found, an alias may issue and be satisfied out of 
 
 wife's property, 47, 48. 
 wife's estate not liable unless the debt was contracted by her and for 
 
 necessaries for support of family, 48. 
 not suflicient if debt contracted by herself and husband, 48. 
 wife must contract in her own behalf, and pleading must aver and 
 evidence clearly show this (see Sawtelle's Appeal, 4 Weekly 
 Notes 361), 48, 49. 
 judgment must show her liability, or is void, 49. 
 pleadings must show facts that bring the case within some of the 
 
 exceptions of the Act, 49. 
 presumption that wife purchased as husband's agent, 49. 
 
 this must be overcome to bind her estate, 49. 
 her subsequent declarations not sufficient, 49. 
 need not prove husband's insolvency to recover, 49. 
 
 this arises upon the execution, 50. 
 action will not lie against wife alone, 48. 
 husband to be joined as a substantial party, 48. 
 
INDEX. 391 
 
 SUED — continued. 
 
 for ante-nuptial debts of wife husband should not be joined, 119. 
 
 nor in case of power of attorney to confess judgment by /erne sole, 
 119. See Contracts op Married Women. 
 TAIL, ESTATES, 
 
 descend as at common law, and not under Intestate Act, 273. 
 TENANCY BY THE CUETESY, 105-112. See Cxjrtesy. 
 TESTIMONY IN DIVORCE, 
 
 how talien, 224, 225. See Divorce. 
 TITLE OF WIPE TO PROPEETY, 
 
 must be clear as against husband's creditors, 85-91. 
 TORTS, 
 
 frauds or crimes of wife, husband's liability for, 46. 
 TRUSTEES, 
 
 estate of governed by the duration and character of trust, 338. 
 
 limitation of real estate to, their executors, administrators and 
 assigns, gives a freehold or fee, if trust requires it, 338. 
 
 where wife Ijas property and no trustee, court may appoint one, 349., 
 
 if none named in conveyance, husband converted into one, 81. 
 TRUSTS, 
 
 offspring of uses, 243. 
 
 a use not executed under Statute of Uses, 245. 
 
 a use revived, 245. 
 
 now what uses were before Statute of Uses, 245. 
 
 system of gradually formed, 245. 
 
 no particular set of words necessary for raising, if intention clear, 
 245. 
 
 in general and enlarged sense, 245. 
 
 special, 245. 
 
 are either executory or executed, 246. 
 
 are uses that our law does not execute, 246. 
 
 advantages of in concerns of life, 246. 
 
 demand confidence and support in proper cases, 246. 
 
 where legal estate is in one and equitable in another, a trust, 247. 
 
 are either simple or special, active or passive, 247-251. 
 
 distinction between them, 247-251. 
 
 simple or passive, what, 247-251. 
 
 special or active, what, 247-251. 
 
 active — not executed by Statute of Uses, 248, 
 
 passive — executed by Statute of Uses, 249. 
 
 exceptions, 249. 
 
 duration of, 249. 
 
S92 INDEX. 
 
 TRUSTS— co)i/m«e(Z. 
 
 private dominion and public policy, two opposite principles, 249-251. 
 
 may be determined by consent of all parties in interest, 338. 
 
 duration and character of trust determines trustee's estate, 338. 
 
 active and passive, 283-310. 
 
 what an active trust, 283, 305, 306. 
 
 to receive and pay over profits, 283. 
 
 to dispose of the property, 283. 
 
 apply the rents to maintenance of cestui que trust, 283. 
 
 make repairs, pay annuities, manage estate, 283. 
 
 doctrine of Kuhn v. Newman, 283. 
 
 trusts not active where whole beneficial estate is granted, unless a 
 special reason for preserving them, 283. 
 
 to receive rents and pay over executed, 284. Kuhn v. Newman ap- 
 proved in Whichcote v. Lyle, followed in Bush's Appeal, 285. 
 authority reluctantly recognized in Kay v. Scates, 286. 
 overruled in Barnett's Appeal, 288. 
 
 active duties to perform, remainder to go under intestate laws, if no 
 issue of first takers; if issue, then, on death of first takers, to 
 their issue, an active trust, 288. 
 
 to receive and pay over rents, &c., remainder to those entitled had 
 cestui que trust died intestate, an active trust: Girard Co. v. 
 Chambers, 290. 
 
 to receive and pay over rents, &c., without being subject to debts, 
 &c., remainder to the child or children of life tenant, his, her or 
 their heirs and assigns in fee simple; in case of death without 
 issue, then over, an active trust: Shankland's Appeal, 290. 
 
 to invest and pay over interest, rents, &c., remainder to children of 
 first taker, if no issue to survivors, or children of survivors, an 
 active trust : Sheets' Estate, 291. 
 
 to maintain and educate son, with other active duties, remainder to 
 sisters and brother, an active trust : Wickham v. Berry, 293. 
 
 to receive and pay over income, remainder to right heirs, an active 
 trust : Bacon's Appeal, 294. 
 
 to receive and pay over income, remainder to those entitled under 
 intestate laws, with power of appointment, an active trust : Earp's 
 Appeal, 296. 
 
 to let real estate, invest, receive and pay over income, with other active 
 duties, remainder to those entitled under intestate laws, with 
 power of appointment, an active trust : Ashurst's Appeal, 298. 
 
 benefactor may protect a feme sole from her debts and improvi- 
 dence : Ashurst's Appeal, 298. 
 
INDEX. 393 
 
 TRnSTS—confimted. 
 
 to invest, receive and pay over income, &c., trust to continue if 
 cestui que trust marry and survive husband, remainder to cliil- 
 dren and issue of deceased children, and any surviving husband, 
 if no issue, real estate to right heirs, personal to those entitled 
 under intestate laws, with power of appointment, active trust : 
 Ash's Appeal, 301. 
 
 to invest and hold, not to be liable for debts, income to be paid over 
 to daughters, personally, during coverture, remainder to children, 
 an active trust : Phillips' Appeal, 303. 
 
 principal and income to be received and paid over, not to be liable 
 for debts of cestui que trust, nor to sale, pledge, mortgage, &c , trust 
 active : Cridland's Estate, 303. 
 
 cestui que trust to draw interest, trustee may pay over part of prin- 
 cipal, to hold moneys and take care of same and interest, an active 
 trust : Deibert's Appeal, 304. 
 
 to invest, receive and pay over income to daughters for separate use, 
 &c., an active trust : Deibert's Appeal, 304, 305. 
 
 to invest, interest to be paid over to cestui que trust only, remainder 
 to children, if no issue, then over, with a provision as to marriage 
 against consent, &c., remainder to children, an active trust : 
 Keene's Estate, 304. 
 
 rules laid down as to active trusts in Deibert's Appeal and Appeal 
 of Jacob T. Williams, 305. 
 
 to permit cestui que trust, afeme sole, to occupy, manage and let her 
 real estate, receive rents, &c., for her sole and separate use, &o., 
 remainder to those entitled under intestate laws, with certain dis- 
 cretionary powers in trustees, and with power of appointment, a 
 passive trust: Dodson v. Ball, 269, 306. 
 
 feme sole conveyed to trustee to pay over income to herself during life, 
 remainder to right heirs, with power of appointment, discretion- 
 ary powers in trustee,- a passive trust : Harkinson v. Bacon, 309. 
 
 for married women, 310. 
 
 though active or passive, preserved during joint lives of husband 
 and wife, 310, 315. 
 i on death of husband falls, 310, 315, 316. 
 
 cases illustrating this : Megargee v. Naglee, Preyvogle v. Hughes, 
 Harrison v. Brolaskey, 310-314. 
 
 for women in contemplation of marriage, 314. 
 
 gifts for separate use of feme sole, free from control of 
 future husband, trust void, unless in immediate contempla- 
 tion of marriage, 314. 
 26 
 
394 INDEX. 
 
 TRVSTS— continued. 
 
 separate use for woman cannot be created unless covert, or 
 
 in immediate contemplation of marriage, 315. 
 in either of these cases, trust to pay, or permit to receive, 
 
 trust preserved, 315. 
 meaning of "immediate contejnplation of marriage," 316. 
 the fact that trust was created in immediate contemplation of 
 marriage need not appear in instrument creating trust, 316. 
 creation of trust constitutes evidence, 316. 
 followed by marriage in reasonable time concludes the proof, 
 
 316. 
 conveyance by feme sole in trust for herself upon marriage, 
 
 strong presumption of speedy marriage, 316. 
 trust for coverture falls, if no marriage in immediate contem- 
 plation, or if a marriage, on death of husband, or divorce 
 a vinculo matrimonii, 316. 
 where trust falls on termination of coverture, not revived by 
 
 second marriage, 316. 
 cases of Wells v. MoCall and Springer v. Arundel, 317. 
 to convey, executed, 335-337. 
 conveyance of legal title unnecessary, 335-337. 
 but better to decree a conveyance, 336, 337. 
 dissipates a useless cloud upon title, 336. 
 
 ejectment may be sustained upon remainder-man's title without con- 
 veyance, 337. 
 
 USB, 
 
 what a use is, 243. 
 
 what before the Statute of .Uses, 243. 
 
 English ecclesiastics borrowed uses from Koman law to evade Stat- 
 utes of Mortmain, 244. 
 
 lands granted to third persons to use of religious houses, 244. 
 
 held to hefidei commissa and binding in conscience, 244. 
 
 perverted to mischievous purposes, 244. 
 
 struggle between patrons of uses and Parliament, 244. 
 
 Statute of Uses, 27 Henry VIII., 244. 
 
 turned interest of cestui que use into legal estate, 244. 
 
 annihilated intermediate estate of feoffee, 244. 
 
 intention of statute to extirpate abuses and frauds, theretofore prac- 
 ticed by uses, 244. 
 
 intended to destroy uses in their distinct estate, 244, 
 
 not to interfere with new modes of conveyance to uses, 244. 
 
 estate of cestui que use since the statute, 244. 
 
INDEX. 395 
 
 USE — continued. 
 
 executed use, 245. 
 
 use not executed becomes a trust whicli equity enforces, 245. 
 uses in certain cases, thougli void at law, held good in equity, 245. 
 uses tlius revived as trusts, 245. 
 uses that our law does not execute are trusts, 246. 
 USES, STATUTE OP, 244, 248. 
 VOID AND VOIDABLE MAKKIAGBS, 
 incestuous marriages, 18. 
 absence of consent, 21. 
 
 minors under the age of consent, 21. 
 persons of unsound mind, 21. 
 marriage by force or fraud, 21. 
 husband or wife living, 22. See Mareiagb. 
 VOID CONTRACTS, 25, et seq. See Contracts op Married Women. 
 WIDOW, 
 
 share in her husband's estate, 137. 
 where intestate leaves widow and issue, 137. 
 where he leaves widow and collateral heirs, but no issue, 138. 
 where he leaves widow, but no known heirs or kindred, 138. 
 share to be in lieu and satisfaction of dower, 138. 
 dowable under Act of 1833, of a vested remainder in husband, de- 
 pendent on freehold estate in another, 138. 
 ■where widow elects not to take under husband's will, to what en- 
 titled, 134, 138-144. See Election. 
 proceedings to compel election by widow, 143, 144. 
 assignment of widow's share in deceased husband's real estate, 144- 
 148. See Real Estate; Widow's Share in her Hus- 
 band's Real Estate; Partition. 
 nature of widow's share, 148, 149. See Real Estate : Widov^^'s 
 
 Share, Nature op. 
 her remedy to recover her share, 149-152. See Real Estate; 
 
 Remedy to Recover Share. 
 share to be in lieu and satisfaction of her dower at common law, 152. 
 if husband aliens lands without wife joining in conveyance, she may 
 claim her share in his estate and dower in the lands so conveyed, 
 152, 153. 
 may retain three hundred dollars, 156-164. See Exemption. 
 
 WILL, 
 
 capacity of wife to make, 131-135. 
 at common law cannot make, 131. 
 under Act of 1848 may make, 131. 
 
396 INDEX. 
 
 WILL — continued. 
 
 mode of making, 131, 182. 
 
 execution of to be judged by law as it stood at time of execution, 132. 
 
 right of wife to make, 132. 
 
 power of disposition by under Act of 1848, a general one, 132. 
 
 executed by a single woman or widow, revoked by marriage, 132. 
 
 woman divorced for adultery cohabiting with partaker in her crime, 
 
 cannot dispose of her property by will, 133. 
 as against her husband, her power of disposition, 133-135. 
 her power restricted to same extent as his is restricted as to her, 133. 
 not to affect power of appointment, 133. 
 
 widow who elects not to take under husband's will to what entitled, 13-1. 
 husband who elects not to take under wife's, to what entitled, 134. 
 WITNESSES, 
 
 how far husband and wife may be for or against each other, 120- 
 
 125. 
 at common law cannot be for or against, 120. 
 under Act of 1869 may testify for but not against, 120, 121. 
 power co-extensive with that to testify for themselves, 121. 
 when may testify for themselves in proceedings for divorce, 121. 
 their competency to testify against each other unaffected by Act 
 
 of 1869, 122. 
 when privilege may be waived in favor of adverse party, 122. 
 husband not competent witness to support his claim against estate 
 
 of deceased wife, 123. 
 in ejectment against widow by heirs of husband, she not competent 
 
 witness for herself, 123. 
 in ejectment by husband and wife in right of wife for land sold as 
 
 the husband's, wife competent witness for plaintiffs, 123. 
 in replevin by wife for personal property sold by husband, she may 
 
 testify for herself, 123. 
 in proceedings for divorce husband and wife cannot be made to 
 
 testify against themselves, 124. 
 in a contest between creditors of husband wife may be a competent 
 
 witness, 124. 
 after husband's death wife may be witness to prove matters to which 
 
 he was a party, 124. 
 WRITINGS OBLIGATOEY OR OTHER PERSONAL OBLIGA- 
 TIONS, 
 
 wife cannot execute, 56. See Conteacts op Married Women. 
 

 titJuBHBIHfl^H